Air Quality Designations for the 2010 Primary Nitrogen Dioxide (NO2

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This rule establishes air quality designations for all areas in the United States for the 2010 Primary Nitrogen Dioxide (NO₂) National Ambient Air Quality Standards (NAAQS). Based on air quality monitoring data, the EPA is issuing this rule to designate all areas of the country as “unclassifiable/attainment” for the 2010 NO₂ NAAQS. The EPA is designating areas as “unclassifiable/attainment” to mean that available information does not indicate that the air quality in these areas exceeds the 2010 NO₂ NAAQS.

DATES:

The effective date of this rule is February 29, 2012.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2011-0572. All documents in the docket are listed in the index at http://www.regulations.gov. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (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 the docket or in hard copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Office of Air and Radiation Docket and Information Center is (202) 566-1742.

In addition, the EPA has established a Web site for this rulemaking at: http://www.epa.gov/air/nitrogenoxides/designations. The Web site includes the EPA's final state and tribal designations, as well as state initial recommendation letters, the EPA modification letters, technical support documents, responses to comments and other related technical information.

FOR FURTHER INFORMATION CONTACT:

Doug Solomon, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919) 541-4132 or by email at: solomon.douglas@epa.gov; or Rhea Jones, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919) 541-2940 or by email at: jones.rhea@epa.gov.

SUPPLEMENTARY INFORMATION:

Regional Office Contacts

Region I—Alison Simcox (617) 918-1684,

Region II—Kenneth Fradkin (212) 637-3702,

Region III—Maria Pino (215) 814-2181,

Region IV—Steve Scofield (404) 562-9034,

Region V—John Summerhays (312) 886-6067,

Region VI—Joe Kordzi (214) 665-7186,

Region VII—Amy Algoe-Eakin (913) 551-7942,

Region VIII—Catherine Roberts (303) 312-6025,

Region IX—Eleanor Kaplan (415) 972-4147,

Region X—Krishna Viswanathan (206) 553-2684.

The public may inspect the rule and state-specific technical support information at the following locations:

Table of Contents

The following is an outline of the Preamble.

I. Preamble Glossary of Terms and Acronyms

II. What is the purpose of this action?

III. What is nitrogen dioxide?

IV. What are the health concerns addressed by the NO₂ standards?

V. What are the CAA requirements for air quality designations and what action has EPA taken to meet these requirements?

VI. What guidance did the EPA issue and how did the EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries?

VII. Comments

VIII. Implications of Designations for Compliance With PSD Increments for NO₂

IX. What air quality data has EPA used?

X. How do designations affect Indian country?

XI. Where can I find information forming the basis for this rule and exchanges between EPA, states, and tribes related to this rule?

XII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulations and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

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

K. Congressional Review Act

L. Judicial Review

I. Preamble Glossary of Terms and Acronyms

The following are abbreviations of terms used in the preamble.

APA Administrative Procedure Act

AQS Air Quality System

CAA Clean Air Act

CBI Confidential Business Information

CFR Code of Federal Regulations

DC District of Columbia

EPA Environmental Protection Agency

FR Federal Register

FRM Federal Reference Method

NAAQS National Ambient Air Quality Standards

NO₂ Nitrogen Dioxide

NTTAA National Technology Transfer and Advancement Act

OMB Office of Management and Budget

PSD Prevention of Significant Deterioration

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

SBA Small Business Administration

SIP State Implementation Plan

UMRA Unfunded Mandates Reform Act of 1995

TAR Tribal Authority Rule

TSD Technical Support Document

TPY Tons Per Year

U.S. United States

VCS Voluntary Consensus Standards

II. What is the purpose of this action?

The purpose of this action is to promulgate and announce initial area designations for all areas of the country for the 2010 NO₂ NAAQS based on available information, in accordance with the requirements of the Clean Air Act (CAA). The list of all areas being designated in each state, and the boundaries of each area, appear in the tables at the end of this final rule. The EPA has been working closely with the states involved in these designations and several steps have been taken to announce that this rule is available. The EPA has posted the notice on several EPA Web sites.

This notice identifies all areas of the United States (U.S.) as being designated as “unclassifiable/attainment” for the 2010 NO₂ NAAQS. The basis for designating these areas as “unclassifiable/attainment” is monitored air quality data from calendar years 2008-2010 indicating no violations of the NAAQS.

