The Treatment of Data Influenced by Exceptional Events (Exceptional Event Rule): Revised Exceptional Event Data Flagging Submittal and Documentation Schedule for Monitoring Data Used in Designations for the 2008 Ozone NAAQS, 23307-23313 [E9-11642]
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[FR Doc. E9–11554 Filed 5–18–09; 8:45 am]
BILLING CODE 4910–13–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 50
[EPA–HQ–OAR–2005–0159; FRL–8907–1]
RIN 2060–AP56
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The Treatment of Data Influenced by
Exceptional Events (Exceptional Event
Rule): Revised Exceptional Event Data
Flagging Submittal and Documentation
Schedule for Monitoring Data Used in
Designations for the 2008 Ozone
NAAQS
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is finalizing amendments
to the Exceptional Events Rule to
provide a revised exceptional event data
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flagging and documentation schedule
for ozone data that may be used for
designations under the 2008 ozone
National Ambient Air Quality Standards
(NAAQS). The Exceptional Events Rule
states that when EPA sets a NAAQS for
a new pollutant or revises the NAAQS
for an existing pollutant, EPA may
revise or set a new schedule for flagging
data for those NAAQS. EPA recently
revised the primary and secondary
ozone NAAQS to protect public health
and welfare; the revised standards
became effective May 27, 2008.
Consistent with the process envisioned
in the Exceptional Events Rule, this
final rule revises the dates for flagging
data and submitting documentation
regarding exceptional events under the
revised ozone NAAQS. This revised
schedule allows EPA to fully consider
State requests for exceptional event
concurrence prior to EPA making final
designations.
DATES: This final rule is effective June
18, 2009.
ADDRESSES: EPA has established a
docket for this rulemaking under Docket
ID number EPA–HQ–OAR–2005–0159.
All documents in the docket are listed
in the https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., confidential business information
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.
Publicly available docket materials are
available either electronically in https://
www.regulations.gov or in hard copy at
the EPA Docket Center EPA/DC, EPA
West, Room 3334, 1301 Constitution
Ave., NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566–1744, and the telephone
number for the EPA Docket Center is
(202) 566–1742.
FOR FURTHER INFORMATION CONTACT:
Thomas E. Link, Air Quality Planning
Division, Office of Air Quality Planning
and Standards, Mail Code C539–04,
Environmental Protection Agency,
Research Triangle Park, North Carolina
27711; telephone number: 919–541–
5456; fax number: 919–541–0824;
e-mail address: link.tom@epa.gov.
SUPPLEMENTARY INFORMATION:
Outline
I. Why Is EPA Issuing This Final Rule?
II. Does This Action Apply to Me?
III. What Is the Background for This Action?
IV. Public Comment and Agency Response
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23307
V. What Are the Amendments Included in
the Final Rule?
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
I. Why Is EPA Issuing This Final Rule?
This final action provides for a
revised schedule to flag data and submit
documentation related to exceptional
events that influence ozone data which
may affect designations under the
recently revised ozone NAAQS. This
action creates no additional regulatory
requirements compared to those already
promulgated in the Exceptional Events
Rule.
II. Does This Action Apply to Me?
States are responsible for identifying
air quality data that they believe warrant
special consideration, including data
affected by exceptional events. States
identify such data by flagging (making a
notation in a designated field in the
electronic data record) specific values in
the Air Quality System (AQS) database.
States must flag the data and submit a
justification that the data are affected by
exceptional events if they wish EPA to
consider excluding the data in
determining whether or not an area is
attaining the revised ozone NAAQS.
All States that include areas that
could exceed the ozone NAAQS and
could therefore be designated as
nonattainment for the ozone NAAQS
have the potential to be affected by this
rulemaking. Therefore, this action
applies to all States; to local air quality
agencies to which a State has delegated
relevant responsibilities for air quality
management including air quality
monitoring and data analysis; and, to
Tribal air quality agencies where
appropriate. The Exceptional Events
Rule describes in greater detail to whom
the Rule applies in 72 FR 13562–13563
(March 22, 2007).
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III. What Is the Background for This
Action?
CAA Section 319(b)(2) authorizes EPA
to promulgate regulations that govern
the review and handling of air quality
monitoring data influenced by
exceptional events. Under this
authority, EPA promulgated the
Exceptional Events Rule (Treatment of
Data Influenced by Exceptional Events)
(72 FR 13560, March 22, 2007) which
sets a schedule for States to flag
monitored data affected by exceptional
events in AQS and for them to submit
documentation to demonstrate that the
flagged data were impacted by an
exceptional event. Under this schedule,
a State must initially notify EPA that
data have been affected by an
exceptional event by July 1 of the year
after the data are collected; this is
accomplished by flagging the data in
AQS. The State must also include an
initial description of the event when
flagging the data. In addition, the State
is required to submit a full
demonstration to justify exclusion of
such data within three years after the
quarter in which the data were
collected, or if a regulatory decision
based on the data (such as a designation
action) is anticipated, the demonstration
must be submitted to EPA no later than
one year before the decision is to be
made.
The rule also authorizes EPA to revise
data flagging and documentation
schedules for the initial designation of
areas under a new or revised NAAQS.
This generic schedule, while
appropriate for the period after initial
designations have been made under a
NAAQS, may need adjustment when a
new or revised NAAQS is promulgated
because until the level and form of the
NAAQS have been promulgated a State
would not have complete knowledge of
the criteria for excluding data. In these
cases the generic schedule may preclude
States from submitting timely flags and
associated documentation for otherwise
approvable exceptional events. This
could, if not modified, result in some
areas receiving a nonattainment
designation when the NAAQS
violations were legitimately due to
exceptional events.
For example, EPA finalized new
standards for ozone of 0.075 parts per
million (ppm) on March 12, 2008 with
an effective date of May 27, 2008. In
accordance with Clean Air Act (CAA)
Section 107(b), State Governors must
provide their recommendations to EPA
by March 12, 2009 on designating areas
as attainment, nonattainment, or
unclassifiable with the new standards.
States are to base their
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recommendations on the three most
recent years of complete, certified air
quality data, which we expect would be
ozone data collected for calendar years
2006–2008 or 2005–2007. EPA must
complete final area designations for
these new standards by March 12, 2010.
EPA will base its designations decisions
on the three most recent years of
complete certified air quality data
available for each area. This could be
ozone data collected during calendar
years 2007–2009 where States have
submitted complete, certified ozone
data for 2009 more quickly than is
required. However, in some cases the
most recent complete, certified data may
cover 2006–2008 or 2005–2007. For
these data years, the generic exceptional
event flagging deadline for 2005 and
2006 data has already passed and the
flagging deadline for exceptional events
that occurred in 2007 would be July 1,
2008—approximately 33 days after the
effective date of the revised NAAQS. In
addition, the generic schedule would
require States to submit demonstrations
for 2009 data influenced by exceptional
events no later than March 12, 2009, one
year before the final designation
decisions. This is clearly not possible
for air quality data collected from March
13, 2009 to December 31, 2009.
EPA is, therefore, using the authority
provided in CAA section 319(b)(2) and
in the Exceptional Events Rule at 40
CFR 50.14(c)(2)(vi), to modify the
schedule for data flagging and
submission of demonstrations for
exceptional events data considered for
initial designations under the 2008
revised ozone NAAQS.
IV. Public Comment and Agency
Response
On November 20, 2008, the Natural
Resources Defense Council (NRDC)
provided comments to EPA on a Direct
Final Action and the concurrent
proposal for this rule. The direct final
rule was subsequently withdrawn. A
summary of NRDC’s comments and the
Agency’s responses to its comments are
shown below.
