Proposed Rule To Implement the 1997 8-Hour Ozone National Ambient Air Quality Standard: New Source Review Anti-Backsliding Provisions for Former 1-Hour Ozone Standard, 51960-51968 [2010-20992]
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Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules
wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
to be ‘‘substance abuse professionals’’
and to perform counseling services with
its employees, and the Federal Health
Resources Services Administration has
included MFTs on its list of five core
mental health disciplines.
(5) The petitioner states that the
licensing and regulation of MFTs is
done by all fifty states. The petitioner
states that although licensing is
conducted by individual states, the vast
majority of states require candidates to
pass the national MFT examination,
which is administered by the
Association of Marital and Family
Therapy Regulatory Boards (AMFTRB).
The National MFT examination tests
prospective MFTs on their knowledge of
substance abuse issues and treatment.
The petitioner states that in terms of
substance abuse issues, the AMFTRB
tests prospective MFTs on their
knowledge of how substance abuse and
dependency affect the individual and
the functioning of his or her family; the
effects of addictive behavior on the
individual and the family system; and
addiction treatment modalities.
The petitioner provided the following
documents as attachments to its petition
for rulemaking. These documents are
not included in this publication. (See
the ADDRESSES section of this document
for instructions on accessing a copy of
the petition for rulemaking.)
• California Business & Professions
Code § 498.36, § 1887.3, § 29, § 2914,
§ 1382.3, and § 4996.2;
• Yale School of Medicine Bulletin;
• NAADAC Guide to Certification;
and
• Employee Assistance Professionals
Association, ‘‘How to Become a CEAP’’.
In summary, the petitioner believes
that MFTs should be included in the list
of credentialed professionals presented
in 10 CFR 26.187(b). The petitioner
states that it realizes the importance of
the role SAEs play in safeguarding the
United States and its citizens, and
believes that the members of CAMFT
who are qualified to be SAEs would be
a credit to the NRC.
Dated at Rockville, Maryland, this 18th day
of August 2010.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2010–21022 Filed 8–23–10; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 51
[EPA–HQ–OAR–2008–0462, FRL–9192–7]
RIN 2060–AP30
Proposed Rule To Implement the 1997
8-Hour Ozone National Ambient Air
Quality Standard: New Source Review
Anti-Backsliding Provisions for Former
1-Hour Ozone Standard
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
This proposed action would
clarify the obligation to retain 1-hour
nonattainment new source review (NSR)
program requirements for certain areas
designated nonattainment for the 1997
8-hour ozone national ambient air
quality standard (NAAQS). The EPA
proposes to revise the rule for
implementing the 1997 8-hour ozone
NAAQS to address how NSR
requirements that applied by virtue of
the area’s 1-hour ozone NAAQS
classification should apply under the
anti-backsliding provisions of the 1997
8-hour implementation rule. This
proposed rule responds to the ruling by
the U.S. Court of Appeals for the District
of Columbia Circuit that the 1-hour
major NSR program, as it applies to
areas that were designated 1-hour
nonattainment on the date of
designation for the 1997 8-hour
NAAQS, is a required control to prevent
backsliding. EPA has separately
proposed to remove the vacated
provisions of the rule that allowed
States to remove (or not include, if not
yet adopted) 1-hour major NSR for
nonattainment areas from their State
implementation plans (SIPs).
DATES: Comments. Comments must be
received on or before September 23,
2010.
Public Hearing. If anyone contacts us
requesting a public hearing by
September 3, 2010, we will hold a
public hearing approximately 30 days
after publication of this proposal in the
Federal Register. Additional
information about the hearing would be
published in a subsequent Federal
Register notice.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2008–0462, by one of the
following methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• E-mail: a-and-r-docket@epa.gov.
• Fax: (202) 566–9744.
SUMMARY:
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• Mail: Air and Radiation Docket and
Information Center, Attention Docket ID
No. EPA–HQ–OAR–2008–0462,
Environmental Protection Agency, 1301
Constitution Ave., NW., Washington,
DC 20460. Mail Code: 2822T. Please
include two copies if possible.
• Hand Delivery: Air and Radiation
Docket and Information Center,
Attention Docket ID No. EPA–HQ–
OAR–2008–0462, Environmental
Protection Agency in the EPA
Headquarters Library, Room Number
3334 in the EPA West Building, located
at 1301 Constitution Ave., NW.,
Washington, DC. The EPA/DC Public
Reading Room hours of operation will
be 8:30 a.m. to 4:30 p.m. Eastern
Standard Time (EST), Monday through
Friday, Air and Radiation Docket and
Information Center.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OAR–2008–
0462. The EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available on-line at
https://www.regulations.gov, including
any personal information provided,
unless the comment includes
information claimed to be confidential
business information (CBI) or other
information whose disclosure is
restricted by statute. Do not submit
information that you consider to be CBI
or otherwise protected through https://
www.regulations.gov, or e-mail. The
https://www.regulations.gov Web Site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket, visit the EPA
Docket Center homepage at https://www.
epa.gov/epahome/dockets.htm. For
additional instructions on submitting
comments, go to the SUPPLEMENTARY
INFORMATION section of this document.
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Docket: All documents in the docket
are listed in https://www.regulations.gov.
Although listed in the index, some
information is not publicly available,
i.e., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically in https://
www.regulations.gov or in hard copy at
the Air and Radiation Docket and
Information Center, EPA Headquarters
Library, Room Number 3334 in the EPA
West Building, located at 1301
Constitution Ave., NW., Washington,
DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744.
Public Hearing: If a hearing is held, it
will be held at the U.S. Environmental
Protection Agency, 1200 Pennsylvania
Avenue, Washington, DC 20004.
FOR FURTHER INFORMATION CONTACT: For
information on 1-hour major NSR,
contact: Mr. David Painter, Office of Air
Quality Planning and Standards, U.S.
Environmental Protection Agency
(C504–03), Research Triangle Park, NC
27711, telephone number (919) 541–
5515, fax number (919) 541–5509 or by
e-mail at painter.david@epa.gov.
To request a public hearing, contact
Mrs. Pamela Long, Office of Air Quality
Planning and Standards (C504–03), U.S.
Environmental Protection Agency,
Research Triangle Park, North Carolina
27711, telephone number (919) 541–
0641 or by e-mail at long.pam@epa.gov,
fax number (919) 541–5509.
SUPPLEMENTARY INFORMATION:
I. General Information
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A. Does this action apply to me?
Entities potentially affected directly
by this action include certain State and
Tribal governments that manage air
quality for areas designated
nonattainment for the 1997 ozone
NAAQS. See Table 1 in this notice for
a list of potentially affected areas.
B. What should I consider as I prepare
my comments for EPA?
1. Submitting CBI. Do not submit this
information to EPA through https://
www.regulations.gov or e-mail. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
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is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed to be
CBI must be submitted for inclusion in
the public docket. Information so
marked will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for Preparing Your Comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
• Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
• Describe any assumptions and
provide any technical information and/
or data that you used.
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
• Make sure to submit your
comments by the comment period
deadline identified.
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I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my
comments for EPA?
C. Where can I get a copy of this document
and other related information?
D. How can I find information about a
possible public hearing?
E. How is this notice organized?
II. Background for This Proposal
A. Anti-Backsliding Provisions
B. Reconsideration of Certain Provisions of
the Phase 1 Rule
C. South Coast Decision
III. This Action
A. Applicability of 1-Hour NSR
Requirements
B. Removal of 1-Hour NSR Requirements
C. Section 110(l)
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132—Federalism
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology and Transfer
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
II. Background for This Proposal
D. How can I find information about a
possible public hearing?
To request a public hearing or
information pertaining to a public
hearing on this document, contact Mrs.
Pamela Long at (919) 541–0641 before 5
p.m. on September 3, 2010. Persons
interested in presenting oral testimony
should contact Mrs. Pamela Long at
(919) 541–0641. Any person who plans
to attend the hearing should also contact
Mrs. Pamela Long at (919) 541–0641 or
visit the EPA’s Web Sites at https://
www.epa.gov/nsr to learn if a hearing
will be held.
A. Anti-Backsliding Provisions
The EPA codified the anti-backsliding
provisions governing the transition from
the revoked 1-hour ozone NAAQS to the
1997 8-hour ozone NAAQS in 40 CFR
51.905(a) (part of the ‘‘Phase 1 Rule’’).
These provisions, as promulgated,
retained 13 requirements specified
under section 182 of the Clean Air Act
(CAA or Act), as those requirements
applied for the 1-hour ozone standard.1
These 13 requirements were identified
as ‘‘applicable requirements’’ in the
regulation. 40 CFR 51.900(f). The
applicable requirements include: (1)
Reasonably available control technology
(RACT) for major stationary sources; (2)
vehicle inspection and maintenance
(I/M) programs; (3) major source
applicability thresholds for purposes of
RACT; (4) rate of progress reductions;
(5) stage II gasoline vehicle refueling
vapor recovery; (6) clean fuels fleet
program under section 183(c)(4) of the
CAA; (7) clean fuels for boilers under
E. How is this notice organized?
The information presented in this
notice is organized as follows:
1 See Final Rule to Implement the 8-Hour Ozone
National Ambient Air Quality Standard-Phase 1 (69
FR 23951, April 30, 2004).
C. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, an electronic copy of this notice
is also available on the World Wide
Web. A copy of this notice will be
posted at https://www.epa.gov/nsr.
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section 182(e)(3) of the CAA; (8)
transportation control measures; (9)
enhanced (ambient) monitoring; (10)
transportation controls under section
182(c)(5); (11) vehicle miles traveled
provisions; (12) NOX requirements
under section 182(f) of the CAA; and
(13) attainment demonstrations. Under
the Phase 1 Rule, these requirements
continue to apply to an area after
revocation of the 1-hour NAAQS if the
requirements were applied in the area
based on the area’s 1-hour ozone
designation and classification as of the
effective date of its 1997 8-hour
designation (for most areas the effective
date of the 1997 8-hour designation was
June 15, 2004). 40 CFR 51.900(h).
The rule further provides that an area
remains subject to these applicable
requirements until the area attains the
1997 8-hour NAAQS. 40 CFR 51.905(b).
Additionally, such obligations cannot be
removed from a SIP, even if we
redesignate the area to attainment for
the 8-hour NAAQS. However, upon
redesignation to attainment of the 8hour ozone standard, a State could
request that such requirements be
moved to the contingency measures
portion of the SIP (40 CFR 51.905(b)).
In the Phase 1 Rule and in two
subsequent reconsideration rules (which
are described below), EPA explicitly
excluded 1-hour major NSR from the list
of retained applicable requirements
(§ 51.905(e)).2 The Phase 1 Rule
provided at § 51.905(e)(4)(i) that when
we revoked the 1-hour standard, the
State would no longer be required to
retain the major NSR provisions
associated with the 1-hour NAAQS in
its SIP for areas that were designated
nonattainment for the 1-hour ozone
standard. Instead, the State could revise
its SIP to replace the 1-hour NSR
requirements with those specific to its
new 8-hour ozone designation and
classification status. In many cases, this
would allow an area to adopt higher
major NSR source applicability
thresholds and lower offset ratios
associated with the area’s lower 8-hour
classification. This would have the
effect of reducing the number of sources
subject to major NSR source
requirements, including more stringent
emission limitations and offsets.
The Phase 1 Rule also contained a
provision directed specifically at areas
that were designated 8-hour attainment
and 1-hour nonattainment. That
provision addressed the applicable
requirements listed in § 51.900(f) as well
2 Note that if the area is nonattainment for the
1997 8-hour standard, the CAA requires that
nonattainment NSR would apply to the area based
on its classification for the 1997 8-hour standard.
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as 1-hour NSR requirements. With
respect to the 1-hour NSR requirement,
§ 51.905(a)(3) stated: ‘‘For such areas,
the state may request that the
nonattainment NSR provisions be
removed from the SIP on or after the
date of revocation of the 1-hour NAAQS
and need not be shifted to contingency
measures subject to paragraph (e)(4) of
this section.’’