The EPA and state agencies are currently working to establish an expanded network of NO₂ monitors, expected to be deployed in 2013. Once 3 years of air quality data have been collected from the expanded network, the EPA will be able to evaluate NO₂ air quality in additional locations.

III. What is nitrogen dioxide?

NO₂ is a reddish-brown, highly reactive gas that is formed in the ambient air through the oxidation of nitric oxide (NO). Nitrogen oxides (NO_X) is the term used to describe the sum of NO, NO₂, and other oxides of nitrogen. A variety of NO_X compounds and their transformation products occur both naturally and as a result of human activities. Anthropogenic (i.e., manmade) emissions of NO_X account for a large majority of all nitrogen inputs to the environment. The major sources of anthropogenic NO_X emissions are high-temperature combustion processes, such as those occurring in automobiles and power plants. Most NO_X from combustion sources (about 95 percent) are emitted as NO, which is readily converted to NO₂ in the environment; the remainder is emitted largely as NO₂. Natural sources of NO_X are lightning, biological and abiological processes in soil, and stratospheric intrusion.

IV. What are the health concerns addressed by the NO₂ standards?

Current scientific evidence links short-term NO₂ exposures, ranging from 30 minutes to 24 hours, with an array of adverse respiratory effects including increased asthma symptoms, more difficulty controlling asthma, and an increase in respiratory illnesses and symptoms. Studies also show a connection between short-term exposure and increased visits to emergency departments and hospital admissions for respiratory illnesses, particularly in populations including children, the elderly, and asthmatics.

The EPA's NAAQS for NO₂ is designed to protect against exposure to the entire group of NO_X. NO₂ is the component of greatest concern and is used as the indicator for the larger group of NO_X. (See 75 FR 6474.)

V. What are the CAA requirements for air quality designations and what action has the EPA taken to meet these requirements?

After the promulgation of a new or revised NAAQS, the EPA is required to designate areas as nonattainment, attainment, or unclassifiable, pursuant to section 107(d)(1) of the CAA. The Administrator signed a final rule revising the NO₂ NAAQS on January 22, 2010, which was published in the Federal Register on February 9, 2010, and became effective April 12, 2010. Based on the Administrator's review of the scientific evidence, including numerous studies published since the last review of the NO₂ NAAQS, and taking into consideration the comments expressed by the Clean Air Scientific Advisory Committee and the public, the Administrator set a new 1-hour NO₂ standard at the level of 100 parts per billion (ppb). In addition to establishing an averaging time and level, the Administrator also set a new form for the standard. The form for the 1-hour NO₂ standard is the 3-year average of the 98th percentile of the annual distribution of daily maximum 1-hour average concentrations. The rule also retained, with no change, the current annual average NO₂ standard of 53 ppb.

The rule also set new requirements for the placement of NO₂ monitors. The EPA and state agencies are currently working to establish an expanded network of NO₂ monitors, expected to be deployed in 2013. NO₂ concentrations near major roads are appreciably higher than those measured at monitors in the current network. Monitoring studies indicate that near-road (within about 50 meters) concentrations of NO₂ can be 30 to 100 percent higher than concentrations away from major roads.

The CAA requires the EPA to complete the initial area designation process within 2 years of promulgating a new or revised NAAQS. However, if the Administrator has insufficient information to make these designations within that time frame, the EPA has the authority to extend the designation process by up to 1 additional year.

By not later than 1 year after the promulgation of a new or revised NAAQS, each state governor is required to recommend air quality designations, including the appropriate boundaries for areas, to the EPA. The EPA reviews those state recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term “necessary,” but the EPA interprets this to authorize the Administrator to modify designations that did not meet the statutory requirements or were otherwise inconsistent with the facts or analysis deemed appropriate by the EPA. If the EPA is considering modifications to a state's initial recommendation, the EPA is required to notify the state of any such intended modifications to its recommendation not less than 120 days prior to the EPA's promulgation of the final designation. If the state does not agree with the EPA's intended modification, it then has an opportunity to respond to the EPA and to demonstrate why it believes the modification proposed by the EPA is inappropriate. Even if a state fails to provide any recommendation for an area, in whole or in part, the EPA still must promulgate a designation that the Administrator deems appropriate.

Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as any area that does not meet an ambient air quality standard or that is contributing to ambient air quality in a nearby area that does not meet the standard. If an area meets either prong of this definition, then the EPA is obligated to designate the area as “nonattainment.” Section 107(d)(1)(A)(iii) provides that any area that the EPA cannot designate on the basis of available information as meeting or not meeting the standards should be designated as “unclassifiable.”