Comment: NRDC asserts that the
Exceptional Events Rule (EER) does not
authorize EPA to change the schedule
for submission of demonstrations and
that EPA lacks statutory authority to
revise the flagging and documentation
deadlines in the Exceptional Events
Rule. [Comment Letter from NRDC to
EPA Docket ID No. EPA–HQ–OAR–
2005–0159; Public Comment on EPA
Direct Final Rule and Proposed Rule,
dated November 20, 2008, at p. 2, para
2.] NRDC notes that although the EER
includes provisions for revising the
schedule for flagging data, it does not
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include a similar provision for the
submission of demonstrations.
Therefore, the commenter concludes
that EPA’s actions to revise the
schedules for flagging and submitting
documentation for exceptional events
are unlawful. The commenter also cites
to certain principles enumerated in the
rule that use the word ‘timely’ as a
reason for not revising the schedules for
flagging and submission of data. An
additional argument that the commenter
puts forward for not changing the
schedules is that the commenter notes
that the EER schedule provides EPA
ample time to evaluate exceptional
events data before authorizing waiver of
the data.
Response: EPA disagrees with the
commenter. CAA section 319(b)(2)
expressly authorizes EPA to promulgate
regulations ‘‘governing the review and
handling of air quality monitoring data
influenced by exceptional events.’’
Pursuant to this authority, EPA
promulgated ‘‘The Treatment of Data
Influenced by Exceptional Events
(Exceptional Event Rule)’’ [72 FR
13562–13563 (March 22, 2007)] which
sets out the process and substance of
EPA’s review and handling of the data
impacted by exceptional events. For the
review process in the EER, EPA
included schedules for flagging, public
comment, and submission of
documentation related to exceptional
events. 40 CFR 50.14(c). As the
commenter notes, EPA included a
provision stating that it ‘‘may revise or
set a new schedule for flagging data’’
when a new or revised NAAQS was
promulgated. 40 CFR 50.14 (c)(2)(vi).1
From this, the commenter concludes
that just because EPA did not expressly
include a similar provision for the
submission of documentation, it no
longer has the authority to revise its
own rule. An agency may revise or
amend its rules or interpretations
provided it follows the appropriate
procedures such as notice and comment
rulemaking. EPA explained that the
reason for amending the schedules was
to provide States with time to evaluate
their data under the new NAAQS and
determine whether such data should be
flagged for consideration as an
exceptional event. Under the older, less
stringent NAAQS, States may have
determined that, for purposes of
efficiency and resource management,
even where exceptional events had
occurred, the State would not flag that
data because it would not have affected
1 The original rule provision was numbered as
(c)(2)(v) and is now renumbered to (c)(2)(vi) since
the publication of the new Pb NAAQS in October
2008.
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their designation status under the older
NAAQS. If however, under the revised
NAAQS, certain exceptional events that
were not flagged or for which
documentation was not submitted,
would be relevant to designation under
the new NAAQS, EPA believes that
these should not be precluded from
consideration. In response to the
commenter’s references to the principles
in section 319 that EPA must
promulgate regulations that provide
‘timely’ information to the public when
air quality is unhealthy and provide for
all ambient air quality data to be
included in a timely manner in the air
quality database, EPA notes that all the
past data are already in the database and
States must continue to submit all their
data on a timely basis to the database.
During the review of the data for
purposes of designations, EPA is
permitting States a limited time to flag
the data and to submit documentation.
As noted elsewhere, the public will
receive timely information about such
flagging and documentation when States
provide the public an opportunity to
comment before they submit the
documentation to EPA. In addition, 40
CFR 51.930 contains provisions for
notifying the public when the air is
unhealthy. While EPA appreciates the
commenter’s concern that the Agency
should have ample time to evaluate the
exceptional events claim, EPA believes
that the revised schedule is a realistic
and practical one that balances the
Agency’s needs with the needs of the
States.
Comment: The commenter states that
the ‘‘updated ozone NAAQS and
Exceptional Rule’’ should not be
applied retroactively. According to the
commenter, EPA’s revision to the
schedule suggests that EPA intends to
permit retroactive application of the
‘‘new ozone NAAQS and new
Exceptional Event Rule’’ to ‘‘old
monitoring data and to re-brand
previous data as NAAQS violations that
are excludable from attainment
designations * * *’’ NRDC Letter at p.
5. The commenter claims that the
amendment to the schedule is unlawful
for four reasons. First, according to the
commenter because section 319
includes a provision that explicitly
keeps in place then-existing guidance
until the effective date of the rule (May
21, 2007), the policies would apply to
any data generated before that date. The
commenter’s second point repeats the
first proposition that the regulatory text
and EPA’s construal of that text cannot
be applied to events before May 21,
2007. The commenter’s third point is
that because EPA’s pre-existing
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exceptional events policies applied to
data before May 21, 2007, amending the
EER is not a proper or lawful vehicle for
revising the deadlines submitted
pursuant to previous guidance. And
finally, the commenter contends that
data indicating concentrations above the
updated ozone NAAQS, but not of the
then-existing standard, cannot
constitute an exceptional event. The
commenter cites to the EER which
permits States to request EPA to exclude
data showing ‘‘exceedances or
violations’’ of the NAAQS and citing to
the definition of an ‘‘exceedance’’ at 40
CFR 50.1 to support their argument that
an exceedance for data before May 27,
2008 (the effective date of the revised
ozone NAAQS) means concentrations
that exceed the concentration levels of
the previous standard. The commenter
argues that an air monitoring
concentration that exceeds the new
standard but did not exceed the thenapplicable standard cannot constitute an
‘‘exceedance’’ under the EER for
designations under the revised NAAQS.
The commenter also contends that
although EPA provided some
explanation for its actions, it did not
amount to a sufficient explanation for
its actions. In various footnotes, the
commenter notes the differences
between the general schedule in the EER
and the revised flagging and submission
of documentation schedules for ozone,
noting that the flagging and submissions
would be ‘‘barred’’ under the EER. The
commenter also enumerates certain
policy reasons for not revising the
schedule such as it would provide local
air control authorities an opportunity to
‘‘cook the books’’ and adopt a
‘‘revisionist’’ approach that led to
‘‘creat[ing]’’ exceptional events.
Response: EPA is not applying either
the revised ozone NAAQS or the
Exceptional Events Rule retroactively to
‘‘old air monitoring data’’ as the
commenter contends. The commenter’s
statements regarding the revised
NAAQS and the applicability of the old
NAAQS mischaracterizes the process of
designating areas as attainment or
nonattainment. EPA promulgated the
revised ozone NAAQS on March 12,
2008 and under CAA section 107 States
must submit their initial
recommendations for designating areas
by March 12, 2009. EPA will issue final
designations by March 12, 2010 unless
it has insufficient information to issue
such designations. In such cases, EPA
must make its final designations by
March 2011. State recommendations are
based on whether the 3-year average of
the annual fourth-highest daily
maximum 8-hour average O3
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concentration is less than or equal to
0.075 ppm. The 3-year average is
computed by using the three most
recent consecutive calendar years of
monitoring data that meet the
monitoring completeness and other
requirements of 40 CFR Part 50,
Appendix P. Therefore, when States
submit their recommended designations
to EPA in March 2009 for the revised
ozone NAAQS based on the three most
recent consecutive calendar years of
complete, certified monitoring date they
will generally be using data from the
2005–2007 or 2006–2008 periods. When
EPA issues final designations in March
2010, States could possibly have
complete, certified data for 2009 so that
EPA may base its determination on
2007–2009 data years. Thus, EPA is not
looking at ‘‘old monitoring data’’ with a
view to ‘‘re-branding’’ NAAQS
violations as meeting the standard;
instead, EPA is evaluating the three
most recent years of complete, certified
data that exist at the time of the
designations, which are the relevant
data years as required by 40 CFR Part
50, App. P.