B. Reconsideration of Certain Provisions
of the Phase 1 Rule
Following publication of the Phase 1
Rule, the Administrator received three
petitions pursuant to section
307(b)(7)(B) of the CAA requesting
reconsideration of several aspects of the
final rule.3 EPA addressed certain issues
raised in these petitions in two
rulemakings. In the first reconsideration
rulemaking, EPA further clarified the
implementation rule in two respects: (a)
CAA section 185 penalty fees under the
1-hour standard would no longer be
applicable after revocation of the 1-hour
standard, and (b) the effective date of
designations under the 1997 8-hour
standard (i.e., for almost all areas, June
15, 2004) is the date for determining
which 1-hour control measures continue
to apply in an area once the 1-hour
standard is revoked.4 Additionally, EPA
clarified that the requirement to retain
1-hour contingency measures for failure
to make progress or failure to attain
would no longer apply once we revoked
the 1-hour standard.
In the second reconsideration
rulemaking, we proposed and took
comment on the issue of whether we
should interpret the Act to require 8hour ozone nonattainment areas to
retain major NSR requirements that
applied on the basis of the areas’ 1-hour
ozone nonattainment classification (70
FR 17018, April 4, 2005). We took final
action on this NSR issue on June 30,
2005 (70 FR 39413, July 8, 2005),
determining not to require States to
retain major NSR under the 1-hour
standard once it was revoked.
C. South Coast Decision
In South Coast Air Quality
Management District, et al., v. EPA, 472
F.3d 882 (DC Cir. 2006) (South Coast),
3 Petitions for reconsideration of the Phase 1 Rule
were filed by: (1) Earthjustice on behalf of the
American Lung Association, Environmental
Defense Fund, Natural Resources Defense Council,
Sierra Club, Clean Air Task Force, Conservation
Law Foundation, and Southern Alliance for Clean
Energy; (2) the National Petrochemical and Refiners
Association and the National Association of
Manufacturers; and (3) the American Petroleum
Institute, American Chemistry Council, American
Iron and Steel Institute, National Association of
Manufacturers and the U.S. Chamber of Commerce.
4 70 FR 30592 (May 26, 2005).
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the Court vacated EPA’s waiver of 1hour major nonattainment NSR
requirements as they apply to the 1-hour
standard and stated that removing them
from a SIP ‘‘would constitute
impermissible backsliding.’’ The
decision was based on challenges by
several parties to EPA’s Phase 1 Rule
and the two reconsideration rules. The
Court upheld certain challenges and
rejected others, but purported to vacate
the Phase 1 Rule in its entirety. South
Coast Air Quality Management District,
et al., v. EPA, 472 F.3d 882 (DC Cir.
2006). The EPA requested rehearing and
clarification of the ruling, and, on June
8, 2007, the Court clarified that it
vacated the rule only to the extent that
it had upheld the petitioners’
challenges. South Coast Air Quality
Management District, et al., v. EPA,
2007 U.S. App. LEXIS 13303 (DC Cir.
2007). Thus, the Court vacated the
provisions that waived obligations as
they applied under the revoked 1-hour
standard for major nonattainment NSR,
CAA section 185 penalty fees, and
contingency measures for failure to
attain or to make reasonable progress
toward attainment.
We have separately proposed to
remove these provisions from the
regulations at 40 CFR part 51 in order
to ensure that the published regulatory
text is consistent with the Court’s
vacatur. 74 FR 2936 (January 16, 2009).
With regard to NSR, the South Coast
decision means that the 1-hour major
NSR thresholds and offsets remain
applicable to those areas that had not
been redesignated to 1-hour attainment
by the date of designation for the 8-hour
ozone NAAQS (except where the area
has since been redesignated to
attainment for the 8-hour standard). As
previously stated in the October 3, 2007,
memo from Robert J. Meyers to the
Regional Administrators, States are to
comply with the South Coast decision
as quickly as possible. States should
take appropriate steps to implement the
1-hour major NSR requirements in
accordance with the South Coast
decision without waiting for completion
of this rulemaking.
III. This Action
This action proposes regulatory
language to clarify the obligation to
retain 1-hour major nonattainment NSR
requirements and proposes when States
can request that these requirements be
removed from their SIPs.
This proposal focuses on the
nonattainment NSR aspects of the South
Coast decision that can be clarified
through additions of new rule language.
In a separate action, we have proposed
to remove the vacated regulatory
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provisions in § 51.905(e)(4) which
waived the requirement to retain 1-hour
requirements for nonattainment NSR in
SIPs.5 Also, EPA is proposing to amend
§ 51.905(a)(3), which details how areas
transition from 1-hour NAAQS to 8hour NAAQS, and to remove the phrase
‘‘subject to paragraph (e)(4) of this
section’’ because paragraph (e)(4) was
vacated.
A. Applicability of 1-Hour NSR
Requirements
In South Coast, the Court concluded
that the 1-hour major NSR requirements
are controls, and that withdrawing them
from the 8-hour nonattainment NSR SIP
‘‘would constitute impermissible
backsliding.’’ 472 F.3d. 882, 900. The
Court vacated the provision of the Phase
1 Rule that allowed States, regardless of
the 8-hour designation for an area, to
request that the SIP be revised to
remove 1-hour major NSR requirements
upon revocation of the 1-hour
standard.6 As noted above, we have
previously proposed to remove that
vacated provision. 74 FR 2936 (January
16, 2009). In this action, we are
proposing to add new regulatory text to
make it clear that any 8-hour
nonattainment area designated as 1-hour
nonattainment as of the date of 1997 8hour NAAQS designation must continue
to apply NSR requirements consistent
with that area’s 1-hour classification.7
Such areas cannot remove 1-hour major
NSR requirements from their SIPs based
solely on revocation of the 1-hour
standard. The implications for areas that
are designated attainment for the 1997
8-hour standard, or have been
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redesignated to attainment for that
standard, and that were designated
nonattainment for the 1-hour standard
at the time of designation for the 1997
8-hour standard are discussed in section
III.B.1. of this preamble.
The areas for which anti-backsliding
requirements would have applied as of
June 15, 2004, are listed in Table 1. The
areas in Table 1 had a 1-hour NAAQS
nonattainment classification with more
stringent NSR program requirements
than the classification under the 1997 8hour standard on the date of designation
under the 8-hour standard, June 15,
2004. Some areas potentially affected
have been redesignated to attainment for
the 1997 ozone NAAQS since June 15,
2004, and would be treated as described
in section III.B.
TABLE 1—OZONE NONATTAINMENT AREAS POTENTIALLY AFFECTED BY THIS RULE
Part 81, 1997 8-hour NAA
Part 81, 1-Hour, NAA
State
Area
AZ ................
CA ...............
CA ...............
CA ...............
CA ...............
CA ...............
CA ...............
CT ...............
DC-MD-VA ..
GA ...............
IL-IN ............
LA ................
MA ...............
MA
MD
NH
NH
...............
...............
...............
...............
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NY ...............
NY ...............
NY ...............
NY-NJ-CT ....
PA ...............
PA ...............
PA ...............
PA ...............
PA ...............
PA ...............
RI ................
TX ................
TX ................
TX ................
WI ................
Classification
Area
Phoenix-Mesa, AZ ........................................
Los Angeles South Coast Air Basin, CA ......
Los Angeles-San Bernardino Cos (West
Mojave), CA.
Riverside (Coachella Valley), CA .................
Sacramento Metro, CA .................................
San Joaquin Valley, CA ................................
Ventura Co, CA ............................................
Greater Connecticut, CT ...............................
Washington DC-MD-VA ................................
Atlanta, GA ...................................................
Chicago-Gary-Lake County, IL-IN ................
Baton Rouge, LA ..........................................
Boston-Lawrence-Worcester (E. MA), MA ...
Subpart 1 ..........
Severe-17 .........
Moderate ..........
Phoenix, AZ ..................................................
Los Angeles South Coast Air Basin, CA ......
Southeast Desert Modified AQMA, CA ........
Serious.
Extreme.
Severe-17.
Serious .............
Serious .............
Serious .............
Moderate ..........
Moderate ..........
Moderate ..........
Marginal ............
Moderate ..........
Marginal ............
Moderate ..........
Southeast Desert Modified AQMA, CA ........
Sacramento Metro, CA .................................
San Joaquin Valley, CA ................................
Ventura Co, CA ............................................
Greater Connecticut, CT ...............................
Washington DC-MD-VA ................................
Atlanta, GA ...................................................
Chicago-Gary-Lake County, IL-IN ................
Baton Rouge, LA ..........................................
Boston-Lawrence-Worcester (E. Mass), MANH.
Springfield (Western MA), MA ......................
Baltimore, MD ...............................................
Boston-Lawrence-Worcester, NH .................
Portsmouth-Dover-Rochester, NH ................
Severe-17.
Severe-15.
Extreme.
Severe-15.
Serious.
Severe-15.
Severe-15.
Severe-17.
Severe-15.
Serious.
Springfield (Western MA), MA ......................
Baltimore, MD ...............................................
Boston-Manchester-Portsmouth (SE), NH ...
Boston-Manchester-Portsmouth (SE), NH
(Portsmouth-Dover-Rochester, NH part).
Albany-Schenectady-Troy, NY .....................
Buffalo-Niagara Falls, NY* ............................
Essex Co, NY* ..............................................
New York-N. New Jersey-Long Island, NYNJ-CT.
Allentown-Bethlehem-Easton, PA* ...............
Altoona, PA* .................................................
Erie, PA* .......................................................
Harrisburg-Lebanon-Carlisle, PA* ................
Johnstown, PA* ............................................
York, PA* ......................................................
Providence, RI (All counties in RI) ...............
Beaumont-Port Arthur, TX ............................
Dallas-Fort Worth, TX ...................................
Houston-Galveston-Brazoria, TX ..................
Milwaukee-Racine, WI ..................................
Moderate
Moderate
Moderate
Moderate
..........
..........
..........
..........
Subpart 1
Subpart 1
Subpart 1
Moderate
..........
..........
..........
..........
Subpart 1 ..........
Subpart 1 ..........
Subpart 1 ..........
Subpart 1 ..........
Subpart 1 ..........
Subpart 1 ..........
Moderate ..........
Marginal ............
Moderate ..........
Moderate ..........
Moderate ..........
Albany-Schenectady-Troy, NY .....................
Buffalo-Niagara Falls, NY. ............................
Essex Co, NY ...............................................
New York-N. New Jersey-Long Island, NYNJ-CT.
Allentown-Bethlehem-Easton, PA-NJ ...........
Altoona, PA ...................................................
Erie, PA .........................................................
Harrisburg-Lebanon-Carlisle, PA ..................
Johnstown, PA ..............................................
York, PA ........................................................
Providence, RI (All counties in RI) ...............
Beaumont-Port Arthur, TX ............................
Dallas-Fort Work, TX ....................................
Houston-Galveston-Brazoria, TX ..................
Milwaukee-Racine, WI ..................................
Classification
Serious.
Severe-15.
Serious.
Serious.
Marginal.
Marginal
Marginal.
Severe-17.
Marginal.
Marginal.
Marginal.
Marginal.
Marginal.
Marginal.
Serious.
Serious.
Serious.
Severe-17.
Severe-17.
* Indicates area has been redesignated to ‘‘attainment’’ as of July 2010 for the 1997 8-hour ozone standard. Areas that have been redesignated to attainment are no longer required to implement nonattainment NSR, but must at a minimum implement the PSD program.
5 In addition, that separate proposed rule
addresses two other aspects of the rule vacated by
the Court in South Coast: (1) How EPA will classify
areas that it had placed under subpart 1 in the
Phase 1 Rule, and (2) anti-backsliding requirements
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for contingency measures that apply for failure to
make progress toward or to attain the 1-hour
standard.
6 These same provisions also allowed States
which had not yet adopted such programs to not
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adopt and submit such SIPs. The Court also vacated
the regulation to the extent it waived the obligation
to submit such SIPs.
7 In most areas, the date of designation was June
15, 2004.
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B. Removal of 1-Hour NSR
Requirements
1. Treatment of 8-Hour Attainment
Areas
EPA does not interpret the South
Coast decision as requiring that 1-hour
nonattainment NSR be retained in areas
designated attainment for the 1997 8hour standard. Accordingly, in this
notice EPA is clarifying that it will
continue to follow the provisions of 40
CFR 51.905(a)(3) with regard to removal
of 1-hour NSR requirements in 1997 8hour ozone NAAQS attainment areas.
EPA is not proposing to change its
treatment of such areas. As explained
previously, 51.905(a)(3) allows 1997 8hour NAAQS attainment areas, that
were designated nonattainment for the
1-hour standard at the time of their
attainment designation for the 8-hour
standard, to request that the 1-hour
nonattainment NSR provisions be
removed from the SIP. (We note that
EPA’s practice since the revocation of
the 1-hour standard has also been to
allow 1997 8-hour ozone NAAQS
nonattainment areas, that were
designated nonattainment for the 1-hour
standard at the time of their 8-hour
nonattainment designation, to request
that the 1-hour nonattainment NSR
requirements be removed from their
SIPs upon redesignation of the area to
attainment of the 1997 8-hour NAAQS.)
In lieu of nonattainment NSR, these
areas, with the exception of those
located in the Ozone Transport Region
(OTR), are subject to prevention of
significant deterioration (PSD) program
requirements based on their 8-hour
attainment designation or redesignation.
For areas that are located in the OTR,
ozone nonattainment NSR requirements
associated with the moderate
nonattainment classification apply
regardless of an area’s designation.
In the South Coast litigation, the
petitioners’ briefs characterized the
Phase 1 Rule as removing ‘‘requirements
to control pollution from new and
modified stationary sources in
nonattainment areas.’’ Opening Brief of
Environmental Petitioners and South
Coast Air Quality Management District
at 17 (emphasis added); see also Brief
for the Commonwealth of Massachusetts
et al. at 14. Thus, the issue before the
Court was whether EPA had acted
unlawfully by ‘‘permitting 8-hour
nonattainment areas to only meet
weaker requirements under their 8-hour
classifications.’’ Opening Brief of
Environmental Petitioners and South
Coast Air Quality Management District
at 20. The Court distinguished the South
Coast decision from the decision in
Greenbaum v. EPA, 370 F.3d 527 (6th
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Cir. 2004) in part because ‘‘Greenbaum
involved a different ultimate question,
namely, whether NSR is required for
attainment areas.’’ 472 F.3d. at 902. As
the Court noted, ‘‘NSR is a permitting
process that restricts major
modifications and new construction
based on an area’s air-quality
classification * * *. As relevant, NSR
requires major facilities to include
technology consistent with the lowest
achievable emissions rate (‘‘LAER’’) and
to offset any increased emissions with
greater reductions elsewhere.’’ 472 F.3d.
at 900. The Court stated that ‘‘EPA
decided that 1-hour NSR requirements
are no longer required under the Act
and that areas should be constrained
only by the NSR requirements for their
eight-hour classification * * *. This
marked a change from its 2003 notice of
proposed rulemaking, in which EPA
indicated that ‘the major source
applicability cut-offs and offset ratios
continue to apply to the extent that the
area has a higher classification for the 1hour standard than for the 8-hour
standard.’ ’’ 472 F.3d. at 901. The Court
stated that the result of the change from
the 2003 proposal to the approach
adopted in the final Phase 1 Rule was
‘‘to subject fewer areas to LAER and to
offset requirements that themselves are
weakened.’’ Thus, the issue before the
Court involved the substitution of one
set of nonattainment NSR requirements
for another, and not the replacement of
nonattainment NSR with a PSD program
in areas attaining the current NAAQS.
EPA has determined that 1-hour
nonattainment major NSR should not
apply to areas designated attainment for
the 1997 8-hour standard, regardless of
the area’s designation for the 1-hour
standard at the time of designation for
the 8-hour standard. The interpretation
that NSR does not apply to areas
designated attainment for a NAAQS and
thus is not needed in the SIP for such
an area is consistent with Greenbaum v.
EPA, 370 F.3rd 527, at 536 (‘‘It would
make little sense for [NSR] to be
included in the post-attainment SIP, as
the Clean Air Act * * * explicitly states
that attainment area SIPs must include
a PSD program.’’). As the DC Circuit
held in Alabama Power, 636 F.3d 323,
at 365 (DC Cir. 1979), the applicability
of PSD is geographically limited by the
language of CAA section 165(a), which
states that unless specified conditions
are met, ‘‘[n]o major emitting facility
* * * may be constructed in any area
to which this part [Part C] applies’’
(emphasis added). Thus, with respect to
ozone, areas designated attainment for
the 1997 8-hour standard are subject to
section 165(a) but not to the section
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172(c)(5) SIP requirement. For this
reason, EPA is not requiring that areas
designated attainment for the 1997 8hour standard retain 1-hour NSR
provisions. Instead, 8-hour attainment
areas may request that 1-hour
nonattainment NSR provisions be
removed from their SIPs, with PSD
taking the place of the nonattainment
NSR program for ozone. For the same
reason, as set forth below, EPA is
proposing to revise the regulations to
clarify that this treatment also applies to
areas that are redesignated to attainment
for the 1997 8-hour standard.
2. Treatment of Areas Designated
Nonattainment for Both 1-Hour and 8Hour Ozone NAAQS
Although the Court in South Coast
determined that 1-hour nonattainment
NSR must be retained as an antibacksliding measure in 1997 8-hour
nonattainment areas that were
designated nonattainment for the 1-hour
standard at the time of the 8-hour
designations, the Court did not
specifically address how long such
requirements must remain in place. In
our Phase 1 Rule, we linked removal of
the 1-hour requirements retained as
‘‘applicable requirements’’ to attainment
of the 8-hour NAAQS. The rule at
§ 51.905(b) provides that an 8-hour
nonattainment area will remain subject
to the 13 applicable requirements listed
in § 51.900(f) until it attains the 8-hour
standard. Section 51.905(b) further
provides that after an area attains the 8hour standard, the State may request
that the 1-hour obligations be shifted to
contingency measures, but may not
remove them completely from the SIP.
The preamble to the Phase 1 Rule
clarified that, ‘‘it is appropriate to
maintain these mandated controls to
remain as part of the implemented SIP
until an area attains the 8-hour NAAQS
and is redesignated to attainment.’’ (69
FR 23983).
In deciding how to adopt regulatory
text consistent with the South Coast
decision, we do not believe it is
appropriate to add the 1-hour
nonattainment NSR obligation to the list
of applicable requirements in § 51.900(f)
because we do not believe it should
remain in the SIP as a contingency
measure after redesignation for the 8hour standard. Consistent with
Greenbaum v. EPA, 370 F.3rd 527, 536,
nonattainment major NSR requirements
are no longer a necessary SIP element
once an area is redesignated to
attainment for a NAAQS. Upon
redesignation to attainment, the PSD
program requirements would apply to
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the area.8 Therefore, nonattainment
major NSR requirements may be
removed from the SIP, and do not need
to be retained as contingency measures
for a NAAQS.
In lieu of adding 1-hour major NSR to
the § 51.900(f) list of applicable
requirements, we are proposing to add
a new § 51.905(g) and an analogous new
Section VII in Appendix S. The new
sections clarify the obligation for any
1997 8-hour nonattainment area with a
1-hour nonattainment designation as of
the effective date of designation for the
8-hour standard (June 15, 2004 for most
areas) to continue to apply 1-hour
nonattainment NSR requirements
consistent with the area’s 1-hour
classification, as listed in 40 CFR part
81 subpart C.
Although we are not proposing to add
NSR to the list of applicable
requirements in 51.900(f), we are
proposing that, as with those
requirements, 1-hour NSR requirements
continue to be required SIP elements
until redesignation to attainment of the
1997 8-hour ozone NAAQS.9 Under
EPA’s proposed revision set forth above,
the 1-hour major NSR requirements may
be removed only after an area has
attained and been redesignated for the
1997 8-hour NAAQS. Under this
approach, the 1-hour NSR requirements
would be treated in a manner similar to
the 13 applicable requirements listed at
§ 51.900(f), except that the State would
not be required to retain the 1-hour NSR
requirements as contingency measures.
Instead, PSD would apply upon
redesignation to attainment for the 1997
8-hour standard, and 1-hour NSR
requirements could be removed entirely
from the SIP.
As set forth in section III.B.2.b., we
are also requesting comment on a
separate and additional basis—
attainment of the 1-hour ozone NAAQS
(plus specified criteria)—for allowing
States to remove 1-hour NSR
requirements. This opportunity to
remove 1-hour NSR requirements from
the approved SIP would be in addition
to the approach of allowing States to
remove 1-hour NSR upon redesignation
to attainment for the 8-hour NAAQS.
Under this additional approach, where
an area attains the 1-hour standard and
meets certain other conditions (as
8 The one exception to this is that all areas located
in the Ozone Transport Region, including those
designated attainment, are subject to the obligation
to have a nonattainment NSR program.
9 We note that although the regulatory text
provides that the requirements of section 51.900(f)
apply until an area ‘‘attains’’ the 8-hour ozone
NAAQS, the accompanying preamble text clarifies
that these requirements apply until an area is
redesignated as attainment for the 1997 8-hour
ozone NAAQS. 69 FR 23982–83.
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determined by EPA, in a rulemaking
described below) but is still violating
the 8-hour standard, the State would be
permitted, but not required, to remove
the 1-hour nonattainment NSR
requirements and apply the NSR
requirements associated with the 8-hour
classification.
We note that neither EPA’s proposal
nor the separate, additional approach to
removal would have any effect on any
source permit conditions established
during the time period the 1-hour major
NSR program applied. The NSR
regulations do not provide a mechanism
for major NSR permit conditions
established under the 1-hour standard to
be removed from a permit or modified
when a SIP is later revised to remove
the 1-hour NSR thresholds and offset
requirements. Replacement or removal
of NSR SIP provisions does not relieve
sources of their obligations under
previously established permit
conditions.
In addition, we note that this proposal
to allow removal of the 1-hour major
NSR requirements after an area has
attained and been redesignated for the
1997 8-hour NAAQS could be affected
by the transition to a newer ozone
standard.
a. Rationale for Removal of 1-Hour NSR
Upon Redesignation to Attainment of
8-Hour NAAQS
We are proposing to require areas to
retain 1-hour major NSR requirements
until the area attains and is redesignated
for the 1997 ozone 8-hour standard,
regardless of when, if ever, the area
attains the 1-hour standard. The
rationale for this approach, as set forth
in the June 2, 2003, Proposed Rule to
Implement the 8-Hour Ozone National
Ambient Air Quality Standard (68 FR
32824), was that the 1997 8-hour
standard was the standard that EPA
determined would protect public health
and the environment. We adopted this
approach for the 13 listed applicable
requirements in § 51.900(f), as discussed
in the final Phase 1 Rule (69 FR 23982–
83). We believe this rationale also
applies to NSR. As stated in the Phase
1 Rule, Congress contemplated that
States implement certain requirements
mandated under Subpart 2, including
specific NSR thresholds and offsets.
Once an area demonstrates that it has
met and can maintain the more health
protective standard (the 1997 8-hour
NAAQS), it would be appropriate to
remove 1-hour NSR requirements. In
addition, adopting this approach for
NSR would result in similar treatment
of NSR and the applicable requirements
in § 51.900(f), the only difference being
that States would not need to include
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51965
nonattainment NSR as a contingency
measure. We believe it is appropriate to
treat NSR in a manner consistent with
the § 51.900(f) applicable requirements.
While we are taking comment on the
possibility of allowing States to remove
NSR earlier than the other requirements
in some instances (see discussion below
on the additional basis), we do not plan
to finalize that approach unless we are
persuaded that NSR is sufficiently
different from the applicable
requirements identified in 51.900(f) to
warrant different treatment.
EPA’s proposed approach aligns with
EPA’s current practice regarding areas
that were initially designated as
attainment for the 1997 8-hour NAAQS
or have been redesignated to attainment
for the 1997 8-hour ozone NAAQS. As
noted above, EPA’s current practice is to
allow areas to revise their SIPs to
remove the 1-hour NSR requirements.
This approach harmonizes the treatment
of areas initially designated as 8-hour
attainment and nonattainment areas that
are redesignated to attainment for the 8hour standard. In lieu of nonattainment
NSR, these areas become subject to PSD
programs based on their 8-hour
attainment designation or redesignation.
Additionally, we propose adding
language to the CFR to clarify
applicability of section 181(b)(4)(B) for
areas not attaining the NAAQS.
Notwithstanding revocation of earlier
ozone NAAQS, States with areas
designated nonattainment for earlier
ozone NAAQS, and classified as severe
or extreme for such standards as
provided in 40 CFR part 81, remain
subject to the obligation to adopt
programs under sections 181(b)(4) of the
CAA. Section 181(b)(4)(B) specifies
applicability of NSR per requirements
for extreme areas for specific instances
of failure to meet attainment schedules.
b. Supplemental Proposal: Removal of
1-Hour NSR Upon Attainment of 1-Hour
NAAQS and Determination of Eligibility
To Remove NSR Requirements
(1) Attainment of 1-Hour NAAQS and
Related Criteria
We are requesting comment on an
additional approach that would allow
States to remove the 1-hour NSR
requirements upon attainment of the 1hour ozone NAAQS and satisfaction of
other criteria discussed below in section
ii. After notice and comment
rulemaking, EPA would make a
determination that the area has attained
the 1-hour standard and met the
additional requisite criteria. This would
serve as a ‘‘determination of eligibility to
remove 1-hour NSR requirements.’’ An
area that receives such a determination
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would still be required to implement the
nonattainment NSR requirements
associated with its 8-hour classification.
In our 2003 proposed rule, we took
comment on the option of allowing 1hour obligations to be removed upon
attaining the level of the 1-hour
standard. We noted that the rationale for
allowing 1-hour obligations to be
removed upon attaining the level of the
1-hour standard was that ‘‘Congress
intended an area to continue to
implement these obligations until it
attained the 1-hour standard, at which
time the area would be able to
discontinue implementation upon a
showing of continued maintenance’’ (68
FR 32824, June 2, 2003). While we did
not finalize this option for the
§ 51.900(f) applicable requirements, we
are requesting comment on whether we
should adopt a variant of it for NSR, and
whether doing so would be consistent
with the CAA and the South Coast
decision. In the final Phase 1 Rule, EPA
decided that attaining the 1-hour
standard would not be a basis for
allowing States to remove from the SIP
the 13 applicable requirements related
to 1-hour nonattainment identified at
51.900(f). The question is whether NSR
thresholds and offsets are more closely
linked to a particular standard than the
13 requirements listed in 51.900(f), and
thus might be removed following a
determination of attainment of that
standard, coupled with other
safeguards.
As noted above in the discussions of
8-hour attainment areas and whether
NSR requirements should become a
contingency measure in a maintenance
plan attainment SIP, Congress clearly
intended that nonattainment major NSR
was required only until the area was
redesignated to attainment. After that
point, nonattainment major NSR for that
area would normally be superseded by
the PSD program, whose purpose is ‘‘to
protect public health and welfare from
any actual or potential adverse effect
which in the Administrator’s judgment
may reasonably be anticipated to occur
* * * notwithstanding attainment and
maintenance.’’ 42 U.S.C. 7470. In the
case of areas that remain nonattainment
for the 8-hour standard after attaining
the 1-hour standard, however, the 8hour major NSR requirements would
apply rather than PSD. Thus, the
concern regarding the retention of
nonattainment major NSR requirements
in an attainment SIP is not present here.
We are interested in comments
addressing whether 1-hour NSR is
sufficiently different from the applicable
requirements identified in the Phase 1
Rule that we should allow States to
remove it from their SIPs prior to
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redesignation for the 1997 8-hour ozone
standard.
(2). Defining ‘‘Eligibility To Remove
NSR Requirements’’ Associated With the
Revoked 1-Hour Standard
In this section, we address which
requirements, in addition to attainment
for the 1-hour ozone standard, the
Supplemental Option would impose on
an area seeking to remove from its SIP
1-hour NSR requirements prior to
redesignation for the 1997 8-hour
standard. In the Phase 1 Rule, we stated
that upon revocation of the 1-hour
standard, EPA was no longer obligated
to determine whether an area had
attained that standard. However, under
this supplemental approach, we are
proposing that a determination by EPA
that an area has attained the 1-hour
standard would be among the criteria
for issuance of a determination of
eligibility to remove 1-hour NSR
obligations. Prior to the time that the 1hour standard was revoked, a change in
an ozone nonattainment area’s
designation status required that the area
satisfy the criteria in section
107(d)(3)(E) of the CAA. These criteria
include: (i) A finding of attainment of
the 1-hour standard based upon the
most recent three consecutive years of
complete, quality assured air quality
data; (ii) the applicable implementation
plan for the area under section 110(k)
has been fully approved by the
Administrator; (iii) the improvement in
air quality leading to attainment of the
1-hour NAAQS is due to permanent and
enforceable reductions in emissions
resulting from implementation of the
applicable implementation plan and
Federal air pollutant control regulations
and other permanent and enforceable
reductions; (iv) the Administrator has
fully approved a maintenance plan for
the area as meeting the requirements of
section 175A; and (v) the State
containing such area has met all
requirements applicable to the area
under CAA section 110 and part D that
pertain to the 1-hour ozone standard.
Under this alternative, additional
approach, we are taking comment on
which of the five criteria that would
have applied for purposes of
redesignating an area for the 1-hour
standard should apply for declaring that
an area has attained the 1-hour standard
and is eligible to remove 1-hour NSR
requirements.
Under EPA’s supplemental option,
removal of the 1-hour requirements
would be permitted upon a
determination of eligibility to remove
NSR requirements. To remove such
programs, States would need to submit
a revision to their SIP, subject to the
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provisions of section 110(l) which states
that EPA may not approve a SIP revision
‘‘if the revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress (as defined in section 171), or
any other applicable requirement of the
Act.’’
In our Phase 1 Rule, which was
vacated by the Court, we concluded that
a State’s removal of 1-hour NSR
requirements would not interfere with
8-hour attainment or reasonable further
progress. However, upon additional
consideration we now believe that we
do not currently have adequate data on
the extent to which States may be
relying on particular major NSR
thresholds and offset ratios for the
growth projections contained in their 8hour attainment plans. Therefore, we
are not proposing an advance section
110(l) determination as part of this
action. We believe a case-by-case
approach to section 110(l) under the
supplemental option detailed in this
proposal will ensure that any SIP
changes upon a determination of
eligibility to remove NSR requirements
for the 1-hour ozone NAAQS would not
interfere with reasonable further
progress towards attainment of the
8-hour ozone NAAQS.
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is a
significant regulatory action because it
raises novel legal or policy issues
arising out of legal mandates.
Accordingly, EPA submitted this action
to the Office of Management and Budget
(OMB) for review under EO 12866 and
any changes made in response to OMB
recommendations have been
documented in the docket for this
action.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. This
action sets forth EPA’s proposed rule for
addressing portions of the partial
vacatur of EPA’s Phase 1 Rule for
implementation of the 1997 8-Hour
ozone NAAQS. However, OMB has
previously approved the information
collection requirements contained in the
existing Phase 1 Rule (April 30, 2004; 69
FR 23951) and the Phase 2 Rule
(November 29, 2005; 70 FR 71612)
under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB Control Number
2060–0594. The OMB control numbers
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listed in 40 CFR part 9.
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C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an Agency to prepare
a regulatory flexibility analysis of any
regulation subject to notice and
comment rulemaking requirements
under the Administrative Procedures
Act or any other statute unless the
Agency certifies the rule will not have
a significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts
of this rule on small entities, small
entity is defined as: (1) A small business
that is a small industrial entity as
defined in the U.S. Small Business
Administration (SBA) regulations at 13
CFR part 201; (2) a small government
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impact of this proposed rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
This proposed rule will not impose any
requirements on small entities. Rather,
we are issuing this rule to give
additional clarity to States on the
transition from 1-hour to 8-hour major
NSR requirements. We continue to be
interested in the potential impacts of the
proposed rule on small entities and
welcome comments on issues related to
such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal
mandate under the provisions of Title II
of the Unfunded Mandates Reform Act
of 1995 (URMA), 2 U.S.C. 1531–1538 for
State, local, and Tribal governments and
the private sector. The action imposes
no enforceable duty on any State, local
or Tribal governments or the private
sector. Therefore, this action is subject
to the requirements of section 202 and
205 of the UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because is contains no regulatory
requirements that might significantly or
uniquely affect small governments. This
action proposes to revise the rule for
implementing the 1997 8-hour ozone
NAAQS to address how nonattainment
major NSR requirements associated with
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the former 1-hour ozone NAAQS should
apply under the anti-backsliding
provisions of the implementation rule.
Also proposed is a framework for
allowing States to remove and/or no
longer implement the 1-hour major NSR
requirements when certain prescribed
conditions are met. This proposed rule
responds to the ruling by the U.S. Court
of Appeals for the District of Columbia
Circuit that the 1-hour major NSR
program, as it applies to areas that failed
to attain the 1-hour standard by the
required date, is a required control to
prevent backsliding.
E. Executive Order 13132—Federalism
This proposed rule does not have
federalism implications. It will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This action sets
forth EPA’s proposed rule for addressing
portions of the partial vacatur of EPA’s
Phase 1 Rule for implementation of the
1997 8-Hour ozone NAAQS. Thus,
Executive Order 13132 does not apply
to this proposed rule.
In the spirit of Executive Order 13121
and consistent with EPA policy to
promote communications between EPA
and State and local governments, EPA
specifically solicits comments on this
proposed rule from State and local
officials.
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
This action does not have Tribal
implications as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). It does not have a substantial
direct effect on one or more Indian
Tribes, since no Tribe has to develop a
SIP under this proposal. Furthermore,
this proposed rule does not affect the
relationship or distribution of power
and responsibilities between the Federal
Government and Indian Tribes. The
CAA and the Tribal Air Rule establish
the relationship of the Federal
Government and Tribes in developing
plans to attain the NAAQS, and these
proposed revisions to the regulations do
nothing to modify that relationship.
Thus, Executive Order 13175 does not
apply to this action.
EPA specifically solicits additional
comment on the proposed rule from
Tribal officials.
PO 00000
Frm 00012
Fmt 4702
Sfmt 4702
51967
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
This action is not subject to Executive
Order 13045 (62 FR 19885, April 23,
1997) because it is not economically
significant as defined in Executive
Order 12866, and because the agency
does not believe the environmental
health or safety risks addressed by this
action present a disproportional risk to
children. This action sets forth EPA’s
proposed rule for addressing portions of
the partial vacatur of EPA’s Phase 1
Rule for implementation of the 1997 8Hour ozone NAAQS. The public is
invited to submit comments or identify
peer-reviewed studies and data that
assess effects of this proposed action.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This proposed rule is not a
‘‘significant energy action’’ as defined in
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)) because it is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
This action sets forth EPA’s proposed
rule for addressing portions of the
partial vacatur of EPA’s Phase 1 Rule for
implementation of the 1997 8-Hour
ozone NAAQS.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This proposed rule does not involve
technical standards. Therefore, EPA is
not considering the use of any voluntary
consensus standards.
E:\FR\FM\24AUP1.SGM
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51968
Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
2. Section 51.905 is amended by
revising paragraph (a)(3)(i), and by
adding a new paragraph (g) to read as
follows:
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this
proposed rule will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it does not affect the level of
protection provided to human health or
the environment. The proposed
revisions implement a previously
promulgated health-based Federal
standard (the 8-hour ozone NAAQS)
that is designed to protect all segments
of the general population. As such, they
do not adversely affect the health or
safety of minority or low income
populations and are designed to protect
and enhance the health and safety of
these and other populations.
§ 51.905 How do areas transition from the
1-hour NAAQS to the 8-hour NAAQS and
what are the anti-backsliding provisions?
K. Determination Under Section 307(d)
Pursuant to section 307(d)(1)(V) of the
CAA, the Administrator determines that
this action is subject to the provisions
of section 307(d). Section 307(d)(1)(V)
provides that the provisions of section
307(d) apply to ‘‘such other actions as
the Administrator may determine.’’
List of Subjects in 40 CFR Part 51
Environmental protection, Air
pollution control, Intergovernmental
relations, Ozone, Transportation,
Volatile organic compounds.
wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Dated: August 18, 2010.
Lisa P. Jackson,
Administrator.
For the reasons stated in the
preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be
amended as follows:
PART 51—REQUIREMENTS FOR
PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION
PLANS
1. The authority citation for part 51
continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
7671q.
VerDate Mar<15>2010
14:48 Aug 23, 2010
Jkt 220001
(a) * * *
(3) * * *
(i) Obligations in an approved SIP.
For an area that is designated 8-hour
NAAQS attainment/1-hour NAAQS
nonattainment, the State may request
that obligations under the applicable
requirements of § 51.900(f) be shifted to
contingency measures, consistent with
sections 110(l) and 193 of the CAA, after
revocation of the 1-hour NAAQS;
however, the State cannot remove the
obligations from the SIP. For such areas,
the State may request that the
nonattainment major NSR provisions
that applied based on the area’s
designation and classification under the
1-hour NAAQS be removed from the SIP
on or after the date of revocation of the
1-hour NAAQS and need not be shifted
to contingency measures.
*
*
*
*
*
(g) What other requirements for the
1-hour standard apply? (1) The
requirements for nonattainment new
source review that applied pursuant to
sections 172(c)(5), 173, and 182 of the
Clean Air Act based on the area’s
classification under the 1-hour NAAQS
continue to be required elements of an
approvable implementation plan for any
ozone nonattainment area that was
designated nonattainment for the 1-hour
NAAQS at the time of designation as
ozone nonattainment for the 8-hour
NAAQS. Notwithstanding the
revocation of the 1-hour NAAQS, the
designation and classification of the
area for the 1-hour standard as provided
in 40 CFR Part 81 shall apply for
determining the applicable 1-hour NSR
obligation for an area. These
requirements remain required elements
of the implementation plan until such
time as the area is redesignated to
attainment for the 1997 8-hour
attainment area for the ozone NAAQS
pursuant to Clean Air Act section
107(d)(3)(E).
(2) Notwithstanding revocation of the
1-hour ozone NAAQS, States with areas
designated nonattainment for the 1-hour
ozone NAAQS and classified as severe
or extreme for that standard as provided
in 40 CFR Part 81 remain subject to the
obligation to adopt programs under
sections 181(b)(4) of the CAA for the 1hour ozone NAAQS.
3. Section 51.914 is revised to read as
follows:
PO 00000
Frm 00013
Fmt 4702
Sfmt 4702
§ 51.914 What new source review
requirements apply for ozone
nonattainment areas?
(a) The requirements for new source
review for the 8-hour ozone standard are
located in § 51.165.
(b) For areas designated
nonattainment for the 1-hour ozone
standard as of the effective date of
designation for the 8-hour standard,
values for applicability thresholds and
offset requirements as required under
§ 51.165 shall be determined by the 1hour nonattainment classifications
listed for those areas in 40 CFR Part 81,
Subpart C. The 1-hour applicability
thresholds and offset requirements shall
be retained until such time as the area
is redesignated to attainment for the
1997 8-hour ozone NAAQS under
section 107(d)(3)(E) of the Clean Air
Act, at which point the State may
request their removal.
4. Appendix S to part 51 is amended
by adding section VII. to read as follows:
Appendix S to Part 51—Emission Offset
Interpretative Ruling
*
*
*
*
*
VII. Anti-Backsliding Measures
1-hour ozone NAAQS nonattainment area
new source review.
Any 8-hour ozone nonattainment area that
was designated nonattainment for the 1-hour
ozone NAAQS at the time of designation for
the 8-hour NAAQS must continue to apply
new source review requirements consistent
with that area’s 1-hour classification, as
listed in 40 CFR Part 81, Subpart C. These
requirements remain applicable until such
time as the 8-hour nonattainment area is
redesignated to attainment for the 8-hour
ozone NAAQS standard under 107(d)(3)(E) of
the Clean Air Act.
[FR Doc. 2010–20992 Filed 8–23–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 55
[EPA–R01–OAR–2010–0442; A–1–FRL–
9167–8]
Outer Continental Shelf Air
Regulations Consistency Update for
Massachusetts
Environmental Protection
Agency (EPA).
ACTION: Proposed rule-consistency
update.
AGENCY:
EPA is proposing to update to
a portion of the Outer Continental Shelf
(‘‘OCS’’) Air Regulations. Requirements
applying to OCS sources located within
25 miles of States’ seaward boundaries
must be updated periodically to remain
SUMMARY:
E:\FR\FM\24AUP1.SGM
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Agencies
[Federal Register Volume 75, Number 163 (Tuesday, August 24, 2010)]
[Proposed Rules]
[Pages 51960-51968]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-20992]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[EPA-HQ-OAR-2008-0462, FRL-9192-7]
RIN 2060-AP30
Proposed Rule To Implement the 1997 8-Hour Ozone National Ambient
Air Quality Standard: New Source Review Anti-Backsliding Provisions for
Former 1-Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed action would clarify the obligation to retain 1-
hour nonattainment new source review (NSR) program requirements for
certain areas designated nonattainment for the 1997 8-hour ozone
national ambient air quality standard (NAAQS). The EPA proposes to
revise the rule for implementing the 1997 8-hour ozone NAAQS to address
how NSR requirements that applied by virtue of the area's 1-hour ozone
NAAQS classification should apply under the anti-backsliding provisions
of the 1997 8-hour implementation rule. This proposed rule responds to
the ruling by the U.S. Court of Appeals for the District of Columbia
Circuit that the 1-hour major NSR program, as it applies to areas that
were designated 1-hour nonattainment on the date of designation for the
1997 8-hour NAAQS, is a required control to prevent backsliding. EPA
has separately proposed to remove the vacated provisions of the rule
that allowed States to remove (or not include, if not yet adopted) 1-
hour major NSR for nonattainment areas from their State implementation
plans (SIPs).
DATES: Comments. Comments must be received on or before September 23,
2010.
Public Hearing. If anyone contacts us requesting a public hearing
by September 3, 2010, we will hold a public hearing approximately 30
days after publication of this proposal in the Federal Register.
Additional information about the hearing would be published in a
subsequent Federal Register notice.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0462, by one of the following methods:
https://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: a-and-r-docket@epa.gov.
Fax: (202) 566-9744.
Mail: Air and Radiation Docket and Information Center,
Attention Docket ID No. EPA-HQ-OAR-2008-0462, Environmental Protection
Agency, 1301 Constitution Ave., NW., Washington, DC 20460. Mail Code:
2822T. Please include two copies if possible.
Hand Delivery: Air and Radiation Docket and Information
Center, Attention Docket ID No. EPA-HQ-OAR-2008-0462, Environmental
Protection Agency in the EPA Headquarters Library, Room Number 3334 in
the EPA West Building, located at 1301 Constitution Ave., NW.,
Washington, DC. The EPA/DC Public Reading Room hours of operation will
be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through
Friday, Air and Radiation Docket and Information Center.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0462. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
on-line at https://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be confidential business information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through https://www.regulations.gov, or e-mail. The https://www.regulations.gov Web Site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
[[Page 51961]]
Docket: All documents in the docket are listed in https://www.regulations.gov. Although listed in the index, some information is
not publicly available, i.e., CBI or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in https://www.regulations.gov or in
hard copy at the Air and Radiation Docket and Information Center, EPA
Headquarters Library, Room Number 3334 in the EPA West Building,
located at 1301 Constitution Ave., NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744.
Public Hearing: If a hearing is held, it will be held at the U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, Washington,
DC 20004.
FOR FURTHER INFORMATION CONTACT: For information on 1-hour major NSR,
contact: Mr. David Painter, Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency (C504-03), Research
Triangle Park, NC 27711, telephone number (919) 541-5515, fax number
(919) 541-5509 or by e-mail at painter.david@epa.gov.
To request a public hearing, contact Mrs. Pamela Long, Office of
Air Quality Planning and Standards (C504-03), U.S. Environmental
Protection Agency, Research Triangle Park, North Carolina 27711,
telephone number (919) 541-0641 or by e-mail at long.pam@epa.gov, fax
number (919) 541-5509.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities potentially affected directly by this action include
certain State and Tribal governments that manage air quality for areas
designated nonattainment for the 1997 ozone NAAQS. See Table 1 in this
notice for a list of potentially affected areas.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
https://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed to be CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this notice is also available on the World Wide Web. A copy of this
notice will be posted at https://www.epa.gov/nsr.
D. How can I find information about a possible public hearing?
To request a public hearing or information pertaining to a public
hearing on this document, contact Mrs. Pamela Long at (919) 541-0641
before 5 p.m. on September 3, 2010. Persons interested in presenting
oral testimony should contact Mrs. Pamela Long at (919) 541-0641. Any
person who plans to attend the hearing should also contact Mrs. Pamela
Long at (919) 541-0641 or visit the EPA's Web Sites at https://www.epa.gov/nsr to learn if a hearing will be held.
E. How is this notice organized?
The information presented in this notice is organized as follows:
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my comments for EPA?
C. Where can I get a copy of this document and other related
information?
D. How can I find information about a possible public hearing?
E. How is this notice organized?
II. Background for This Proposal
A. Anti-Backsliding Provisions
B. Reconsideration of Certain Provisions of the Phase 1 Rule
C. South Coast Decision
III. This Action
A. Applicability of 1-Hour NSR Requirements
B. Removal of 1-Hour NSR Requirements
C. Section 110(l)
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132--Federalism
F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology and Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
II. Background for This Proposal
A. Anti-Backsliding Provisions
The EPA codified the anti-backsliding provisions governing the
transition from the revoked 1-hour ozone NAAQS to the 1997 8-hour ozone
NAAQS in 40 CFR 51.905(a) (part of the ``Phase 1 Rule''). These
provisions, as promulgated, retained 13 requirements specified under
section 182 of the Clean Air Act (CAA or Act), as those requirements
applied for the 1-hour ozone standard.\1\ These 13 requirements were
identified as ``applicable requirements'' in the regulation. 40 CFR
51.900(f). The applicable requirements include: (1) Reasonably
available control technology (RACT) for major stationary sources; (2)
vehicle inspection and maintenance (I/M) programs; (3) major source
applicability thresholds for purposes of RACT; (4) rate of progress
reductions; (5) stage II gasoline vehicle refueling vapor recovery; (6)
clean fuels fleet program under section 183(c)(4) of the CAA; (7) clean
fuels for boilers under
[[Page 51962]]
section 182(e)(3) of the CAA; (8) transportation control measures; (9)
enhanced (ambient) monitoring; (10) transportation controls under
section 182(c)(5); (11) vehicle miles traveled provisions; (12)
NOX requirements under section 182(f) of the CAA; and (13)
attainment demonstrations. Under the Phase 1 Rule, these requirements
continue to apply to an area after revocation of the 1-hour NAAQS if
the requirements were applied in the area based on the area's 1-hour
ozone designation and classification as of the effective date of its
1997 8-hour designation (for most areas the effective date of the 1997
8-hour designation was June 15, 2004). 40 CFR 51.900(h).
---------------------------------------------------------------------------
\1\ See Final Rule to Implement the 8-Hour Ozone National
Ambient Air Quality Standard-Phase 1 (69 FR 23951, April 30, 2004).
---------------------------------------------------------------------------
The rule further provides that an area remains subject to these
applicable requirements until the area attains the 1997 8-hour NAAQS.
40 CFR 51.905(b). Additionally, such obligations cannot be removed from
a SIP, even if we redesignate the area to attainment for the 8-hour
NAAQS. However, upon redesignation to attainment of the 8-hour ozone
standard, a State could request that such requirements be moved to the
contingency measures portion of the SIP (40 CFR 51.905(b)).
In the Phase 1 Rule and in two subsequent reconsideration rules
(which are described below), EPA explicitly excluded 1-hour major NSR
from the list of retained applicable requirements (Sec. 51.905(e)).\2\
The Phase 1 Rule provided at Sec. 51.905(e)(4)(i) that when we revoked
the 1-hour standard, the State would no longer be required to retain
the major NSR provisions associated with the 1-hour NAAQS in its SIP
for areas that were designated nonattainment for the 1-hour ozone
standard. Instead, the State could revise its SIP to replace the 1-hour
NSR requirements with those specific to its new 8-hour ozone
designation and classification status. In many cases, this would allow
an area to adopt higher major NSR source applicability thresholds and
lower offset ratios associated with the area's lower 8-hour
classification. This would have the effect of reducing the number of
sources subject to major NSR source requirements, including more
stringent emission limitations and offsets.
---------------------------------------------------------------------------
\2\ Note that if the area is nonattainment for the 1997 8-hour
standard, the CAA requires that nonattainment NSR would apply to the
area based on its classification for the 1997 8-hour standard.
---------------------------------------------------------------------------
The Phase 1 Rule also contained a provision directed specifically
at areas that were designated 8-hour attainment and 1-hour
nonattainment. That provision addressed the applicable requirements
listed in Sec. 51.900(f) as well as 1-hour NSR requirements. With
respect to the 1-hour NSR requirement, Sec. 51.905(a)(3) stated: ``For
such areas, the state may request that the nonattainment NSR provisions
be removed from the SIP on or after the date of revocation of the 1-
hour NAAQS and need not be shifted to contingency measures subject to
paragraph (e)(4) of this section.''
B. Reconsideration of Certain Provisions of the Phase 1 Rule
Following publication of the Phase 1 Rule, the Administrator
received three petitions pursuant to section 307(b)(7)(B) of the CAA
requesting reconsideration of several aspects of the final rule.\3\ EPA
addressed certain issues raised in these petitions in two rulemakings.
In the first reconsideration rulemaking, EPA further clarified the
implementation rule in two respects: (a) CAA section 185 penalty fees
under the 1-hour standard would no longer be applicable after
revocation of the 1-hour standard, and (b) the effective date of
designations under the 1997 8-hour standard (i.e., for almost all
areas, June 15, 2004) is the date for determining which 1-hour control
measures continue to apply in an area once the 1-hour standard is
revoked.\4\ Additionally, EPA clarified that the requirement to retain
1-hour contingency measures for failure to make progress or failure to
attain would no longer apply once we revoked the 1-hour standard.
---------------------------------------------------------------------------
\3\ Petitions for reconsideration of the Phase 1 Rule were filed
by: (1) Earthjustice on behalf of the American Lung Association,
Environmental Defense Fund, Natural Resources Defense Council,
Sierra Club, Clean Air Task Force, Conservation Law Foundation, and
Southern Alliance for Clean Energy; (2) the National Petrochemical
and Refiners Association and the National Association of
Manufacturers; and (3) the American Petroleum Institute, American
Chemistry Council, American Iron and Steel Institute, National
Association of Manufacturers and the U.S. Chamber of Commerce.
\4\ 70 FR 30592 (May 26, 2005).
---------------------------------------------------------------------------
In the second reconsideration rulemaking, we proposed and took
comment on the issue of whether we should interpret the Act to require
8-hour ozone nonattainment areas to retain major NSR requirements that
applied on the basis of the areas' 1-hour ozone nonattainment
classification (70 FR 17018, April 4, 2005). We took final action on
this NSR issue on June 30, 2005 (70 FR 39413, July 8, 2005),
determining not to require States to retain major NSR under the 1-hour
standard once it was revoked.
C. South Coast Decision
In South Coast Air Quality Management District, et al., v. EPA, 472
F.3d 882 (DC Cir. 2006) (South Coast), the Court vacated EPA's waiver
of 1-hour major nonattainment NSR requirements as they apply to the 1-
hour standard and stated that removing them from a SIP ``would
constitute impermissible backsliding.'' The decision was based on
challenges by several parties to EPA's Phase 1 Rule and the two
reconsideration rules. The Court upheld certain challenges and rejected
others, but purported to vacate the Phase 1 Rule in its entirety. South
Coast Air Quality Management District, et al., v. EPA, 472 F.3d 882 (DC
Cir. 2006). The EPA requested rehearing and clarification of the
ruling, and, on June 8, 2007, the Court clarified that it vacated the
rule only to the extent that it had upheld the petitioners' challenges.
South Coast Air Quality Management District, et al., v. EPA, 2007 U.S.
App. LEXIS 13303 (DC Cir. 2007). Thus, the Court vacated the provisions
that waived obligations as they applied under the revoked 1-hour
standard for major nonattainment NSR, CAA section 185 penalty fees, and
contingency measures for failure to attain or to make reasonable
progress toward attainment.
We have separately proposed to remove these provisions from the
regulations at 40 CFR part 51 in order to ensure that the published
regulatory text is consistent with the Court's vacatur. 74 FR 2936
(January 16, 2009). With regard to NSR, the South Coast decision means
that the 1-hour major NSR thresholds and offsets remain applicable to
those areas that had not been redesignated to 1-hour attainment by the
date of designation for the 8-hour ozone NAAQS (except where the area
has since been redesignated to attainment for the 8-hour standard). As
previously stated in the October 3, 2007, memo from Robert J. Meyers to
the Regional Administrators, States are to comply with the South Coast
decision as quickly as possible. States should take appropriate steps
to implement the 1-hour major NSR requirements in accordance with the
South Coast decision without waiting for completion of this rulemaking.
III. This Action
This action proposes regulatory language to clarify the obligation
to retain 1-hour major nonattainment NSR requirements and proposes when
States can request that these requirements be removed from their SIPs.
This proposal focuses on the nonattainment NSR aspects of the South
Coast decision that can be clarified through additions of new rule
language. In a separate action, we have proposed to remove the vacated
regulatory
[[Page 51963]]
provisions in Sec. 51.905(e)(4) which waived the requirement to retain
1-hour requirements for nonattainment NSR in SIPs.\5\ Also, EPA is
proposing to amend Sec. 51.905(a)(3), which details how areas
transition from 1-hour NAAQS to 8-hour NAAQS, and to remove the phrase
``subject to paragraph (e)(4) of this section'' because paragraph
(e)(4) was vacated.
---------------------------------------------------------------------------
\5\ In addition, that separate proposed rule addresses two other
aspects of the rule vacated by the Court in South Coast: (1) How EPA
will classify areas that it had placed under subpart 1 in the Phase
1 Rule, and (2) anti-backsliding requirements for contingency
measures that apply for failure to make progress toward or to attain
the 1-hour standard.
---------------------------------------------------------------------------
A. Applicability of 1-Hour NSR Requirements
In South Coast, the Court concluded that the 1-hour major NSR
requirements are controls, and that withdrawing them from the 8-hour
nonattainment NSR SIP ``would constitute impermissible backsliding.''
472 F.3d. 882, 900. The Court vacated the provision of the Phase 1 Rule
that allowed States, regardless of the 8-hour designation for an area,
to request that the SIP be revised to remove 1-hour major NSR
requirements upon revocation of the 1-hour standard.\6\ As noted above,
we have previously proposed to remove that vacated provision. 74 FR
2936 (January 16, 2009). In this action, we are proposing to add new
regulatory text to make it clear that any 8-hour nonattainment area
designated as 1-hour nonattainment as of the date of 1997 8-hour NAAQS
designation must continue to apply NSR requirements consistent with
that area's 1-hour classification.\7\ Such areas cannot remove 1-hour
major NSR requirements from their SIPs based solely on revocation of
the 1-hour standard. The implications for areas that are designated
attainment for the 1997 8-hour standard, or have been redesignated to
attainment for that standard, and that were designated nonattainment
for the 1-hour standard at the time of designation for the 1997 8-hour
standard are discussed in section III.B.1. of this preamble.
---------------------------------------------------------------------------
\6\ These same provisions also allowed States which had not yet
adopted such programs to not adopt and submit such SIPs. The Court
also vacated the regulation to the extent it waived the obligation
to submit such SIPs.
\7\ In most areas, the date of designation was June 15, 2004.
---------------------------------------------------------------------------
The areas for which anti-backsliding requirements would have
applied as of June 15, 2004, are listed in Table 1. The areas in Table
1 had a 1-hour NAAQS nonattainment classification with more stringent
NSR program requirements than the classification under the 1997 8-hour
standard on the date of designation under the 8-hour standard, June 15,
2004. Some areas potentially affected have been redesignated to
attainment for the 1997 ozone NAAQS since June 15, 2004, and would be
treated as described in section III.B.
Table 1--Ozone Nonattainment Areas Potentially Affected by This Rule
----------------------------------------------------------------------------------------------------------------
Part 81, 1997 8-hour NAA Part 81, 1-Hour, NAA
State -------------------------------------------------------------------------------------------
Area Classification Area Classification
----------------------------------------------------------------------------------------------------------------
AZ.................. Phoenix-Mesa, AZ... Subpart 1............... Phoenix, AZ....... Serious.
CA.................. Los Angeles South Severe-17............... Los Angeles South Extreme.
Coast Air Basin, Coast Air Basin,
CA. CA.
CA.................. Los Angeles-San Moderate................ Southeast Desert Severe-17.
Bernardino Cos Modified AQMA, CA.
(West Mojave), CA.
CA.................. Riverside Serious................. Southeast Desert Severe-17.
(Coachella Modified AQMA, CA.
Valley), CA.
CA.................. Sacramento Metro, Serious................. Sacramento Metro, Severe-15.
CA. CA.
CA.................. San Joaquin Valley, Serious................. San Joaquin Extreme.
CA. Valley, CA.
CA.................. Ventura Co, CA..... Moderate................ Ventura Co, CA.... Severe-15.
CT.................. Greater Moderate................ Greater Serious.
Connecticut, CT. Connecticut, CT.
DC-MD-VA............ Washington DC-MD-VA Moderate................ Washington DC-MD- Severe-15.
VA.
GA.................. Atlanta, GA........ Marginal................ Atlanta, GA....... Severe-15.
IL-IN............... Chicago-Gary-Lake Moderate................ Chicago-Gary-Lake Severe-17.
County, IL-IN. County, IL-IN.
LA.................. Baton Rouge, LA.... Marginal................ Baton Rouge, LA... Severe-15.
MA.................. Boston-Lawrence- Moderate................ Boston-Lawrence- Serious.
Worcester (E. MA), Worcester (E.
MA. Mass), MA-NH.
MA.................. Springfield Moderate................ Springfield Serious.
(Western MA), MA. (Western MA), MA.
MD.................. Baltimore, MD...... Moderate................ Baltimore, MD..... Severe-15.
NH.................. Boston-Manchester- Moderate................ Boston-Lawrence- Serious.
Portsmouth (SE), Worcester, NH.
NH.
NH.................. Boston-Manchester- Moderate................ Portsmouth-Dover- Serious.
Portsmouth (SE), Rochester, NH.
NH (Portsmouth-
Dover-Rochester,
NH part).
NY.................. Albany-Schenectady- Subpart 1............... Albany-Schenectady- Marginal.
Troy, NY. Troy, NY.
NY.................. Buffalo-Niagara Subpart 1............... Buffalo-Niagara Marginal
Falls, NY*. Falls, NY..
NY.................. Essex Co, NY*...... Subpart 1............... Essex Co, NY...... Marginal.
NY-NJ-CT............ New York-N. New Moderate................ New York-N. New Severe-17.
Jersey-Long Jersey-Long
Island, NY-NJ-CT. Island, NY-NJ-CT.
PA.................. Allentown-Bethlehem- Subpart 1............... Allentown- Marginal.
Easton, PA*. Bethlehem-Easton,
PA-NJ.
PA.................. Altoona, PA*....... Subpart 1............... Altoona, PA....... Marginal.
PA.................. Erie, PA*.......... Subpart 1............... Erie, PA.......... Marginal.
PA.................. Harrisburg-Lebanon- Subpart 1............... Harrisburg-Lebanon- Marginal.
Carlisle, PA*. Carlisle, PA.
PA.................. Johnstown, PA*..... Subpart 1............... Johnstown, PA..... Marginal.
PA.................. York, PA*.......... Subpart 1............... York, PA.......... Marginal.
RI.................. Providence, RI (All Moderate................ Providence, RI Serious.
counties in RI). (All counties in
RI).
TX.................. Beaumont-Port Marginal................ Beaumont-Port Serious.
Arthur, TX. Arthur, TX.
TX.................. Dallas-Fort Worth, Moderate................ Dallas-Fort Work, Serious.
TX. TX.
TX.................. Houston-Galveston- Moderate................ Houston-Galveston- Severe-17.
Brazoria, TX. Brazoria, TX.
WI.................. Milwaukee-Racine, Moderate................ Milwaukee-Racine, Severe-17.
WI. WI.
----------------------------------------------------------------------------------------------------------------
* Indicates area has been redesignated to ``attainment'' as of July 2010 for the 1997 8-hour ozone standard.
Areas that have been redesignated to attainment are no longer required to implement nonattainment NSR, but
must at a minimum implement the PSD program.
[[Page 51964]]
B. Removal of 1-Hour NSR Requirements
1. Treatment of 8-Hour Attainment Areas
EPA does not interpret the South Coast decision as requiring that
1-hour nonattainment NSR be retained in areas designated attainment for
the 1997 8-hour standard. Accordingly, in this notice EPA is clarifying
that it will continue to follow the provisions of 40 CFR 51.905(a)(3)
with regard to removal of 1-hour NSR requirements in 1997 8-hour ozone
NAAQS attainment areas. EPA is not proposing to change its treatment of
such areas. As explained previously, 51.905(a)(3) allows 1997 8-hour
NAAQS attainment areas, that were designated nonattainment for the 1-
hour standard at the time of their attainment designation for the 8-
hour standard, to request that the 1-hour nonattainment NSR provisions
be removed from the SIP. (We note that EPA's practice since the
revocation of the 1-hour standard has also been to allow 1997 8-hour
ozone NAAQS nonattainment areas, that were designated nonattainment for
the 1-hour standard at the time of their 8-hour nonattainment
designation, to request that the 1-hour nonattainment NSR requirements
be removed from their SIPs upon redesignation of the area to attainment
of the 1997 8-hour NAAQS.) In lieu of nonattainment NSR, these areas,
with the exception of those located in the Ozone Transport Region
(OTR), are subject to prevention of significant deterioration (PSD)
program requirements based on their 8-hour attainment designation or
redesignation. For areas that are located in the OTR, ozone
nonattainment NSR requirements associated with the moderate
nonattainment classification apply regardless of an area's designation.
In the South Coast litigation, the petitioners' briefs
characterized the Phase 1 Rule as removing ``requirements to control
pollution from new and modified stationary sources in nonattainment
areas.'' Opening Brief of Environmental Petitioners and South Coast Air
Quality Management District at 17 (emphasis added); see also Brief for
the Commonwealth of Massachusetts et al. at 14. Thus, the issue before
the Court was whether EPA had acted unlawfully by ``permitting 8-hour
nonattainment areas to only meet weaker requirements under their 8-hour
classifications.'' Opening Brief of Environmental Petitioners and South
Coast Air Quality Management District at 20. The Court distinguished
the South Coast decision from the decision in Greenbaum v. EPA, 370
F.3d 527 (6th Cir. 2004) in part because ``Greenbaum involved a
different ultimate question, namely, whether NSR is required for
attainment areas.'' 472 F.3d. at 902. As the Court noted, ``NSR is a
permitting process that restricts major modifications and new
construction based on an area's air-quality classification * * *. As
relevant, NSR requires major facilities to include technology
consistent with the lowest achievable emissions rate (``LAER'') and to
offset any increased emissions with greater reductions elsewhere.'' 472
F.3d. at 900. The Court stated that ``EPA decided that 1-hour NSR
requirements are no longer required under the Act and that areas should
be constrained only by the NSR requirements for their eight-hour
classification * * *. This marked a change from its 2003 notice of
proposed rulemaking, in which EPA indicated that `the major source
applicability cut-offs and offset ratios continue to apply to the
extent that the area has a higher classification for the 1-hour
standard than for the 8-hour standard.' '' 472 F.3d. at 901. The Court
stated that the result of the change from the 2003 proposal to the
approach adopted in the final Phase 1 Rule was ``to subject fewer areas
to LAER and to offset requirements that themselves are weakened.''
Thus, the issue before the Court involved the substitution of one set
of nonattainment NSR requirements for another, and not the replacement
of nonattainment NSR with a PSD program in areas attaining the current
NAAQS.
EPA has determined that 1-hour nonattainment major NSR should not
apply to areas designated attainment for the 1997 8-hour standard,
regardless of the area's designation for the 1-hour standard at the
time of designation for the 8-hour standard. The interpretation that
NSR does not apply to areas designated attainment for a NAAQS and thus
is not needed in the SIP for such an area is consistent with Greenbaum
v. EPA, 370 F.3rd 527, at 536 (``It would make little sense for [NSR]
to be included in the post-attainment SIP, as the Clean Air Act * * *
explicitly states that attainment area SIPs must include a PSD
program.''). As the DC Circuit held in Alabama Power, 636 F.3d 323, at
365 (DC Cir. 1979), the applicability of PSD is geographically limited
by the language of CAA section 165(a), which states that unless
specified conditions are met, ``[n]o major emitting facility * * * may
be constructed in any area to which this part [Part C] applies''
(emphasis added). Thus, with respect to ozone, areas designated
attainment for the 1997 8-hour standard are subject to section 165(a)
but not to the section 172(c)(5) SIP requirement. For this reason, EPA
is not requiring that areas designated attainment for the 1997 8-hour
standard retain 1-hour NSR provisions. Instead, 8-hour attainment areas
may request that 1-hour nonattainment NSR provisions be removed from
their SIPs, with PSD taking the place of the nonattainment NSR program
for ozone. For the same reason, as set forth below, EPA is proposing to
revise the regulations to clarify that this treatment also applies to
areas that are redesignated to attainment for the 1997 8-hour standard.
2. Treatment of Areas Designated Nonattainment for Both 1-Hour and 8-
Hour Ozone NAAQS
Although the Court in South Coast determined that 1-hour
nonattainment NSR must be retained as an anti-backsliding measure in
1997 8-hour nonattainment areas that were designated nonattainment for
the 1-hour standard at the time of the 8-hour designations, the Court
did not specifically address how long such requirements must remain in
place. In our Phase 1 Rule, we linked removal of the 1-hour
requirements retained as ``applicable requirements'' to attainment of
the 8-hour NAAQS. The rule at Sec. 51.905(b) provides that an 8-hour
nonattainment area will remain subject to the 13 applicable
requirements listed in Sec. 51.900(f) until it attains the 8-hour
standard. Section 51.905(b) further provides that after an area attains
the 8-hour standard, the State may request that the 1-hour obligations
be shifted to contingency measures, but may not remove them completely
from the SIP. The preamble to the Phase 1 Rule clarified that, ``it is
appropriate to maintain these mandated controls to remain as part of
the implemented SIP until an area attains the 8-hour NAAQS and is
redesignated to attainment.'' (69 FR 23983).
In deciding how to adopt regulatory text consistent with the South
Coast decision, we do not believe it is appropriate to add the 1-hour
nonattainment NSR obligation to the list of applicable requirements in
Sec. 51.900(f) because we do not believe it should remain in the SIP
as a contingency measure after redesignation for the 8-hour standard.
Consistent with Greenbaum v. EPA, 370 F.3rd 527, 536, nonattainment
major NSR requirements are no longer a necessary SIP element once an
area is redesignated to attainment for a NAAQS. Upon redesignation to
attainment, the PSD program requirements would apply to
[[Page 51965]]
the area.\8\ Therefore, nonattainment major NSR requirements may be
removed from the SIP, and do not need to be retained as contingency
measures for a NAAQS.
---------------------------------------------------------------------------
\8\ The one exception to this is that all areas located in the
Ozone Transport Region, including those designated attainment, are
subject to the obligation to have a nonattainment NSR program.
---------------------------------------------------------------------------
In lieu of adding 1-hour major NSR to the Sec. 51.900(f) list of
applicable requirements, we are proposing to add a new Sec. 51.905(g)
and an analogous new Section VII in Appendix S. The new sections
clarify the obligation for any 1997 8-hour nonattainment area with a 1-
hour nonattainment designation as of the effective date of designation
for the 8-hour standard (June 15, 2004 for most areas) to continue to
apply 1-hour nonattainment NSR requirements consistent with the area's
1-hour classification, as listed in 40 CFR part 81 subpart C.
Although we are not proposing to add NSR to the list of applicable
requirements in 51.900(f), we are proposing that, as with those
requirements, 1-hour NSR requirements continue to be required SIP
elements until redesignation to attainment of the 1997 8-hour ozone
NAAQS.\9\ Under EPA's proposed revision set forth above, the 1-hour
major NSR requirements may be removed only after an area has attained
and been redesignated for the 1997 8-hour NAAQS. Under this approach,
the 1-hour NSR requirements would be treated in a manner similar to the
13 applicable requirements listed at Sec. 51.900(f), except that the
State would not be required to retain the 1-hour NSR requirements as
contingency measures. Instead, PSD would apply upon redesignation to
attainment for the 1997 8-hour standard, and 1-hour NSR requirements
could be removed entirely from the SIP.
---------------------------------------------------------------------------
\9\ We note that although the regulatory text provides that the
requirements of section 51.900(f) apply until an area ``attains''
the 8-hour ozone NAAQS, the accompanying preamble text clarifies
that these requirements apply until an area is redesignated as
attainment for the 1997 8-hour ozone NAAQS. 69 FR 23982-83.
---------------------------------------------------------------------------
As set forth in section III.B.2.b., we are also requesting comment
on a separate and additional basis--attainment of the 1-hour ozone
NAAQS (plus specified criteria)--for allowing States to remove 1-hour
NSR requirements. This opportunity to remove 1-hour NSR requirements
from the approved SIP would be in addition to the approach of allowing
States to remove 1-hour NSR upon redesignation to attainment for the 8-
hour NAAQS. Under this additional approach, where an area attains the
1-hour standard and meets certain other conditions (as determined by
EPA, in a rulemaking described below) but is still violating the 8-hour
standard, the State would be permitted, but not required, to remove the
1-hour nonattainment NSR requirements and apply the NSR requirements
associated with the 8-hour classification.
We note that neither EPA's proposal nor the separate, additional
approach to removal would have any effect on any source permit
conditions established during the time period the 1-hour major NSR
program applied. The NSR regulations do not provide a mechanism for
major NSR permit conditions established under the 1-hour standard to be
removed from a permit or modified when a SIP is later revised to remove
the 1-hour NSR thresholds and offset requirements. Replacement or
removal of NSR SIP provisions does not relieve sources of their
obligations under previously established permit conditions.
In addition, we note that this proposal to allow removal of the 1-
hour major NSR requirements after an area has attained and been
redesignated for the 1997 8-hour NAAQS could be affected by the
transition to a newer ozone standard.
a. Rationale for Removal of 1-Hour NSR Upon Redesignation to Attainment
of 8-Hour NAAQS
We are proposing to require areas to retain 1-hour major NSR
requirements until the area attains and is redesignated for the 1997
ozone 8-hour standard, regardless of when, if ever, the area attains
the 1-hour standard. The rationale for this approach, as set forth in
the June 2, 2003, Proposed Rule to Implement the 8-Hour Ozone National
Ambient Air Quality Standard (68 FR 32824), was that the 1997 8-hour
standard was the standard that EPA determined would protect public
health and the environment. We adopted this approach for the 13 listed
applicable requirements in Sec. 51.900(f), as discussed in the final
Phase 1 Rule (69 FR 23982-83). We believe this rationale also applies
to NSR. As stated in the Phase 1 Rule, Congress contemplated that
States implement certain requirements mandated under Subpart 2,
including specific NSR thresholds and offsets. Once an area
demonstrates that it has met and can maintain the more health
protective standard (the 1997 8-hour NAAQS), it would be appropriate to
remove 1-hour NSR requirements. In addition, adopting this approach for
NSR would result in similar treatment of NSR and the applicable
requirements in Sec. 51.900(f), the only difference being that States
would not need to include nonattainment NSR as a contingency measure.
We believe it is appropriate to treat NSR in a manner consistent with
the Sec. 51.900(f) applicable requirements. While we are taking
comment on the possibility of allowing States to remove NSR earlier
than the other requirements in some instances (see discussion below on
the additional basis), we do not plan to finalize that approach unless
we are persuaded that NSR is sufficiently different from the applicable
requirements identified in 51.900(f) to warrant different treatment.
EPA's proposed approach aligns with EPA's current practice
regarding areas that were initially designated as attainment for the
1997 8-hour NAAQS or have been redesignated to attainment for the 1997
8-hour ozone NAAQS. As noted above, EPA's current practice is to allow
areas to revise their SIPs to remove the 1-hour NSR requirements. This
approach harmonizes the treatment of areas initially designated as 8-
hour attainment and nonattainment areas that are redesignated to
attainment for the 8-hour standard. In lieu of nonattainment NSR, these
areas become subject to PSD programs based on their 8-hour attainment
designation or redesignation.