The EPA believes that section 107(d) provides the agency with discretion to determine how best to interpret the terms in the definition of a nonattainment area (e.g., “contributes to” and “nearby”) for a new or revised NAAQS, given considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the standards for the pollutant, and other relevant information. In particular, the EPA believes that the statute does not require the agency to establish bright line tests or thresholds for what constitutes “contribution” or “nearby” for purposes of designations.

Similarly, the EPA believes that the statute permits the EPA to evaluate the appropriate application of the term “area” to include geographic areas based upon full or partial county boundaries, and contiguous or non-contiguous areas, as may be appropriate for a particular NAAQS. For example, section 107(d)(1)(B)(ii) explicitly provides that the EPA can make modifications to designation recommendations for an area “or portions thereof,” and, under section 107(d)(1)(B)(iv), a designation remains in effect for an area “or portion thereof” until the EPA redesignates it.

Designation activities for federally-recognized tribes are covered under the authority of section 301(d) of the CAA. This provision of the CAA authorizes the EPA to treat eligible tribes in a similar manner as states. Pursuant to section 301(d)(2), we promulgated regulations, known as the Tribal Authority Rule (TAR), on February 12, 1999. See 63 FR 7254, codified at 40 CFR 49 (1999). That rule specifies those provisions of the CAA for which it is appropriate to treat tribes in a similar manner as states. Under the TAR, tribes may choose to develop and implement their own CAA programs, but are not required to do so. The TAR also establishes procedures and criteria by which tribes may request from the EPA a determination of eligibility for such treatment. The designations process contained in section 107(d) of the CAA is included among those provisions determined to be appropriate by the EPA for treatment of tribes in the same manner as states. Under the TAR, tribes generally are not subject to the same submission schedules imposed by the CAA on states. As authorized by the TAR, tribes may seek eligibility to submit designation recommendations to the EPA. In addition, CAA section 301(d)(4) gives the EPA discretionary authority, in cases where it determines that treatment of tribes as identical to states is “inappropriate or administratively infeasible,” to provide for direct administration by regulation to achieve the appropriate purpose.

Designation recommendations and supporting documentation for the NO₂ NAAQS were submitted by most states and a few tribes to the EPA by January 22, 2011. After receiving recommendations from states and tribes, and after reviewing and evaluating each recommendation, the EPA provided a response to the states and tribes on June 29, 2011. In these letter responses, we indicated whether the EPA intended to make modifications to the initial state or tribal recommendations and explained the EPA's reasons for making any such modifications. The EPA requested that states and tribes respond to any proposed EPA modifications by August 29, 2011. We received comments from some states suggesting changes to the EPA's proposed modifications and providing additional information. The EPA evaluated these comments, and, as a result, some of the final designations reflect further modifications to the initial state and tribal recommendations. The state and tribal letters, including the initial recommendations, the EPA's June 2011 responses to those letters, including any modifications, and the subsequent state and tribal comment letters are in the docket for this action.

Although not required by section 107(d) of the CAA, the EPA also provided an opportunity for members of the public to comment on the EPA's June 2011 response letters. In order to gather additional information for the EPA to consider before making final designations, EPA published a notice on July 7, 2011, (76 FR 39798) which invited the public to comment on the EPA's intended designations. In that notice, the EPA provided the opportunity to all interested parties other than states and tribes to submit comments by August 8, 2011. State and tribal initial recommendations and EPA's responses, including modifications, were posted on a publically accessible Web site ( http://www.epa.gov/airquality/nitrogenoxides/designations/index.html ). Comments from the public and EPA's responses to comments are in the docket for this action.

VI. What guidance did the EPA issue and how did the EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries?

In the notice of proposed rulemaking for the revised NO₂ NAAQS (73 FR 29184), the EPA issued proposed guidance, on its approach to implementing the standard, including its approach to initial area designations. The EPA solicited comment on that guidance and, in the notice of final rulemaking (75 FR 6475), adopted guidance concerning how to designate areas for the NO₂ NAAQS. In that guidance the EPA recommended that monitoring data using the 3 most recent years of quality-assured air quality data from the current monitoring network, which would be for the years 2008-2010, be used to identify violations of the NO₂ NAAQS. The EPA is basing these final designations on monitored NO₂ concentrations from Federal Reference Method (FRM) monitors from calendar years 2008-2010.