Section 319’s interim provision kept
in place certain specific pre-existing
guidance and rules regarding
exceptional events through the
rulemaking period but only until the
effective date of the EER. The EER
became effective on May 21, 2007 and
is applicable to regulatory decisions
made after that date including decisions
regarding exceptional events for the
relevant data years that form the basis
for such decisions. The designation of
an area as attainment or non-attainment
is based on the revised ozone NAAQS
(not the older NAAQS) which was
promulgated on March 12, 2008—a year
after the promulgation of the EER. The
commenter’s argument that the EER is
not applicable to regulatory decisions
under the revised March 2008 ozone
NAAQS because it would be a
retroactive application of the rule is
thus without any basis.
The commenter’s claim that for a
measured concentration to qualify as an
exceedance under the revised ozone
NAAQS, it must have been at a
concentration level greater than the
older NAAQS which is not applicable or
relevant to the present designation is
clearly erroneous. The current
designation determinations are based on
the levels established by the revised
ozone NAAQS, an ‘‘exceedance’’ in this
instance is therefore clearly a
concentration that exceeds the revised
NAAQS. See 40 CFR 50.1 (‘‘Exceedance
with respect to a [NAAQS] means one
occurrence of a measured or modeled
concentration that exceeds the specified
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concentration level of such standard for
the averaging period specified by the
standard’’). Thus, the commenter’s
policy rationales (such as encouraging
local authorities to cook the books) for
not amending the schedules are also not
persuasive because as explained above,
EPA is permitting States to evaluate data
under an amended schedule for the
purposes of designations under the
revised ozone NAAQS.
EPA believes it provided sufficient
and appropriate explanation for its
action including the explanations that
the commenter quotes regarding how a
State might not have known the criteria
for excluding the data until the level
and form of the NAAQS were
promulgated. See NRDC Letter at pp.3–
4. As for the comments regarding how
certain submissions would not be timely
under the EER, EPA notes that those
reasons further support revising the
schedule.
Comment: The commenter states that
the revised schedule would unlawfully
limit public participation for two
reasons. First, the petitioner claims that
flagging and submission of detailed
documentation cannot have the same
deadline because that would not allow
for 30-day comment period by States
before they submit their documentation.
Second, if an event were to occur on
December 31, 2009, a 30-day comment
period would push the deadline to no
earlier than January 31, 2010.
Response: In response to the
commenter’s second point EPA has
modified the proposed deadline for
2009 and is now requiring that for
exceptional events claims for 2009 data
to be considered, States must submit
their completed documentation within
60 days of the end of a calendar quarter
in which the exceptional event occurred
or by February 5, 2010 whichever is
earlier. This would provide sufficient
time for a public comment period and
provide EPA sufficient time to review
data prior to making designations. As
for commenter’s first point, EPA
anticipates that States generally will flag
data before they submit documentation
on an exceptional event. However, if a
State has put its exceptional events
documentation together, notified the
public of its intent to flag the data and
seek exclusion of the data and provided
an opportunity for the public to
comment on the demonstration, EPA
believes it is not necessary in such
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instances to preclude consideration of
such submissions because the data has
not been flagged in the air quality
database until the deadline. The more
significant issue is whether the State has
put together an adequate demonstration
and provided an opportunity for public
comment and included those comments
in the submission to EPA. EPA
concludes that the schedule as revised
will provide adequate time for all of
these steps.
Comment: The commenter notes that
the EER has been challenged and that
the United States Court of Appeals for
the DC Circuit heard oral argument in
NRDC v. EPA, Nos. 07–1151 & 08–1057
(consolidated) on October 10, 2008 and
an opinion is still pending. The
commenter states that given that there is
a possibility that certain portions of the
rule may be vacated and/or remanded to
the Agency, the agency must delay
finalizing its proposed amendment to
the rule until after the DC Circuit
announces its decision.
Response: The challenges to the rule
cited by the commenter did not raise
any issues relating to deadlines for
flagging or submissions of
documentation relating to exceptional
events. The commenter has not brought
to EPA’s attention any support for its
assertion that EPA ‘‘must’’ delay
modifying the EER in the manner
proposed by the commenter, and EPA is
unaware of any such restriction.
Therefore, EPA believes that its limited
revision of the rule specifically only to
address the deadlines related to flagging
and submission of documentation is not
at odds with and should not interfere
with the Court’s review of the challenge
to the rule on other grounds.
V. What Are the Amendments Included
in the Final Rule?
This final rule amends the
Exceptional Events Rule by providing a
revised exceptional event data flagging
and documentation schedule regarding
claimed exceptional events affecting
ozone monitoring data that will be
compared to the 2008 revised ozone
NAAQS for the purpose of initial ozone
designations. In some cases, EPA is
extending the otherwise applicable
deadline for States to flag data and
submit documentation. In other cases,
EPA is shortening the otherwise
applicable schedule to assure that the
exceptional events claims can be fully
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considered by EPA in the designations
decisions.
For air quality data collected in the
years 2005 through 2007, this revised
schedule extends the generic schedule
for flagging data (and providing a brief
initial description of the event) from
July 1 of the year following the year the
data are collected, to June 18, 2009. For
data collected in 2008, the revised
schedule accelerates the generic
schedule for flagging data and providing
a brief initial description of the event to
June 18, 2009. The deadline for
submitting to EPA a detailed
demonstration to justify exclusion of
data collected in 2005 through 2008 is
also being set to June 18, 2009. The
deadline for submitting to EPA flagged
data with initial descriptions and a
detailed demonstration to justify
exclusion of data collected in 2009 is
being set to 60 days after the end of the
calendar quarter in which the
exceptional event occurred or February
5, 2010, whichever date occurs first. For
data collected in 2008 and 2009 this
would give a State less time, but EPA
believes still sufficient time, to decide
what 2008 and 2009 data to flag and to
submit documentation relating to
exceptional events, and would allow
EPA to have access to the flags and
supporting data in time for EPA to
evaluate the States recommendation and
issue final designations. While the new
deadlines for submission of a State’s
demonstration for data collected in 2009
is less than a year before the designation
decisions would be made, EPA believes
it is a reasonable approach between
giving States a reasonable period to
prepare the justifications, and EPA a
reasonable period to consider the
information submitted by the State.
With this final rule EPA amends § 50.14
(c)(2)(vi) to add a tabular schedule of
data submittal deadlines, by pollutant,
for new or revised NAAQS standards.
(PM2.5 data submittal schedules revised
in March 2007 and presented in this
table are for informational purposes
only. EPA is not taking further comment
on the PM2.5 data submittal schedule
published in 72 FR 13560, March 22,
2007.) EPA anticipates providing
amendments to the following table to
add flagging and data submission
schedules for new or revised NAAQS
standards in the future.
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23311
TABLE 1—SCHEDULE FOR EXCEPTIONAL EVENT FLAGGING AND DOCUMENTATION SUBMISSION FOR DATA TO BE USED IN
DESIGNATIONS DECISIONS FOR NEW OR REVISED NAAQS
NAAQS pollutant/
standard/(level)/
promulgation date
Air quality data collected for
calendar year
Event flagging & initial
description deadline
PM2.5 24-Hr Standard (35 μg/m3)
Promulgated October 17, 2006.