Additionally, we propose adding language to the CFR to clarify
applicability of section 181(b)(4)(B) for areas not attaining the
NAAQS. Notwithstanding revocation of earlier ozone NAAQS, States with
areas designated nonattainment for earlier ozone NAAQS, and classified
as severe or extreme for such standards as provided in 40 CFR part 81,
remain subject to the obligation to adopt programs under sections
181(b)(4) of the CAA. Section 181(b)(4)(B) specifies applicability of
NSR per requirements for extreme areas for specific instances of
failure to meet attainment schedules.
b. Supplemental Proposal: Removal of 1-Hour NSR Upon Attainment of 1-
Hour NAAQS and Determination of Eligibility To Remove NSR Requirements
(1) Attainment of 1-Hour NAAQS and Related Criteria
We are requesting comment on an additional approach that would
allow States to remove the 1-hour NSR requirements upon attainment of
the 1-hour ozone NAAQS and satisfaction of other criteria discussed
below in section ii. After notice and comment rulemaking, EPA would
make a determination that the area has attained the 1-hour standard and
met the additional requisite criteria. This would serve as a
``determination of eligibility to remove 1-hour NSR requirements.'' An
area that receives such a determination
[[Page 51966]]
would still be required to implement the nonattainment NSR requirements
associated with its 8-hour classification.
In our 2003 proposed rule, we took comment on the option of
allowing 1-hour obligations to be removed upon attaining the level of
the 1-hour standard. We noted that the rationale for allowing 1-hour
obligations to be removed upon attaining the level of the 1-hour
standard was that ``Congress intended an area to continue to implement
these obligations until it attained the 1-hour standard, at which time
the area would be able to discontinue implementation upon a showing of
continued maintenance'' (68 FR 32824, June 2, 2003). While we did not
finalize this option for the Sec. 51.900(f) applicable requirements,
we are requesting comment on whether we should adopt a variant of it
for NSR, and whether doing so would be consistent with the CAA and the
South Coast decision. In the final Phase 1 Rule, EPA decided that
attaining the 1-hour standard would not be a basis for allowing States
to remove from the SIP the 13 applicable requirements related to 1-hour
nonattainment identified at 51.900(f). The question is whether NSR
thresholds and offsets are more closely linked to a particular standard
than the 13 requirements listed in 51.900(f), and thus might be removed
following a determination of attainment of that standard, coupled with
other safeguards.
As noted above in the discussions of 8-hour attainment areas and
whether NSR requirements should become a contingency measure in a
maintenance plan attainment SIP, Congress clearly intended that
nonattainment major NSR was required only until the area was
redesignated to attainment. After that point, nonattainment major NSR
for that area would normally be superseded by the PSD program, whose
purpose is ``to protect public health and welfare from any actual or
potential adverse effect which in the Administrator's judgment may
reasonably be anticipated to occur * * * notwithstanding attainment and
maintenance.'' 42 U.S.C. 7470. In the case of areas that remain
nonattainment for the 8-hour standard after attaining the 1-hour
standard, however, the 8-hour major NSR requirements would apply rather
than PSD. Thus, the concern regarding the retention of nonattainment
major NSR requirements in an attainment SIP is not present here.
We are interested in comments addressing whether 1-hour NSR is
sufficiently different from the applicable requirements identified in
the Phase 1 Rule that we should allow States to remove it from their
SIPs prior to redesignation for the 1997 8-hour ozone standard.
(2). Defining ``Eligibility To Remove NSR Requirements'' Associated
With the Revoked 1-Hour Standard
In this section, we address which requirements, in addition to
attainment for the 1-hour ozone standard, the Supplemental Option would
impose on an area seeking to remove from its SIP 1-hour NSR
requirements prior to redesignation for the 1997 8-hour standard. In
the Phase 1 Rule, we stated that upon revocation of the 1-hour
standard, EPA was no longer obligated to determine whether an area had
attained that standard. However, under this supplemental approach, we
are proposing that a determination by EPA that an area has attained the
1-hour standard would be among the criteria for issuance of a
determination of eligibility to remove 1-hour NSR obligations. Prior to
the time that the 1-hour standard was revoked, a change in an ozone
nonattainment area's designation status required that the area satisfy
the criteria in section 107(d)(3)(E) of the CAA. These criteria
include: (i) A finding of attainment of the 1-hour standard based upon
the most recent three consecutive years of complete, quality assured
air quality data; (ii) the applicable implementation plan for the area
under section 110(k) has been fully approved by the Administrator;
(iii) the improvement in air quality leading to attainment of the 1-
hour NAAQS is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable implementation plan and
Federal air pollutant control regulations and other permanent and
enforceable reductions; (iv) the Administrator has fully approved a
maintenance plan for the area as meeting the requirements of section
175A; and (v) the State containing such area has met all requirements
applicable to the area under CAA section 110 and part D that pertain to
the 1-hour ozone standard.
Under this alternative, additional approach, we are taking comment
on which of the five criteria that would have applied for purposes of
redesignating an area for the 1-hour standard should apply for
declaring that an area has attained the 1-hour standard and is eligible
to remove 1-hour NSR requirements.
Under EPA's supplemental option, removal of the 1-hour requirements
would be permitted upon a determination of eligibility to remove NSR
requirements. To remove such programs, States would need to submit a
revision to their SIP, subject to the provisions of section 110(l)
which states that EPA may not approve a SIP revision ``if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress (as defined in section 171), or any
other applicable requirement of the Act.''
In our Phase 1 Rule, which was vacated by the Court, we concluded
that a State's removal of 1-hour NSR requirements would not interfere
with 8-hour attainment or reasonable further progress. However, upon
additional consideration we now believe that we do not currently have
adequate data on the extent to which States may be relying on
particular major NSR thresholds and offset ratios for the growth
projections contained in their 8-hour attainment plans. Therefore, we
are not proposing an advance section 110(l) determination as part of
this action. We believe a case-by-case approach to section 110(l) under
the supplemental option detailed in this proposal will ensure that any
SIP changes upon a determination of eligibility to remove NSR
requirements for the 1-hour ozone NAAQS would not interfere with
reasonable further progress towards attainment of the 8-hour ozone
NAAQS.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a significant regulatory action because it raises novel legal
or policy issues arising out of legal mandates. Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This action sets forth EPA's proposed rule for addressing portions of
the partial vacatur of EPA's Phase 1 Rule for implementation of the
1997 8-Hour ozone NAAQS. However, OMB has previously approved the
information collection requirements contained in the existing Phase 1
Rule (April 30, 2004; 69 FR 23951) and the Phase 2 Rule (November 29,
2005; 70 FR 71612) under the provisions of the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. and has assigned OMB Control Number 2060-0594.
The OMB control numbers
[[Page 51967]]
for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of any regulation subject
to notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the Agency certifies the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) regulations at 13 CFR part 201; (2) a small
government jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impact of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities.
Rather, we are issuing this rule to give additional clarity to States
on the transition from 1-hour to 8-hour major NSR requirements. We
continue to be interested in the potential impacts of the proposed rule
on small entities and welcome comments on issues related to such
impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (URMA), 2 U.S.C.
1531-1538 for State, local, and Tribal governments and the private
sector. The action imposes no enforceable duty on any State, local or
Tribal governments or the private sector. Therefore, this action is
subject to the requirements of section 202 and 205 of the UMRA.
This action is also not subject to the requirements of section 203
of UMRA because is contains no regulatory requirements that might
significantly or uniquely affect small governments. This action
proposes to revise the rule for implementing the 1997 8-hour ozone
NAAQS to address how nonattainment major NSR requirements associated
with the former 1-hour ozone NAAQS should apply under the anti-
backsliding provisions of the implementation rule. Also proposed is a
framework for allowing States to remove and/or no longer implement the
1-hour major NSR requirements when certain prescribed conditions are
met. This proposed rule responds to the ruling by the U.S. Court of
Appeals for the District of Columbia Circuit that the 1-hour major NSR
program, as it applies to areas that failed to attain the 1-hour
standard by the required date, is a required control to prevent
backsliding.
E. Executive Order 13132--Federalism
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This action sets forth EPA's
proposed rule for addressing portions of the partial vacatur of EPA's
Phase 1 Rule for implementation of the 1997 8-Hour ozone NAAQS. Thus,
Executive Order 13132 does not apply to this proposed rule.
In the spirit of Executive Order 13121 and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comments on this proposed rule
from State and local officials.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). It does not have
a substantial direct effect on one or more Indian Tribes, since no
Tribe has to develop a SIP under this proposal. Furthermore, this
proposed rule does not affect the relationship or distribution of power
and responsibilities between the Federal Government and Indian Tribes.
The CAA and the Tribal Air Rule establish the relationship of the
Federal Government and Tribes in developing plans to attain the NAAQS,
and these proposed revisions to the regulations do nothing to modify
that relationship. Thus, Executive Order 13175 does not apply to this
action.
EPA specifically solicits additional comment on the proposed rule
from Tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in Executive Order 12866, and because the agency does not believe the
environmental health or safety risks addressed by this action present a
disproportional risk to children. This action sets forth EPA's proposed
rule for addressing portions of the partial vacatur of EPA's Phase 1
Rule for implementation of the 1997 8-Hour ozone NAAQS. The public is
invited to submit comments or identify peer-reviewed studies and data
that assess effects of this proposed action.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. This action sets
forth EPA's proposed rule for addressing portions of the partial
vacatur of EPA's Phase 1 Rule for implementation of the 1997 8-Hour
ozone NAAQS.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rule does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
[[Page 51968]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The proposed revisions implement a previously promulgated
health-based Federal standard (the 8-hour ozone NAAQS) that is designed
to protect all segments of the general population. As such, they do not
adversely affect the health or safety of minority or low income
populations and are designed to protect and enhance the health and
safety of these and other populations.
K. Determination Under Section 307(d)
Pursuant to section 307(d)(1)(V) of the CAA, the Administrator
determines that this action is subject to the provisions of section
307(d). Section 307(d)(1)(V) provides that the provisions of section
307(d) apply to ``such other actions as the Administrator may
determine.''
List of Subjects in 40 CFR Part 51
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Transportation, Volatile organic compounds.
Dated: August 18, 2010.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401- 7671q.
2. Section 51.905 is amended by revising paragraph (a)(3)(i), and
by adding a new paragraph (g) to read as follows:
Sec. 51.905 How do areas transition from the 1-hour NAAQS to the 8-
hour NAAQS and what are the anti-backsliding provisions?
(a) * * *
(3) * * *
(i) Obligations in an approved SIP. For an area that is designated
8-hour NAAQS attainment/1-hour NAAQS nonattainment, the State may
request that obligations under the applicable requirements of Sec.
51.900(f) be shifted to contingency measures, consistent with sections
110(l) and 193 of the CAA, after revocation of the 1-hour NAAQS;
however, the State cannot remove the obligations from the SIP. For such
areas, the State may request that the nonattainment major NSR
provisions that applied based on the area's designation and
classification under the 1-hour NAAQS be removed from the SIP on or
after the date of revocation of the 1-hour NAAQS and need not be
shifted to contingency measures.
* * * * *
(g) What other requirements for the 1-hour standard apply? (1) The
requirements for nonattainment new source review that applied pursuant
to sections 172(c)(5), 173, and 182 of the Clean Air Act based on the
area's classification under the 1-hour NAAQS continue to be required
elements of an approvable implementation plan for any ozone
nonattainment area that was designated nonattainment for the 1-hour
NAAQS at the time of designation as ozone nonattainment for the 8-hour
NAAQS. Notwithstanding the revocation of the 1-hour NAAQS, the
designation and classification of the area for the 1-hour standard as
provided in 40 CFR Part 81 shall apply for determining the applicable
1-hour NSR obligation for an area. These requirements remain required
elements of the implementation plan until such time as the area is
redesignated to attainment for the 1997 8-hour attainment area for the
ozone NAAQS pursuant to Clean Air Act section 107(d)(3)(E).
(2) Notwithstanding revocation of the 1-hour ozone NAAQS, States
with areas designated nonattainment for the 1-hour ozone NAAQS and
classified as severe or extreme for that standard as provided in 40 CFR
Part 81 remain subject to the obligation to adopt programs under
sections 181(b)(4) of the CAA for the 1-hour ozone