In the guidance, the EPA stated that in the event that a current NO₂ monitor indicates a violation of the revised standards, the EPA intends to designate such areas “nonattainment” no later than 2 years following promulgation of the revised standards. The EPA also stated that it intends to designate the rest of the country as “unclassifiable” for the revised NO₂ NAAQS until sufficient air quality data is collected from a near-roadway monitoring network. Once the near-roadway network is fully deployed and 3 years of air quality data are available, the EPA has authority under the CAA to redesignate areas as appropriate from “unclassifiable” to “attainment” or “nonattainment.” The EPA anticipates that sufficient data to conduct redesignations would be available after 2015.

In the EPA's June 2011 response letters to state and tribal recommendations, the EPA stated that in response to recommendations and review of the 2008-2010 monitored NO₂ concentrations, it intended to designate all areas of the U.S. as “unclassifiable/attainment.” The EPA uses this designation in practice for initial designations to mean that available information does not indicate that the air quality in these areas exceeds the 2010 NO₂ NAAQS.

VII. Comments

In the EPA's June 2011 response letters to state and tribal recommendations, the EPA recommended that states and tribes consider implications for the prevention of significant deterioration of air quality (PSD) program when proposing their boundaries. Several states responded by providing suggested changes to their recommended boundaries. The EPA has accepted these changes and has applied them in these final designations.

The EPA received comments from one state and one trade association, both indicating that the EPA should designate areas as “attainment” rather than “unclassifiable/attainment.”

The trade association commenter stated that a designation of “attainment” signifies the air is healthy while a designation of “unclassifiable” does not. The commenter acknowledges the concern that the current monitoring network is inadequate in many instances to determine if an area meets the 2010 NO₂ NAAQS. Nonetheless, the commenter believes a designation of “attainment” is appropriate where current monitoring shows no violations. The commenter acknowledges that redesignation to “nonattainment” would be appropriate if new monitors show violations of the 2010 NO₂ NAAQS.

The second comment, from a state, restated their recommendation that their entire state should be designated as “attainment.” In their comment, they provide 2007-2010 data from seven NO₂ monitors operated in the state. The commenter points out that no single year 98th percentile has exceeded 44 percent of the 2010 NO₂ NAAQS and design values have not exceeded 42 percent of the 2010 NO₂ NAAQS.

After considering state and public comments on the EPA's June 2011 response letters to state and tribal recommendations, the EPA is finalizing designations for all areas of the U.S. as “unclassifiable/attainment.” This designation is intended to indicate that for the purposes of initial area designations, available information does not indicate that air quality in these areas exceeds the NAAQS.

Although all existing community-based monitoring sites indicate attainment with the NO₂ NAAQS, the existing NO₂ monitoring network does not fully portray or represent the NO₂ concentrations near roadways. Until more complete information on NAAQS compliance is available, the EPA does not believe a designation of “attainment” is appropriate.

VIII. Implications of Designations for Compliance With PSD Increments for NO₂

The CAA's PSD requirements are designed to ensure that economic growth will occur in a manner consistent with preserving clean air in areas not currently violating the NAAQS (see CAA sections 160-169). In such areas, new or modified major sources of NO₂ must comply with maximum allowable increases (increments) in concentrations of NO_2. In some parts of the U.S., “baseline areas” have already been established for NO₂ increment analysis under the designations associated with the existing NO₂ annual NAAQS. The boundaries for such areas are not affected by the newly designated areas listed as “unclassifiable/attainment” for the 1-hour NO₂ NAAQS. In addition, any increment baseline areas created in the future for the annual NO₂ standard should be based on the existing designations that are associated with (and continue to apply to) the NO₂ annual NAAQS.

IX. What air quality data has the EPA used?

The final NO₂ designations contained in this action are based upon air quality monitoring data from calendar years 2008-2010.

X. How do designations affect Indian country?

All counties, partial counties or Air Quality Control Regions listed in the table at the end of this document are designated as indicated. There are no areas of Indian country being designated nonattainment at this time.

XI. Where can I find information forming the basis for this rule and exchanges between the EPA, states, and tribes related to this rule?

Information providing the basis for this action and related decisions are provided in the docket for this rulemaking. The applicable EPA guidance memoranda, and copies of correspondence regarding this process between the EPA and the states, tribes, and other parties are available for review at the EPA Docket Center listed above in the addresses section of this document and on our designation Web site at http://www.epa.gov/airquality/nitrogenoxides/designations/index.html. State-specific information is available from the EPA Regional Offices.