Ozone/8-Hr Standard (0.075 ppm)
Promulgated March 12, 2008.
2004–2006 ....................................
October 1, 2007 a .........................
April 15, 2008.a
2005–2007 ....................................
June 18, 2009 b ............................
June 18, 2009.b
2008 ..............................................
2009 ..............................................
June 18, 2009 b ............................
60 Days after the end of the calendar quarter in which the
event occurred or February 5,
2010, whichever date occurs
firstb.
June 18, 2009.b
60 Days after the end of the calendar quarter in which the
event occurred or February 5,
2010, whichever date occurs
first.b
Detailed documentation
submission deadline
a These
dates are unchanged from those published in the original rulemaking, and are shown in this table for informational purposes.
change from general schedule in 40 CFR 50.14.
Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final initial designations for new or revised NAAQS. The general schedule applies for all other purposes, most notably, for data used by EPA for redesignations to attainment.
b Indicates
VI. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order (EO) 12866 (58 FR
51735, October 4, 1993) and is therefore
not subject to review under the EO.
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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. Burden is
defined at 5 CFR 1320.3(b). This rule
modifies previously established
deadlines under the Exceptional Events
Rule and does not impose any new
obligations or enforceable duties on any
State, local or Tribal governments or the
private sector. Therefore, it does not
impose an information collection
burden.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of this rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
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15:21 May 18, 2009
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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 this final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
This rule modifies previously
established deadlines under the
Exceptional Events Rule and does not
impose any new obligations or
enforceable duties on any State, local or
Tribal governments or the private sector.
Thus, it does not impose any
requirements on small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or Tribal
governments or the private sector. This
action imposes no enforceable duty on
any State local or Tribal governments or
the private sector. This action modifies
previously established deadlines under
the Exceptional Events Rule and does
not impose any new obligations or
enforceable duties on any State, local or
Tribal governments or the private sector.
Therefore, this action is not subject to
the requirements of sections 202 and
205 of the UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. This
rule modifies previously established
deadlines under the Exceptional Events
Rule and does not impose any new
PO 00000
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Fmt 4700
Sfmt 4700
obligations or enforceable duties on any
small governments.
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
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 final 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 rule
modifies previously established
deadlines under the Exceptional Events
Rule and does not impose any new
obligations or enforceable duties on any
State, local or Tribal governments or the
private sector. Thus, Executive Order
13132 does not apply to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). This rule modifies previously
established deadlines under the
Exceptional Events Rule and does not
impose any new obligations or
E:\FR\FM\19MYR1.SGM
19MYR1
23312
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations
enforceable duties on Tribal
governments. Thus, Executive Order
13175 does not apply to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
This action is not subject to EO 13045
(62 FR 19885, April 23, 1997) because
the Agency does not believe the
environmental health risks or safety
risks addressed by this action present a
disproportionate risk to children. This
action is not subject to Executive Order
13045 because it does not establish an
environmental standard intended to
mitigate health or safety risks.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to the
Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a
significant regulatory action under
Executive Order 12866.
I. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This action does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this final
rule will not have disproportionately
high and adverse human health or
environmental effects on minority or
low-income populations because it will
not affect the level of protection
provided to human health or the
environment. This rule modifies
previously established deadlines under
the Exceptional Events Rule and does
not impose any new obligations or
enforceable duties on any State, local or
Tribal governments or the private sector.
It will neither increase nor decrease
environmental protection.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective June 18, 2009.
L. Judicial Review
Under CAA section 307(b), judicial
review of this final action is available
only by filing a petition for review in
the U.S. Court of Appeals for the District
of Columbia Circuit on or before July 20,
2009. Under CAA section 307(d)(7)(B),
only those objections to the final rule
that were raised with specificity during
the period for public comment may be
raised during judicial review. Moreover,
under CAA section 307(b)(2), the
requirements established by this final
rule may not be challenged separately in
any civil or criminal proceedings
brought by EPA to enforce these
requirements.
List of Subjects in 40 CFR Part 50
Environmental protection, Air
pollution control, Carbon monoxide,
Lead, Nitrogen dioxide, Ozone
Particulate Matter, Sulfur oxides.
Dated: May 13, 2009.
Lisa P. Jackson,
Administrator.
For the reasons set forth in the
preamble, part 50 of chapter I of title 40
of the Code of Federal Regulations is
amended as follows:
PART 50—[AMENDED]
1. The authority citation for part 50
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
Subpart A—General Provisions
2. Section 50.14 is amended by
revising paragraph (c)(2)(vi) to read as
follows:
■
§ 50.14 Treatment of air quality monitoring
data influenced by exceptional events.
*
*
*
*
*
(c) * * *
(2) * * *
(vi) When EPA sets a NAAQS for a
new pollutant or revises the NAAQS for
an existing pollutant, it may revise or
set a new schedule for flagging
exceptional event data, providing initial
data descriptions and providing detailed
data documentation in AQS for the
initial designations of areas for those
NAAQS: Table 1 provides the schedule
for submission of flags with initial
descriptions in AQS and detailed
documentation and the schedule shall
apply for those data which will or may
influence the initial designation of areas
for those NAAQS. EPA anticipates
revising Table 1 as necessary to
accommodate revised data submission
schedules for new or revised NAAQS.
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TABLE 1—SCHEDULE FOR EXCEPTIONAL EVENT FLAGGING AND DOCUMENTATION SUBMISSION FOR DATA TO BE USED IN
DESIGNATIONS DECISIONS FOR NEW OR REVISED NAAQS
NAAQS pollutant/
standard/(level)/
promulgation date
Air quality data collected for
calendar year
Event flagging & initial
description deadline
PM2.5/24-Hr Standard (35 μg/m3)
Promulgated October 17, 2006.
2004–2006 ....................................
October 1, 2007a ..........................
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Detailed documentation
submission deadline
April 15, 2008.a
19MYR1
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations
23313
TABLE 1—SCHEDULE FOR EXCEPTIONAL EVENT FLAGGING AND DOCUMENTATION SUBMISSION FOR DATA TO BE USED IN
DESIGNATIONS DECISIONS FOR NEW OR REVISED NAAQS—Continued
NAAQS pollutant/
standard/(level)/
promulgation date
Air quality data collected for
calendar year
Event flagging & initial
description deadline
Ozone/8-Hr Standard (0.075 ppm)
Promulgated March 12, 2008.
2005–2007 ....................................
June 18, 2009b .............................
June 18, 2009.b
2008 ..............................................
2009 ..............................................
June 18, 2009b .............................
60 Days after the end of the calendar quarter in which the
event occurred or February 5,
2010, whichever date occurs
first.b.
June 18, 2009.b
60 Days after the end of the calendar quarter in which the
event occurred or February 5,
2010, whichever date occurs
first.b
Detailed documentation
submission deadline
a These
dates are unchanged from those published in the original rulemaking, and are shown in this table for informational purposes.
change from general schedule in 40 CFR 50.14.
Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final initial designations for new or revised NAAQS. The general schedule applies for all other purposes, most notably, for data used by EPA for redesignations to attainment.
b Indicates
*
*
*
*
*
[FR Doc. E9–11642 Filed 5–18–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 60 and 61
[EPA–R09–OAR–2008–0860; FRL–8905–8]
Delegation of New Source
Performance Standards and National
Emission Standards for Hazardous Air
Pollutants for the States of Arizona,
California, Hawaii, and Nevada
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
EPA is finalizing updates to
the Code of Federal Regulations (CFR)
delegation tables to reflect the current
delegation status of New Source
Performance Standards (NSPS) and
National Emission Standards for
Hazardous Air Pollutants (NESHAP) in
Arizona, California, Hawaii, and
Nevada.
SUMMARY:
DATES: This rule is effective on July 20,
2009 without further notice, unless EPA
receives adverse comments by June 18,
2009. If the Federal Register to notify
the public that this direct final rule will
not take effect.
ADDRESSES: Submit comments,
identified by docket number [EPA–R09–
OAR–2008–0860], by one of the
following methods:
1. Federal eRulemaking Portal:
www.regulations.gov. Follow the on-line
instructions.
2. E-mail: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel
(Air-4), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
https://www.regulations.gov or e-mail.
https://www.regulations.gov is an
‘‘anonymous access’’ system, and EPA
will not know your identity or contact
information unless you provide it in the
body of your comment. If you send email directly to EPA, your e-mail
address will be automatically captured
and included as part of the public
comment. 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.
Docket: The index to the docket for
this action is available electronically at
https://www.regulations.gov and in hard
copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While
all documents in the docket are listed in
the index, some information may be
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Agency
15:21 May 18, 2009
Jkt 217001
FOR FURTHER INFORMATION CONTACT:
Cynthia Allen, EPA Region IX, (415)
947–4120, allen.cynthia@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. Background
II. EPA Action
III. Statutory and Executive Order Reviews
I. Background
Today’s action will update the
delegations tables in 40 CFR parts 60
and 61, to allow easier access by the
public to the status of delegations in
various state or local jurisdictions. The
updated delegation tables include the
delegations approved in response to
recent requests, as well as those
previously granted. Those tables are
shown at the end of this document.
Recent requests for delegations that
will be incorporated into the CFR tables
are identified below. Each individual
submittal identifies the specific NSPS
and NESHAP for which delegation was
requested. All of these requests have
already been approved by letter and
simply need to be included in the CFR
tables.
Date of request
Arizona Department of Environmental Quality .........................................
Maricopa County Air Quality Department ................................................
Pima County Department of Environmental Quality ................................
Kern County Air Pollution Control District ................................................
San Diego County Air Pollution Control District .......................................
South Coast Air Quality Management District .........................................
VerDate Nov<24>2008
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
PO 00000
Frm 00025
Fmt 4700
April 17, 2008.
April 21, 2006.
May 23, 2008.
January 11, 2007.
October 31, 2007.
October 17, 2006, and July 25, 2007.
Sfmt 4700
E:\FR\FM\19MYR1.SGM
19MYR1
]]>Agencies
[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Rules and Regulations]
[Pages 23307-23313]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-11642]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 50
[EPA-HQ-OAR-2005-0159; FRL-8907-1]
RIN 2060-AP56
The Treatment of Data Influenced by Exceptional Events
(Exceptional Event Rule): Revised Exceptional Event Data Flagging
Submittal and Documentation Schedule for Monitoring Data Used in
Designations for the 2008 Ozone NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is finalizing amendments to the Exceptional Events Rule to
provide a revised exceptional event data flagging and documentation
schedule for ozone data that may be used for designations under the
2008 ozone National Ambient Air Quality Standards (NAAQS). The
Exceptional Events Rule states that when EPA sets a NAAQS for a new
pollutant or revises the NAAQS for an existing pollutant, EPA may
revise or set a new schedule for flagging data for those NAAQS. EPA
recently revised the primary and secondary ozone NAAQS to protect
public health and welfare; the revised standards became effective May
27, 2008. Consistent with the process envisioned in the Exceptional
Events Rule, this final rule revises the dates for flagging data and
submitting documentation regarding exceptional events under the revised
ozone NAAQS. This revised schedule allows EPA to fully consider State
requests for exceptional event concurrence prior to EPA making final
designations.
DATES: This final rule is effective June 18, 2009.
ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID number EPA-HQ-OAR-2005-0159. All documents in the docket are
listed in the https://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., confidential
business information 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. Publicly available docket materials are available
either electronically in https://www.regulations.gov or in hard copy at
the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the EPA Docket Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Thomas E. Link, Air Quality Planning
Division, Office of Air Quality Planning and Standards, Mail Code C539-
04, Environmental Protection Agency, Research Triangle Park, North
Carolina 27711; telephone number: 919-541-5456; fax number: 919-541-
0824; e-mail address: link.tom@epa.gov.
SUPPLEMENTARY INFORMATION:
Outline
I. Why Is EPA Issuing This Final Rule?
II. Does This Action Apply to Me?
III. What Is the Background for This Action?
IV. Public Comment and Agency Response
V. What Are the Amendments Included in the Final Rule?
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
I. Why Is EPA Issuing This Final Rule?
This final action provides for a revised schedule to flag data and
submit documentation related to exceptional events that influence ozone
data which may affect designations under the recently revised ozone
NAAQS. This action creates no additional regulatory requirements
compared to those already promulgated in the Exceptional Events Rule.
II. Does This Action Apply to Me?
States are responsible for identifying air quality data that they
believe warrant special consideration, including data affected by
exceptional events. States identify such data by flagging (making a
notation in a designated field in the electronic data record) specific
values in the Air Quality System (AQS) database. States must flag the
data and submit a justification that the data are affected by
exceptional events if they wish EPA to consider excluding the data in
determining whether or not an area is attaining the revised ozone
NAAQS.
All States that include areas that could exceed the ozone NAAQS and
could therefore be designated as nonattainment for the ozone NAAQS have
the potential to be affected by this rulemaking. Therefore, this action
applies to all States; to local air quality agencies to which a State
has delegated relevant responsibilities for air quality management
including air quality monitoring and data analysis; and, to Tribal air
quality agencies where appropriate. The Exceptional Events Rule
describes in greater detail to whom the Rule applies in 72 FR 13562-
13563 (March 22, 2007).
[[Page 23308]]
III. What Is the Background for This Action?
CAA Section 319(b)(2) authorizes EPA to promulgate regulations that
govern the review and handling of air quality monitoring data
influenced by exceptional events. Under this authority, EPA promulgated
the Exceptional Events Rule (Treatment of Data Influenced by
Exceptional Events) (72 FR 13560, March 22, 2007) which sets a schedule
for States to flag monitored data affected by exceptional events in AQS
and for them to submit documentation to demonstrate that the flagged
data were impacted by an exceptional event. Under this schedule, a
State must initially notify EPA that data have been affected by an
exceptional event by July 1 of the year after the data are collected;
this is accomplished by flagging the data in AQS. The State must also
include an initial description of the event when flagging the data. In
addition, the State is required to submit a full demonstration to
justify exclusion of such data within three years after the quarter in
which the data were collected, or if a regulatory decision based on the
data (such as a designation action) is anticipated, the demonstration
must be submitted to EPA no later than one year before the decision is
to be made.
The rule also authorizes EPA to revise data flagging and
documentation schedules for the initial designation of areas under a
new or revised NAAQS. This generic schedule, while appropriate for the
period after initial designations have been made under a NAAQS, may
need adjustment when a new or revised NAAQS is promulgated because
until the level and form of the NAAQS have been promulgated a State
would not have complete knowledge of the criteria for excluding data.
In these cases the generic schedule may preclude States from submitting
timely flags and associated documentation for otherwise approvable
exceptional events. This could, if not modified, result in some areas
receiving a nonattainment designation when the NAAQS violations were
legitimately due to exceptional events.
For example, EPA finalized new standards for ozone of 0.075 parts
per million (ppm) on March 12, 2008 with an effective date of May 27,
2008. In accordance with Clean Air Act (CAA) Section 107(b), State
Governors must provide their recommendations to EPA by March 12, 2009
on designating areas as attainment, nonattainment, or unclassifiable
with the new standards. States are to base their recommendations on the
three most recent years of complete, certified air quality data, which
we expect would be ozone data collected for calendar years 2006-2008 or
2005-2007. EPA must complete final area designations for these new
standards by March 12, 2010. EPA will base its designations decisions
on the three most recent years of complete certified air quality data
available for each area. This could be ozone data collected during
calendar years 2007-2009 where States have submitted complete,
certified ozone data for 2009 more quickly than is required. However,
in some cases the most recent complete, certified data may cover 2006-
2008 or 2005-2007. For these data years, the generic exceptional event
flagging deadline for 2005 and 2006 data has already passed and the
flagging deadline for exceptional events that occurred in 2007 would be
July 1, 2008--approximately 33 days after the effective date of the
revised NAAQS. In addition, the generic schedule would require States
to submit demonstrations for 2009 data influenced by exceptional events
no later than March 12, 2009, one year before the final designation
decisions. This is clearly not possible for air quality data collected
from March 13, 2009 to December 31, 2009.
EPA is, therefore, using the authority provided in CAA section
319(b)(2) and in the Exceptional Events Rule at 40 CFR 50.14(c)(2)(vi),
to modify the schedule for data flagging and submission of
demonstrations for exceptional events data considered for initial
designations under the 2008 revised ozone NAAQS.
IV. Public Comment and Agency Response
On November 20, 2008, the Natural Resources Defense Council (NRDC)
provided comments to EPA on a Direct Final Action and the concurrent
proposal for this rule. The direct final rule was subsequently
withdrawn. A summary of NRDC's comments and the Agency's responses to
its comments are shown below.
Comment: NRDC asserts that the Exceptional Events Rule (EER) does
not authorize EPA to change the schedule for submission of
demonstrations and that EPA lacks statutory authority to revise the
flagging and documentation deadlines in the Exceptional Events Rule.
[Comment Letter from NRDC to EPA Docket ID No. EPA-HQ-OAR-2005-0159;
Public Comment on EPA Direct Final Rule and Proposed Rule, dated
November 20, 2008, at p. 2, para 2.] NRDC notes that although the EER
includes provisions for revising the schedule for flagging data, it
does not include a similar provision for the submission of
demonstrations. Therefore, the commenter concludes that EPA's actions
to revise the schedules for flagging and submitting documentation for
exceptional events are unlawful. The commenter also cites to certain
principles enumerated in the rule that use the word `timely' as a
reason for not revising the schedules for flagging and submission of
data. An additional argument that the commenter puts forward for not
changing the schedules is that the commenter notes that the EER
schedule provides EPA ample time to evaluate exceptional events data
before authorizing waiver of the data.
Response: EPA disagrees with the commenter. CAA section 319(b)(2)
expressly authorizes EPA to promulgate regulations ``governing the
review and handling of air quality monitoring data influenced by
exceptional events.'' Pursuant to this authority, EPA promulgated ``The
Treatment of Data Influenced by Exceptional Events (Exceptional Event
Rule)'' [72 FR 13562-13563 (March 22, 2007)] which sets out the process
and substance of EPA's review and handling of the data impacted by
exceptional events. For the review process in the EER, EPA included
schedules for flagging, public comment, and submission of documentation
related to exceptional events. 40 CFR 50.14(c). As the commenter notes,
EPA included a provision stating that it ``may revise or set a new
schedule for flagging data'' when a new or revised NAAQS was
promulgated. 40 CFR 50.14 (c)(2)(vi).\1\ From this, the commenter
concludes that just because EPA did not expressly include a similar
provision for the submission of documentation, it no longer has the
authority to revise its own rule. An agency may revise or amend its
rules or interpretations provided it follows the appropriate procedures
such as notice and comment rulemaking. EPA explained that the reason
for amending the schedules was to provide States with time to evaluate
their data under the new NAAQS and determine whether such data should
be flagged for consideration as an exceptional event. Under the older,
less stringent NAAQS, States may have determined that, for purposes of
efficiency and resource management, even where exceptional events had
occurred, the State would not flag that data because it would not have
affected
[[Page 23309]]
their designation status under the older NAAQS. If however, under the
revised NAAQS, certain exceptional events that were not flagged or for
which documentation was not submitted, would be relevant to designation
under the new NAAQS, EPA believes that these should not be precluded
from consideration. In response to the commenter's references to the
principles in section 319 that EPA must promulgate regulations that
provide `timely' information to the public when air quality is
unhealthy and provide for all ambient air quality data to be included
in a timely manner in the air quality database, EPA notes that all the
past data are already in the database and States must continue to
submit all their data on a timely basis to the database. During the
review of the data for purposes of designations, EPA is permitting
States a limited time to flag the data and to submit documentation. As
noted elsewhere, the public will receive timely information about such
flagging and documentation when States provide the public an
opportunity to comment before they submit the documentation to EPA. In
addition, 40 CFR 51.930 contains provisions for notifying the public
when the air is unhealthy. While EPA appreciates the commenter's
concern that the Agency should have ample time to evaluate the
exceptional events claim, EPA believes that the revised schedule is a
realistic and practical one that balances the Agency's needs with the
needs of the States.
---------------------------------------------------------------------------
\1\ The original rule provision was numbered as (c)(2)(v) and is
now renumbered to (c)(2)(vi) since the publication of the new Pb
NAAQS in October 2008.
---------------------------------------------------------------------------
Comment: The commenter states that the ``updated ozone NAAQS and
Exceptional Rule'' should not be applied retroactively. According to
the commenter, EPA's revision to the schedule suggests that EPA intends
to permit retroactive application of the ``new ozone NAAQS and new
Exceptional Event Rule'' to ``old monitoring data and to re-brand
previous data as NAAQS violations that are excludable from attainment
designations * * *'' NRDC Letter at p. 5. The commenter claims that the
amendment to the schedule is unlawful for four reasons. First,
according to the commenter because section 319 includes a provision
that explicitly keeps in place then-existing guidance until the
effective date of the rule (May 21, 2007), the policies would apply to
any data generated before that date. The commenter's second point
repeats the first proposition that the regulatory text and EPA's
construal of that text cannot be applied to events before May 21, 2007.
The commenter's third point is that because EPA's pre-existing
exceptional events policies applied to data before May 21, 2007,
amending the EER is not a proper or lawful vehicle for revising the
deadlines submitted pursuant to previous guidance. And finally, the
commenter contends that data indicating concentrations above the
updated ozone NAAQS, but not of the then-existing standard, cannot
constitute an exceptional event. The commenter cites to the EER which
permits States to request EPA to exclude data showing ``exceedances or
violations'' of the NAAQS and citing to the definition of an
``exceedance'' at 40 CFR 50.1 to support their argument that an
exceedance for data before May 27, 2008 (the effective date of the
revised ozone NAAQS) means concentrations that exceed the concentration
levels of the previous standard. The commenter argues that an air
monitoring concentration that exceeds the new standard but did not
exceed the then-applicable standard cannot constitute an ``exceedance''
under the EER for designations under the revised NAAQS. The commenter
also contends that although EPA provided some explanation for its
actions, it did not amount to a sufficient explanation for its actions.
In various footnotes, the commenter notes the differences between the
general schedule in the EER and the revised flagging and submission of
documentation schedules for ozone, noting that the flagging and
submissions would be ``barred'' under the EER. The commenter also
enumerates certain policy reasons for not revising the schedule such as
it would provide local air control authorities an opportunity to ``cook
the books'' and adopt a ``revisionist'' approach that led to
``creat[ing]'' exceptional events.
Response: EPA is not applying either the revised ozone NAAQS or the
Exceptional Events Rule retroactively to ``old air monitoring data'' as
the commenter contends. The commenter's statements regarding the
revised NAAQS and the applicability of the old NAAQS mischaracterizes
the process of designating areas as attainment or nonattainment. EPA
promulgated the revised ozone NAAQS on March 12, 2008 and under CAA
section 107 States must submit their initial recommendations for
designating areas by March 12, 2009. EPA will issue final designations
by March 12, 2010 unless it has insufficient information to issue such
designations. In such cases, EPA must make its final designations by
March 2011. State recommendations are based on whether the 3-year
average of the annual fourth-highest daily maximum 8-hour average O3
concentration is less than or equal to 0.075 ppm. The 3-year average is
computed by using the three most recent consecutive calendar years of
monitoring data that meet the monitoring completeness and other
requirements of 40 CFR Part 50, Appendix P. Therefore, when States
submit their recommended designations to EPA in March 2009 for the
revised ozone NAAQS based on the three most recent consecutive calendar
years of complete, certified monitoring date they will generally be
using data from the 2005-2007 or 2006-2008 periods. When EPA issues
final designations in March 2010, States could possibly have complete,
certified data for 2009 so that EPA may base its determination on 2007-
2009 data years. Thus, EPA is not looking at ``old monitoring data''
with a view to ``re-branding'' NAAQS violations as meeting the
standard; instead, EPA is evaluating the three most recent years of
complete, certified data that exist at the time of the designations,
which are the relevant data years as required by 40 CFR Part 50, App.
P.
Section 319's interim provision kept in place certain specific pre-
existing guidance and rules regarding exceptional events through the
rulemaking period but only until the effective date of the EER. The EER
became effective on May 21, 2007 and is applicable to regulatory
decisions made after that date including decisions regarding
exceptional events for the relevant data years that form the basis for
such decisions. The designation of an area as attainment or non-
attainment is based on the revised ozone NAAQS (not the older NAAQS)
which was promulgated on March 12, 2008--a year after the promulgation
of the EER. The commenter's argument that the EER is not applicable to
regulatory decisions under the revised March 2008 ozone NAAQS because
it would be a retroactive application of the rule is thus without any
basis.
The commenter's claim that for a measured concentration to qualify
as an exceedance under the revised ozone NAAQS, it must have been at a
concentration level greater than the older NAAQS which is not
applicable or relevant to the present designation is clearly erroneous.
The current designation determinations are based on the levels
established by the revised ozone NAAQS, an ``exceedance'' in this
instance is therefore clearly a concentration that exceeds the revised
NAAQS. See 40 CFR 50.1 (``Exceedance with respect to a [NAAQS] means
one occurrence of a measured or modeled concentration that exceeds the
specified
[[Page 23310]]
concentration level of such standard for the averaging period specified
by the standard''). Thus, the commenter's policy rationales (such as
encouraging local authorities to cook the books) for not amending the
schedules are also not persuasive because as explained above, EPA is
permitting States to evaluate data under an amended schedule for the
purposes of designations under the revised ozone NAAQS.
EPA believes it provided sufficient and appropriate explanation for
its action including the explanations that the commenter quotes
regarding how a State might not have known the criteria for excluding
the data until the level and form of the NAAQS were promulgated. See
NRDC Letter at pp.3-4. As for the comments regarding how certain
submissions would not be timely under the EER, EPA notes that those
reasons further support revising the schedule.
Comment: The commenter states that the revised schedule would
unlawfully limit public participation for two reasons. First, the
petitioner claims that flagging and submission of detailed
documentation cannot have the same deadline because that would not
allow for 30-day comment period by States before they submit their
documentation. Second, if an event were to occur on December 31, 2009,
a 30-day comment period would push the deadline to no earlier than
January 31, 2010.
Response: In response to the commenter's second point EPA has
modified the proposed deadline for 2009 and is now requiring that for
exceptional events claims for 2009 data to be considered, States must
submit their completed documentation within 60 days of the end of a
calendar quarter in which the exceptional event occurred or by February
5, 2010 whichever is earlier. This would provide sufficient time for a
public comment period and provide EPA sufficient time to review data
prior to making designations. As for commenter's first point, EPA
anticipates that States generally will flag data before they submit
documentation on an exceptional event. However, if a State has put its
exceptional events documentation together, notified the public of its
intent to flag the data and seek exclusion of the data and provided an
opportunity for the public to comment on the demonstration, EPA
believes it is not necessary in such instances to preclude
consideration of such submissions because the data has not been flagged
in the air quality database until the deadline. The more significant
issue is whether the State has put together an adequate demonstration
and provided an opportunity for public comment and included those
comments in the submission to EPA. EPA concludes that the schedule as
revised will provide adequate time for all of these steps.
Comment: The commenter notes that the EER has been challenged and
that the United States Court of Appeals for the DC Circuit heard oral
argument in NRDC v. EPA, Nos. 07-1151 & 08-1057 (consolidated) on
October 10, 2008 and an opinion is still pending. The commenter states
that given that there is a possibility that certain portions of the
rule may be vacated and/or remanded to the Agency, the agency must
delay finalizing its proposed amendment to the rule until after the DC
Circuit announces its decision.
Response: The challenges to the rule cited by the commenter did not
raise any issues relating to deadlines for flagging or submissions of
documentation relating to exceptional events. The commenter has not
brought to EPA's attention any support for its assertion that EPA
``must'' delay modifying the EER in the manner proposed by the
commenter, and EPA is unaware of any such restriction. Therefore, EPA
believes that its limited revision of the rule specifically only to
address the deadlines related to flagging and submission of
documentation is not at odds with and should not interfere with the
Court's review of the challenge to the rule on other grounds.
V. What Are the Amendments Included in the Final Rule?
This final rule amends the Exceptional Events Rule by providing a
revised exceptional event data flagging and documentation schedule
regarding claimed exceptional events affecting ozone monitoring data
that will be compared to the 2008 revised ozone NAAQS for the purpose
of initial ozone designations. In some cases, EPA is extending the
otherwise applicable deadline for States to flag data and submit
documentation. In other cases, EPA is shortening the otherwise
applicable schedule to assure that the exceptional events claims can be
fully considered by EPA in the designations decisions.
For air quality data collected in the years 2005 through 2007, this
revised schedule extends the generic schedule for flagging data (and
providing a brief initial description of the event) from July 1 of the
year following the year the data are collected, to June 18, 2009. For
data collected in 2008, the revised schedule accelerates the generic
schedule for flagging data and providing a brief initial description of
the event to June 18, 2009. The deadline for submitting to EPA a
detailed demonstration to justify exclusion of data collected in 2005
through 2008 is also being set to June 18, 2009. The deadline for
submitting to EPA flagged data with initial descriptions and a detailed
demonstration to justify exclusion of data collected in 2009 is being
set to 60 days after the end of the calendar quarter in which the
exceptional event occurred or February 5, 2010, whichever date occurs
first. For data collected in 2008 and 2009 this would give a State less
time, but EPA believes still sufficient time, to decide what 2008 and
2009 data to flag and to submit documentation relating to exceptional
events, and would allow EPA to have access to the flags and supporting
data in time for EPA to evaluate the States recommendation and issue
final designations. While the new deadlines for submission of a State's
demonstration for data collected in 2009 is less than a year before the
designation decisions would be made, EPA believes it is a reasonable
approach between giving States a reasonable period to prepare the
justifications, and EPA a reasonable period to consider the information
submitted by the State. With this final rule EPA amends Sec. 50.14
(c)(2)(vi) to add a tabular schedule of data submittal deadlines, by
pollutant, for new or revised NAAQS standards. (PM2.5 data
submittal schedules revised in March 2007 and presented in this table
are for informational purposes only. EPA is not taking further comment
on the PM2.5 data submittal schedule published in 72 FR
13560, March 22, 2007.) EPA anticipates providing amendments to the
following table to add flagging and data submission schedules for new
or revised NAAQS standards in the future.
[[Page 23311]]
Table 1--Schedule for Exceptional Event Flagging and Documentation Submission for Data To Be Used in
Designations Decisions for New or Revised NAAQS
----------------------------------------------------------------------------------------------------------------
Air quality data Event flagging &
NAAQS pollutant/ standard/(level)/ collected for calendar initial description Detailed documentation
promulgation date year deadline submission deadline
----------------------------------------------------------------------------------------------------------------
PM2.5 24-Hr Standard (35 [micro]g/ 2004-2006.............. October 1, 2007 \a\.... April 15, 2008.\a\
m\3\) Promulgated October 17, 2006.
Ozone/8-Hr Standard (0.075 ppm) 2005-2007.............. June 18, 2009 \b\...... June 18, 2009.\b\
Promulgated March 12, 2008.
2008................... June 18, 2009 \b\...... June 18, 2009.\b\
2009................... 60 Days after the end 60 Days after the end
of the calendar of the calendar
quarter in which the quarter in which the
event occurred or event occurred or
February 5, 2010, February 5, 2010,
whichever date occurs whichever date occurs
first\b\. first.\b\
----------------------------------------------------------------------------------------------------------------
\a\ These dates are unchanged from those published in the original rulemaking, and are shown in this table for
informational purposes.
\b\ Indicates change from general schedule in 40 CFR 50.14.
Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final
initial designations for new or revised NAAQS. The general schedule applies for all other purposes, most
notably, for data used by EPA for redesignations to attainment.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
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.
Burden is defined at 5 CFR 1320.3(b). This rule modifies previously
established deadlines under the Exceptional Events Rule and does not
impose any new obligations or enforceable duties on any State, local or
Tribal governments or the private sector. Therefore, it does not impose
an information collection burden.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small 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 this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This rule
modifies previously established deadlines under the Exceptional Events
Rule and does not impose any new obligations or enforceable duties on
any State, local or Tribal governments or the private sector. Thus, it
does not impose any requirements on small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or Tribal governments or the private
sector. This action imposes no enforceable duty on any State local or
Tribal governments or the private sector. This action modifies
previously established deadlines under the Exceptional Events Rule and
does not impose any new obligations or enforceable duties on any State,
local or Tribal governments or the private sector. Therefore, this
action is not subject to the requirements of sections 202 and 205 of
the UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule modifies
previously established deadlines under the Exceptional Events Rule and
does not impose any new obligations or enforceable duties on any small
governments.
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 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 final 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 rule modifies previously
established deadlines under the Exceptional Events Rule and does not
impose any new obligations or enforceable duties on any State, local or
Tribal governments or the private sector. Thus, Executive Order 13132
does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule
modifies previously established deadlines under the Exceptional Events
Rule and does not impose any new obligations or
[[Page 23312]]
enforceable duties on Tribal governments. Thus, Executive Order 13175
does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because the Agency does not believe the environmental health
risks or safety risks addressed by this action present a
disproportionate risk to children. This action is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to the Executive Order 13211 (66 FR
28355 (May 22, 2001)), because it is not a significant regulatory
action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it will not
affect the level of protection provided to human health or the
environment. This rule modifies previously established deadlines under
the Exceptional Events Rule and does not impose any new obligations or
enforceable duties on any State, local or Tribal governments or the
private sector. It will neither increase nor decrease environmental
protection.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective June 18, 2009.
L. Judicial Review
Under CAA section 307(b), judicial review of this final action is
available only by filing a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit on or before July 20,
2009. Under CAA section 307(d)(7)(B), only those objections to the
final rule that were raised with specificity during the period for
public comment may be raised during judicial review. Moreover, under
CAA section 307(b)(2), the requirements established by this final rule
may not be challenged separately in any civil or criminal proceedings
brought by EPA to enforce these requirements.
List of Subjects in 40 CFR Part 50
Environmental protection, Air pollution control, Carbon monoxide,
Lead, Nitrogen dioxide, Ozone Particulate Matter, Sulfur oxides.
Dated: May 13, 2009.
Lisa P. Jackson,
Administrator.
For the reasons set forth in the preamble, part 50 of chapter I of
title 40 of the Code of Federal Regulations is amended as follows:
PART 50--[AMENDED]
0
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--General Provisions
0
2. Section 50.14 is amended by revising paragraph (c)(2)(vi) to read as
follows:
Sec. 50.14 Treatment of air quality monitoring data influenced by
exceptional events.
* * * * *
(c) * * *
(2) * * *
(vi) When EPA sets a NAAQS for a new pollutant or revises the NAAQS
for an existing pollutant, it may revise or set a new schedule for
flagging exceptional event data, providing initial data descriptions
and providing detailed data documentation in AQS for the initial
designations of areas for those NAAQS: Table 1 provides the schedule
for submission of flags with initial descriptions in AQS and detailed
documentation and the schedule shall apply for those data which will or
may influence the initial designation of areas for those NAAQS. EPA
anticipates revising Table 1 as necessary to accommodate revised data
submission schedules for new or revised NAAQS.
Table 1--Schedule for Exceptional Event Flagging and Documentation Submission for Data To Be Used in
Designations Decisions for New or Revised NAAQS
----------------------------------------------------------------------------------------------------------------
Air quality data Event flagging &
NAAQS pollutant/ standard/(level)/ collected for calendar initial description Detailed documentation
promulgation date year deadline submission deadline
----------------------------------------------------------------------------------------------------------------
PM2.5/24-Hr Standard (35 [mu]g/m\3\) 2004-2006.............. October 1, 2007\a\..... April 15, 2008.\a\
Promulgated October 17, 2006.
[[Page 23313]]
Ozone/8-Hr Standard (0.075 ppm) 2005-2007.............. June 18, 2009\b\....... June 18, 2009.\b\
Promulgated March 12, 2008.
2008................... June 18, 2009\b\....... June 18, 2009.\b\
2009................... 60 Days after the end 60 Days after the end
of the calendar of the calendar
quarter in which the quarter in which the
event occurred or event occurred or
February 5, 2010, February 5, 2010,
whichever date occurs whichever date occurs
first.\b\. first.\b\
----------------------------------------------------------------------------------------------------------------
\a\ These dates are unchanged from those published in the original rulemaking, and are shown in this table for
informational purposes.
\b\ Indicates change from general schedule in 40 CFR 50.14.
Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final
initial designations for new or revised NAAQS. The general schedule applies for all other purposes, most
notably, for data used by EPA for redesignations to attainment.
* * * * *
[FR Doc. E9-11642 Filed 5-18-09; 8:45 am]
BILLING CODE 6560-50-P
