Final 8-Hour Ozone National Ambient Air Quality Standards Designations for the Early Action Compact Areas

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is designating 13 Early Action Compact (EAC) Areas as attainment for the 8-hour ozone National Ambient Air Quality Standard (NAAQS). The EAC areas agreed to reduce ground-level ozone pollution earlier than the Clean Air Act (CAA) required and to demonstrate attainment with the 8-hour ozone NAAQS by December 31, 2007. The States in which these 13 areas are located have submitted quality-assured data indicating that the areas are in attainment for the 8-hour ozone NAAQS based on ambient air monitoring data from 2005, 2006 and 2007. In addition, consistent with EPA's implementing regulations, the 1-hour ozone NAAQS will no longer apply in each of these areas one year after the effective date of the designation. We are modifying the 8-hour ozone NAAQS tables in the regulations to reflect the attainment designation for the 13 EAC areas and the 1-hour ozone NAAQS tables in the regulations to reflect that the 1-hour standard will no longer apply in these areas as of April 15, 2009. Additionally, we are modifying the 8-hour and 1-hour ozone NAAQS tables in the regulations to reflect the nonattainment designation for the Denver EAC area, which became effective November 20, 2007 and to reflect that the 1-hour standard will no longer apply in that area as of November 20, 2008.

DATES:

This rule is effective April 15, 2008.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2008-0006. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., 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 through www.regulations.gov or in hard copy at the Docket, EPA/DC, EPA West Building, EPA Headquarters Library, Room 3334, 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, 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 is (202) 566-1742. The Air and Radiation Docket Information Center's e-mail address is a-and-r-Docket@epa.gov, and Web address is: http://www.epa.gov/oar/docket.html . In addition, we have placed a copy of the rule and a variety of materials relevant to EAC areas on EPA's Web site at http://www.epa.gov/ttn/naaqs/ozone/eac/ .

FOR FURTHER INFORMATION CONTACT:

Ms. Barbara Driscoll, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919) 541-1051 or by e-mail at: driscoll.barbara@epa.gov or Mr. David Cole, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C304-05, Research Triangle Park, NC 27711, phone number (919) 541-5565 or by e-mail at: cole.david@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

This final action applies to the 13 EAC areas identified in section V, Table 1, below that have deferred designations for the 8-hour ozone NAAQS until April 15, 2008. Additionally, EPA is taking the ministerial action of revising the CFR to reflect the effective date of the nonattainment designation for the Denver EAC area, which was designated nonattainment on November 20, 2007, and to reflect that the 1-hour ozone standard will no longer apply in the Denver area as of November 20, 2008.

B. How Is This Document Organized?

The information presented in this preamble is organized as follows:

Outline

I. General Information

A. Does This Action Apply to Me?

B. How Is This Document Organized?

II. What is the Purpose of This Document?

III. What Action Has EPA Taken to Date for Early Action Compact Areas?

IV. What Comments Did EPA Receive on the February 6, 2008 Proposal To Designate These 13 Early Action Compact Areas in Attainment With the 8-Hour Ozone NAAQS?

V. What Is the Final Action for the 13 Early Action Compact Areas?

VI. Why Is EPA Revoking the 1-Hour Ozone Standard?

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

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

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

I. National Technology Transfer Advancement Act

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

K. Congressional Review Act

L. Petitions for Judicial Review

II. What Is the Purpose of This Document?

The purpose of this document is to designate 13 EAC areas as attainment for the 8-hour ozone NAAQS, as they have met all the milestones of the EAC program and demonstrated that they were in attainment with the 8-hour ozone NAAQS by December 31, 2007. This final action also takes the ministerial action of revising Section 81.306 to reflect the 8-hour ozone nonattainment designation for the Denver EAC area, which became effective November 20, 2007. Additionally, it revises the 1-hour ozone NAAQS tables for the 13 EAC areas and the Denver area to reflect that the 1-hour ozone standard no longer applies one year after the effective date of designation for each area. The 1-hour standard was revoked, effective June 15, 2005 for all other areas of the country except the 14 EAC areas that were designated nonattainment with a deferred effective date.

III. What Action has EPA Taken to Date for Early Action Compact Areas?

There are 13 EAC areas that had the effective date of their 8-hour ozone designations deferred until April 15, 2008 (71 FR 69022). Fifteen other areas that are participating in the program were designated attainment in April 2004, with an effective date of June 15, 2004. These areas have remained in the program in order to continue improving their local air quality. For one EAC area, the Denver EAC area, the nonattainment designation for the 8-hour ozone NAAQS became effective November 20, 2007, consistent with the terms of a settlement agreement reached in litigation challenging our actions with respect to the Denver EAC area. Rocky Mountain Clean Air Action v. EPA (D.C. Cir. No. 07-1012). For discussions on EPA's actions to date with respect to deferring the effective date of nonattainment designations for certain areas of the country that are participating in the EAC program and Denver specifically please refer to the Federal Register dated June 28, 2007 (72 FR 35356) and September 21, 2007 (72 FR 53952). In addition, EPA's April 30, 2004, air quality designation rule (69 FR 23858) provides a description of the compact area approach, the requirements for areas participating in the compact and the impacts of the compact on those areas.

You may find copies of all State reports at http://www.epa.gov/ttn/naaqs/ozone/eac/ .

IV. What Comments did EPA receive on the February 6, 2008 proposal to designate these 13 Early Action Compact Areas in attainment with the 8-hour Ozone NAAQS?

We received three comments on the proposed rule to designate these 13 EAC areas in attainment with the 8-hour ozone standard effective April 15, 2008. We have responded to the comments in this section.

Comments: Two commenters expressed support for the compact process, the goal of clean air sooner, the incentives and flexibility the program provides for encouraging early reductions of ozone-forming pollution, and the deferred effective date of nonattainment designation. However, one commenter opposed the EAC program indicating the program conflicts with existing obligations under the Clean Air Act and may create the potential for downwind areas to be adversely affected by the emissions growth in EAC areas in the future. This commenter expressed concern about various legal aspects of the program, primarily the deferral of the effective date of the nonattainment designation for these areas. The commenter indicated that EPA lacks authority under the CAA to defer the effective date of a nonattainment designation. In addition, the commenter stated that EPA lacks authority to enter into EACs with areas and lacks authority to allow areas to be relieved of obligations under title I, part D of the CAA while these areas are violating the 8-hour ozone standard or are designated nonattainment for that standard.

Response: The compact program, as designed, gives local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard. The participating communities are serious in their commitment and have demonstrated attainment with the 8-hour ozone standard sooner than was required under the CAA by implementing State and local measures for controlling emissions from local sources earlier than the CAA would otherwise require. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental and citizens groups, a number of these communities have, for the first time, cooperated on a regional basis to solve environmental problems that affect the health and welfare of their citizens. People living in these areas realized reductions in pollution levels sooner and are enjoying the health benefits of cleaner air sooner than might otherwise occur. We incorporate our responses to similar comments from our final rules dated April 30, 2004 (69 FR 23858) and August 29, 2005 (70 FR 50988) respectively.

V. What is the Final Action for the 13 Early Action Compact Areas?

The 13 EAC areas with deferred nonattainment designations for the 8-hour NAAQS, had to meet one final milestone which was to demonstrate attainment with the 8-hour ozone NAAQS by December 31, 2007. Each of these EAC areas met all of the earlier milestones of the EAC program and the States in which the areas are located have now submitted quality-assured data demonstrating that the areas attained the 8-hour ozone NAAQS based on air quality data from 2005, 2006 and 2007. Therefore, EPA is designating these 13 areas as attainment for the 8-hour ozone standard effective April 15, 2008. Because this action will relieve a restriction by finalizing the designations for these areas, the requirement of section 553(d) of the Administrative Procedure Act that a rule not take effect earlier than 30 days following publication does not apply. Table 1 provides the 8-hour ozone design values for each of the 13 EAC areas based on the 2005-2007 air quality data.

VI. Why Is EPA Revoking the 1-hour Ozone Standard?

The regulatory text for the 1-hour ozone standard provides that the 1-hour ozone standard “will no longer apply to an area one year after the effective date of the designation of that area for the 8-hour ozone NAAQS pursuant to section 107 of the Clean Air Act.” 40 CFR 50.9(b). In accordance with this regulation, the 1-hour ozone NAAQS will no longer apply in the 13 EAC areas effective April 15, 2009. Because the 8-hour ozone nonattainment designation for the Denver EAC became effective November 20, 2007, the 1-hour ozone NAAQS will no longer apply in the Denver EAC area effective November 20, 2008. We are revising the 1-hour ozone NAAQS tables in Part 81 to reflect the date on which the 1-hour ozone standard will no longer apply for these areas.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735; October 4, 1993) and is therefore not subject to review under the Executive Order.

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 1320.39b). This final rule does not require the collection of any information.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative 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 final rule on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

This final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Thus, this final rulemaking is not subject to the requirements of sections 202 and 205 of the UMRA.

EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments because this rule does not contain Federal mandates.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the E.O. to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

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

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

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have “Tribal implications” as specified in Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAA program to attain the 8-hour ozone NAAQS at this time or has participated in a compact. Thus Executive Order 13175 does not apply to this rule.

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

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 final rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355; May 22, 2001 because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 104-113, section 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. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This final rule does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

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

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

The 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 does not affect the level of protection provided to human health or the environment. The health and environmental risks associated with ozone were considered in the establishment of the 8-hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with an adequate margin of safety.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective April 15, 2008.

L. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by June 2, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA Section 307(b)(2).

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control

Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f; 42 U.S.C. 7601(a)(1).

For the reason set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

PART 81—[AMENDED]

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

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

Subpart C—[Amended]

2. Section 81.306 is amended as follows:

a. In the table entitled “Colorado-Ozone (1-Hour Standard) ⁴” by revising footnote 4.

b. In the table entitled “Colorado-Ozone (8-Hour Standard)” by revising footnote 2.

3. Section 81.311 is amended as follows:

a. In the table entitled “Georgia-Ozone (1-Hour Standard) ²” by revising footnote 2.

b. In the table entitled “Georgia-Ozone (8-Hour Standard)” by:

i. Revising footnote 2.

ii. Under “Chattanooga, TN-GA” by revising the entry for “Catoosa County”.

4. Section 81.321 is amended as follows:

a. In the table entitled “Maryland-Ozone (1-Hour Standard) ²” by revising footnote 2.

b. In the table entitled “Maryland-Ozone (8-Hour Standard)” by:

i. Revising footnote 2.

ii. Under “Washington County (Hagerstown), MD” by revising the entry for “Washington County”.

5. Section 81.334 is amended as follows:

a. In the table entitled “North Carolina-Ozone (1-Hour Standard) ²” by revising footnote 2.

b. In the table entitled “North Carolina-Ozone (8-Hour Standard)” by:

i. Revising footnote 2.

ii. Under “Fayetteville, NC” by revising the entry for “Cumberland County”; under “Greensboro-Winston-Salem-High Point, NC” by revising the entries for “Alamance County”, “Caswell County”, “Davidson County”, “Davie County”, “Forsyth County”, “Guilford County”, “Randolph County”, and “Rockingham County”; under “Hickory-Morganton-Lenoir, NC” by revising the entries for “Alexander County”, “Burke County (part)”, and “Caldwell County (part)”, and “Catawba County”.

6. Section 81.341 is amended as follows:

a. In the table entitled “South Carolina-Ozone (1-Hour Standard) ² ” by revising footnote 2.

b. In the table entitled “South Carolina-Ozone (8-Hour Standard)” by:

i. Revising footnote 2.

ii. Under “Columbia, SC” by revising the entries for “Lexington County (part) Portion along MPO lines”, “Richland County (part) Portion along MPO lines”; under “Greenville-Spartanburg-Anderson, SC” by revising the entries for “Anderson County”, “Greenville County”, and “Spartanburg County”.

7. Section 81.343 is amended as follows:

a. In the table entitled “Tennessee-Ozone (1-Hour Standard) ²” by revising footnote 2.

b. In the table entitled “Tennessee-Ozone (8-Hour Standard)” by:

i. Revising footnote 2.

ii. Under “Chattanooga, TN-GA” by revising the entries under “Hamilton County” and “Meigs County”; under “Johnson City-Kingsport-Bristol, TN” by revising entries for “Hawkins County” and “Sullivan County”; and under “Nashville, TN” by revising the entries for “Davidson County”, “Rutherford County”, “Sumner County”, “Williamson County”, and “Wilson County”.

8. Section 81.344 is amended as follows:

a. In the table entitled “Texas-Ozone (1-Hour Standard) ²” by revising footnote 2.

b. In the table entitled “Texas-Ozone (8-Hour Standard)” by:

i. Revising footnote 2.

ii. Under “San Antonio, TX” by revising the entries “Bexar County”, “Comal County”, and “Guadalupe County”.

9. Section 81.347 is amended as follows:

a. In the table entitled “Virginia-Ozone (1-Hour Standard) ³” by revising footnote 3.

b. In the table entitled “Virginia-Ozone (8-Hour Standard)” by:

i. Revising footnote 2.

ii. Under “Frederick Col, VA” by revising the entries for “Frederick County” and “Winchester City”, and under “Roanoke, VA” by revising the entries for “Botetourt County”, “Roanoke City”, “Roanoke County” and “Salem City”.

10. Section 81.349 is amended as follows:

a. In the table entitled “West Virginia—Ozone (1-Hour Standard) ² ” by revising footnote 2.

b. In the table entitled “West Virginia—Ozone (8-Hour Standard)” by:

i. Revising footnote 2.

ii. Under “Berkeley & Jefferson Cos, WV” by revising the entries for “Berkeley County” and “Jefferson County”.