XII. Statutory and Executive Order Reviews

Upon promulgation of a new or revised NAAQS, the CAA requires the EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, the EPA assigns designations to areas as required.

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action will respond to the requirement to promulgate air quality designations after promulgation of a NAAQS. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This rule responds to the requirement to promulgate air quality designations after promulgation of a new or revised NAAQS. This requirement is prescribed in the CAA section 107. The present final rule does not establish any new information collection requirements.

C. Regulatory Flexibility Act

This final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice-and-comment requirements under the APA or any other statute because the rule is subject to CAA section 107(d)(2)(B), which does not require that the agency issue a notice of proposed rulemaking before issuing this rule.

D. Unfunded Mandates Reform Act

This action contains no federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. It does not create any additional requirements beyond those of the CAA and NO₂ NAAQS (40 CFR 50.11). The CAA establishes the process whereby states take primary responsibility in developing plans to meet the NO₂ NAAQS.

E. Executive Order 13132: Federalism

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the process whereby states take primary responsibility in developing plans to meet the NO₂ NAAQS. This rule will not modify the relationship of the states and the EPA for purposes of developing programs to implement the NO₂ NAAQS. Thus, Executive Order 13132 does not apply to this rule.

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

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule concerns the designation of areas for the 1-hour NO₂ NAAQS. The CAA provides for states and eligible tribes to develop plans to regulate emissions of air pollutants within their areas, as necessary, based on the designations. The TAR provides tribes the opportunity to apply for eligibility to develop and implement CAA programs such as programs to attain and maintain the NO₂ NAAQS, but it leaves to the discretion of the tribe the decision of whether to apply to develop these programs and which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes. It does not create any additional requirements beyond those of the NO₂ NAAQS (40 CFR section 50.11). This rule establishes the designation for certain areas of the country for the NO₂ NAAQS but no areas in Indian country are being designated nonattainment under this rule. Consequently, no tribe has any immediate requirement to implement a CAA program to attain the 1-hour NO₂ NAAQS in Indian Country at this time. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the TAR establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.

Although Executive Order 13175 does not apply to this action, the EPA communicated with tribal leaders and environmental staff regarding the designations process. The EPA also sent individualized letters to all federally recognized tribes to explain the designation process for the 2010 NO₂ NAAQS, to provide the EPA designations guidance, and to offer consultation with the EPA. The EPA provided further information to tribes through presentations at the National Tribal Forum and through participation in National Tribal Air Association conference calls. The EPA also sent individualized letters to all federally recognized tribes that submitted recommendations to the EPA about the EPA's intended designations for the NO₂ standards and offered tribal leaders the opportunity for consultation. These communications provided opportunities for tribes to voice concerns to the EPA about the general designations process for the NO₂ NAAQS, as well as concerns specific to a tribe, and informed the EPA about key tribal concerns regarding designations as the rule was under development.

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

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

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

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

Section 12(d) of the NTTAA of 1995, Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, the EPA did not consider the use of any VCS.

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

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the U.S.

The CAA requires that the EPA designate as nonattainment “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” By designating as nonattainment all areas where available information indicates a violation of the NO₂ NAAQS, this action protects all those residing, working, attending school, or otherwise present in those areas regardless of minority or economic status.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the U.S. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the U.S. prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective February 29, 2012.

L. Judicial Review

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

This rule designating areas for the 2010 NO₂ NAAQS is “nationally applicable” within the meaning of section 307(b)(1). This rule establishes designations for areas across the U.S. for the 2010 NO₂ NAAQS. At the core of this rulemaking is EPA's interpretation of the definition of nonattainment under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country.

For the same reasons, the Administrator also is determining that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this rulemaking extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the rule to be of “nationwide scope or effect” and for venue to be in the D.C. Circuit.

Thus, any petitions for review of final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

For the reasons set forth in the preamble, 40 CFR Part 81, is amended as follows:

PART 81—DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

Subpart C—Section 107 Attainment Status Designations

2. Section 81.301 is amended as follows:

a. By revising the table heading “Alabama—NO ₂” to read “Alabama—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Alabama—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

3. Section 81.302 is amended as follows:

a. By revising the table heading “Alaska—NO ₂” to read “Alaska—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Alaska—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

4. Section 81.303 is amended as follows:

a. By revising the table heading “Arizona—NO ₂” to read “Arizona—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Arizona—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

5. Section 81.304 is amended as follows:

a. By revising the table heading “Arkansas—NO ₂” to read “Arkansas—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Arkansas—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

6. Section 81.305 is amended as follows:

a. By revising the table heading “California—NO ₂” to read “California—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “California—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

7. Section 81.306 is amended as follows:

a. By revising the table heading “Colorado—NO ₂” to read “Colorado—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Colorado—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

8. Section 81.307 is amended as follows:

a. By revising the table heading “Connecticut—NO ₂” to read “Connecticut—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Connecticut—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

9. Section 81.308 is amended as follows:

a. By revising the table heading “Delaware—NO ₂” to read “Delaware—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Delaware—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

10. Section 81.309 is amended as follows:

a. By revising the table heading “District of Columbia—NO ₂” to read “District of Columbia—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “District of Columbia—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

11. Section 81.310 is amended as follows:

a. By revising the table heading “Florida—NO ₂” to read “Florida—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Florida—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

12. Section 81.311 is amended as follows:

a. By revising the table heading “Georgia—NO ₂” to read “Georgia—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Georgia—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

13. Section 81.312 is amended as follows:

a. By revising the table heading “Hawaii—NO ₂” to read “Hawaii—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Hawaii—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

14. Section 81.313 is amended as follows:

a. By revising the table heading “Idaho—NO ₂” to read “Idaho—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Idaho—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

15. Section 81.314 is amended as follows:

a. By revising the table heading “Illinois—NO ₂” to read “Illinois—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Illinois—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

16. Section 81.315 is amended as follows:

a. By revising the table heading “Indiana—NO ₂” to read “Indiana—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Indiana—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

17. Section 81.316 is amended as follows:

a. By revising the table heading “Iowa—NO ₂” to read “Iowa—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Iowa—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

18. Section 81.317 is amended as follows:

a. By revising the table heading “Kansas—NO ₂” to read “Kansas—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Kansas—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

19. Section 81.318 is amended as follows:

a. By revising the table heading “Kentucky—NO ₂” to read “Kentucky—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Kentucky—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

20. Section 81.319 is amended as follows:

a. By revising the table heading “Louisiana—NO ₂” to read “Louisiana—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Louisiana—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

21. Section 81.320 is amended as follows:

a. By revising the table heading “Maine—NO ₂” to read “Maine—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Maine—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

22. Section 81.321 is amended as follows:

a. By revising the table heading “Maryland—NO ₂” to read “Maryland—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Maryland—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

23. Section 81.322 is amended as follows:

a. By revising the table heading “Massachusetts—NO ₂” to read “Massachusetts—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Massachusetts—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

24. Section 81.323 is amended as follows:

a. By revising the table heading “Michigan—NO ₂” to read “Michigan—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Michigan—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

25. Section 81.324 is amended as follows:

a. By revising the table heading “Minnesota—NO ₂” to read “Minnesota—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Minnesota—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

26. Section 81.325 is amended as follows:

a. By revising the table heading “Mississippi—NO ₂” to read “Mississippi—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Mississippi—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

27. Section 81.326 is amended as follows:

a. By revising the table heading “Missouri—NO ₂” to read “Missouri—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Missouri—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

28. Section 81.327 is amended as follows:

a. By revising the table heading “Montana—NO ₂” to read “Montana—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Montana—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

29. Section 81.328 is amended as follows:

a. By revising the table heading “Nebraska—NO ₂” to read “Nebraska—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Nebraska—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

30. Section 81.329 is amended as follows:

a. By revising the table heading “Nevada—NO ₂” to read “Nevada—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “Nevada—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

31. Section 81.330 is amended as follows:

a. By revising the table heading “New Hampshire—NO ₂” to read “New Hampshire—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “New Hampshire—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

32. Section 81.331 is amended as follows:

a. By revising the table heading “New Jersey—NO ₂” to read “New Jersey—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “New Jersey—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

33. Section 81.332 is amended as follows:

a. By revising the table heading “New Mexico—NO ₂” to read “New Mexico—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “New Mexico—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows:

34. Section 81.333 is amended as follows:

a. By revising the table heading “New York—NO ₂” to read “New York—NO₂ (1971 Annual Standard).”

b. By adding a table entitled “New York—NO ₂ (2010 1-Hour Standard)” in alphabetical order to read as follows: