Deferral of Effective Date of Nonattainment Designations for 8-
Hour Ozone National Ambient Air Quality Standards for Early Action
Compact Areas
[Federal Register: December 16, 2003 (Volume 68, Number 241)]
[Proposed Rules]
[Page 70107-70119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16de03-21]
[[Page 70108]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[FRL-7599-7]
RIN 2060-AL85
Deferral of Effective Date of Nonattainment Designations for 8-
Hour Ozone National Ambient Air Quality Standards for Early Action
Compact Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rulemaking.
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SUMMARY: The EPA is proposing to defer the effective date of air
quality designations for certain areas of the country that do not meet
the 8-hour ozone national ambient air quality standard (NAAQS). Early
Action Compact (compact) areas have agreed to reduce ground-level ozone
pollution earlier than the Clean Air Act (CAA) requires. By April 15,
2004, EPA will designate all areas for the 8-hour ozone NAAQS. The EPA
is proposing that, when it promulgates the designations in April 2004,
EPA will issue the first of three deferrals of the effective date of
the designation for any compact area that is designated nonattainment
and continues to meet all compact milestones. In this proposal, EPA is
proposing to defer until September 30, 2005, the effective date of the
8-hour ozone nonattainment designation for specific areas.
The EPA believes this program provides an incentive for early
planning, early implementation, and early reductions of emissions
leading to expeditious attainment and maintenance of the 8-hour ozone
standard. In addition, these compact agreements give local areas the
flexibility to develop their own approach to meeting the 8-hour ozone
standard, provided the communities control emissions from local sources
earlier than the CAA would otherwise require. People living in areas
that realize reductions sooner will enjoy the health benefits of
cleaner air sooner than might otherwise occur.
This proposed rule does not propose to establish attainment/
nonattainment designations, nor does it address the principles that
will be considered in the designation process.
DATES: Comments must be received on or before January 15, 2004. The EPA
does not intend to grant a request to extend the comment period due to
the need to complete the designations process by April 2004. If EPA
receives comments after the close of the comment period, we will make
every effort to review them.
ADDRESSES: All comments should be submitted to Docket Number OAR 2003-
0090 and a copy to David Cole, EPA. Comments may be submitted
electronically, by mail, by facsimile, or through hand delivery/
courier. Follow the detailed instructions as provided in unit I.A of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Mr. David Cole, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, Mail Code
C539-02, Research Triangle Park, NC 27711, phone number (919) 541-5565 or
by e-mail at: cole.david@epa.gov or Ms. Valerie Broadwell, Office of
Air Quality Planning and Standards, U.S. Environmental Protection
Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone number
(919) 541-3310 or by e-mail at: broadwell.valerie@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How Can I Get Copies of This Document and Other Related Information?
1. Docket. The EPA has established an official public docket for
this action under Docket ID Number OAR 2003-0090. The official public
docket consists of the documents specifically referenced in this
action, any public comments received, and other information related to
this action. Although a part of the official docket, the public docket
does not include Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. The official
public docket is the collection of materials that is available for
public viewing at the Air and Radiation Docket in the EPA Docket
Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The EPA Docket Center 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 Air and Radiation Docket is
(202) 566-1742.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.regulations.gov/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute and which, therefore, is not included in the
official public docket, will not be available for public viewing in
EPA's electronic public docket. The EPA's policy is that copyrighted
material will not be placed in EPA's electronic public docket but will
be available only in printed, paper form in the official public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in unit I.A.1.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
B. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, by facsimile, or
through hand delivery/courier. To ensure proper receipt by EPA,
identify the appropriate docket identification number in the subject
line on the first page of your comment. Please ensure
[[Page 70109]]
that your comments are submitted within the specified comment period.
Comments received after the close of the comment period will be marked
``late.'' The EPA is not required to consider these late comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. The EPA's policy is that
EPA will not edit your comment, and any identifying or contact
information provided in the body of a comment will be included as part
of the comment that is placed in the official public docket, and made
available in EPA's electronic public docket. 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.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/
edocket, and follow the online instructions for submitting comments.
To access EPA's electronic public docket from the EPA Internet Home Page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in Docket ID No. OAR-
2003-0090. The system is an ``anonymous access'' system, which means
EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to
A-and-R-Docket@epa.gov, Attention Docket ID No. OAR-2003-0090.
In addition, please send a copy of e-mail comments to cole.david@epa.gov.
In contrast to EPA's electronic public docket, EPA's e-mail system is
not an ``anonymous access'' system. If you send an e-mail comment
directly to the Docket without going through EPA's electronic public
docket, EPA's e-mail system automatically captures your e-mail address.
The E-mail addresses that are automatically captured by EPA's e-mail
system are included as part of the comment that is placed in the
official public docket, and made available in EPA's electronic public
docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in unit I.B.2 below.
These electronic submissions will be accepted in WordPerfect or ASCII
file format. Avoid the use of special characters and any form of
encryption.
2. By Mail. Send your comments to: Air and Radiation Docket, U.S.
Environmental Protection Agency, Mail Code: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID No. OAR 2003-0090.
In addition, please send a copy of your comments to: David Cole, U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards, Mail Code: C539-02, Research Triangle Park, NC 27711.
3. By Hand Delivery or Courier. Deliver your comments to: Air and
Radiation Docket, U.S. Environmental Protection Agency, 1301
Constitution Avenue, NW., Room B102, Washington, DC 20004, Attention
Docket ID No. OAR 2003-0090. Such deliveries are only accepted during
the Docket's normal hours of operation as identified in unit I.A.1.
Please also deliver a copy of your comments to: David Cole, U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709.
4. By Facsimile. Fax your comments to: 202-566-1741, Attention
Docket ID No. OAR 2003-0090; and to: 919-541-0824, Attention: David
Cole.
C. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
Outline
II. What are the health concerns addressed by the 8-hour ozone
standard?
III. What is the background on implementation of the 8-hour ozone
standard?
IV. What actions is EPA taking to designate areas for the 8-hour
ozone standard?
A. What is EPA's schedule for designating areas for the 8-hour
ozone standard?
B. What action is EPA taking to defer the effective date of the
nonattainment designation for Early Action Compact areas?
V. What is an Early Action Compact, and what are compact areas
required to do?
A. Why was the compact program developed?
B. What early action protocol did Texas submit to EPA?
C. What are compact areas required to do?
VI. What areas are participating in the Early Action Compact
program?
A. What progress are compact areas making toward completing
their milestones?
B. How will EPA address compact areas attaining the 8-hour ozone
standard in April 2004?
C. What is the air quality of the compact areas?
VII. What are the impacts of this action?
A. What are the regulatory effects of this action?
B. What are the consequences of compacts for local areas?
VIII. 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
II. What Are the Health Concerns Addressed by the 8-Hour Ozone
Standard?
Ground-level ozone pollution is formed by the reaction of volatile
organic compounds (VOC) and nitrogen oxides (NOX) in the
atmosphere in the presence of sunlight. These two pollutants, often
referred to as ozone precursors, are emitted by many types of pollution
sources, including on-road and off-road motor vehicles and engines,
power plants and industrial facilities, and smaller ``area'' sources.
[[Page 70110]]
In 1979, we promulgated the 0.12 ppm (parts per million) 1-hour
ozone standard, (44 FR 8202, February 8, 1979). On July 18, 1997, we
promulgated a revised standard of 0.08 ppm, measured over an 8-hour
period, i.e., the 8-hour standard (62 FR 38856). In general, the 8-hour
standard is more protective of public health and more stringent than
the 1-hour standard, and there are more areas that do not meet the 8-
hour standard than there are areas that do not meet the 1-hour
standard.
Ozone can irritate the respiratory system, causing coughing, throat
irritation, and/or uncomfortable sensation in the chest. Ozone can
reduce lung function and make it more difficult to breathe deeply, and
breathing may become more rapid and shallow than normal, thereby
limiting a person's normal activity. Ozone also can aggravate asthma,
leading to more asthma attacks that require a doctor's attention and/or
the use of additional medication. In addition, ozone can inflame and
damage the lining of the lungs, which may lead to permanent changes in
lung tissue, irreversible reductions in lung function, and a lower
quality of life if the inflammation occurs repeatedly over a long time
period (months, years, a lifetime). People who are particularly
susceptible to the effects of ozone include children and adults who are
active outdoors, people with respiratory disease, such as asthma, and
people with unusual sensitivity to ozone.
More detailed information on health effects of ozone can be found
at the following web site:
http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_index.html.
III. What Is the Background on Implementation of the 8-hour Ozone
Standard?
This action proposes an option that provides incentives for certain
areas taking voluntary, early actions for reducing ozone for
implementing the 8-hour ozone NAAQS. The option was discussed in EPA's
June 2, 2003 proposed rulemaking (68 FR 32859) for implementing that
standard. This section presents background information on the June 2,
2003 proposal.
On July 18, 1997, we revised the ozone NAAQS (62 FR 38856) by
promulgating an ozone standard of .08 ppm as measured over an 8-hour
period. At that time, we indicated that we believed that the 8-hour
ozone NAAQS should be implemented under the less detailed requirements
of subpart 1 of part D of title I of the CAA rather than the more
detailed requirements of subpart 2. Various industry groups and States
challenged EPA's final rule promulgating the 8-hour ozone NAAQS in the
U.S. Court of Appeals for the District of Columbia Circuit.\1\ In May
1999, the Court of Appeals remanded the ozone standard to EPA on the
basis that our interpretation of our authority under the standard-
setting provisions of the CAA resulted in an unconstitutional
delegation of authority. American Trucking Assns., Inc., v. EPA, 175
F.3d 1027, 1034-1040 (ATA I) aff'd, 195 F.3d 4 (D.C. Cir., 1999)(ATA
II). In addition, the Court held that the CAA clearly provided for
implementation of a revised ozone standard under subpart 2, not subpart
1. Id. at 1048-1050.\2\ We sought review of these two issues in the
U.S. Supreme Court. In February 2001, the Supreme Court held that EPA's
action in setting the NAAQS was not an unconstitutional delegation of
authority. Whitman v. American Trucking Assoc., 121 S.Ct. 903, 911-914
(2001) (Whitman). In addition, the Supreme Court held that the D.C.
Circuit incorrectly determined that the CAA was clear in requiring
implementation only under subpart 2, but determined that our
implementation approach, which did not provide a role for subpart 2 in
implementing the 8-hour NAAQS, was unreasonable. Id. at 916-919. The
Court also identified some elements of the CAA's classification scheme
under subpart 2 that are ``ill-fitted'' to the revised standard and
remanded the implementation strategy to EPA to develop a reasonable
approach for implementation. Id. Because the D.C. Circuit had not
addressed all of the issues raised in the underlying case, the court
remanded the case to the D.C. Circuit for disposition of those issues.
Id. at 919. On March 26, 2002, the D.C. Circuit rejected all remaining
challenges to the ozone and fine particle (PM2.5) standards.
American Trucking Assoc. v. EPA, 283 F.3d 355 (D.C. Cir. 2002) (ATA
III).
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\1\ On July 18, 1997, we also promulgated a revised particulate
matter (PM) standard (62 FR 38652). Litigation on the PM standard
paralleled the litigation on the ozone standard and the court issued
one opinion addressing both challenges. However, issues regarding
implementation of the revised PM NAAQS were not litigated.
\2\ The Court addressed a number of other issues, which are not
relevant here.
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In response to the Court's remand, we proposed the 8-hour ozone
implementation rule on June 2, 2003 (68 FR 32802). We plan to issue a
final rule on an implementation approach in the near future.
IV. What Actions Is EPA Taking To Designate Areas for the 8-Hour Ozone
Standard?
A. What Is EPA's Schedule for Designating Areas for the 8-Hour Ozone
Standard?
Section 107(d) of the CAA establishes a deadline for EPA to
promulgate designations of areas.\3\ We have entered into a consent
decree that requires us to promulgate designations on a revised
schedule.\4\ In a settlement with nine environmental groups, we agreed
to designate areas for the 8-hour ozone standard by April 15, 2004.
This deadline provided States and Tribes ample time to update their
recommendations by July 15, 2003 for nonattainment area boundaries. On
November 14, 2002, we issued a guidance memorandum outlining the new
designations schedule, requirements for designating Tribal areas, and
discussing the impact of the designation schedule on areas that are
developing Early Action Compacts.\5\
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\3\ Section 107(d) of the CAA sets forth a schedule for
designations following the promulgation of a new or revised NAAQS.
The Transportation Equity Act for the Twenty-first Century (TEA-21)
revised the deadline to publish nonattainment designations for the
8-hour ozone NAAQS to provide an additional year (to July 2000), but
HR 3645 (EPA's appropriation bill in 2000) restricted EPA's
authority to spend money to designate areas until June 2001 or the
date of the Supreme Court ruling on the standard, whichever came
first.
\4\ American Lung Association v. EPA (D.D.C. No. 1:02CV02239).
\5\ Memorandum from Jeffrey R. Holmstead, Assistant
Administrator, to EPA Regional Administrators, ``Schedule for 8-Hour
Ozone Designations and its Effect on Early Action Compacts,''
November 14, 2002. Docket No. OAR-2003-0090-0003.
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B. What Action Is EPA Taking To Defer the Effective Date of
Nonattainment Designation for Early Action Compact Areas?
At the time we designate areas in April 2004, we plan to take final
action to defer the effective date of the nonattainment designation on
a rolling basis for participating compact areas that are monitoring a
violation of the 8-hour ozone standard, provided all terms of the
agreement continue to be met, including timely completion of all
compact milestones and reports. In today's rule, we are proposing to
establish the first of three deferred effective dates. At the same time
we designate all areas either attainment or nonattainment, we will take
final action determining whether to defer until September 30, 2005, the
effective date of the nonattainment designation for the 8-hour ozone
standard for compact areas that are violating the standard, provided
[[Page 70111]]
these areas continue to meet all compact milestones, which are
described in section V of this proposal.
Prior to the time the first deferral expires, EPA intends to take
further action to propose and, as appropriate, promulgate a second
deferred effective date of the nonattainment designation for those
areas that continue to fulfill all compact obligations. Finally, prior
to the time the second deferral expires, EPA would propose and, as
appropriate, promulgate a third deferral for those areas that continue
to meet all compact milestones.
V. What Is an Early Action Compact, and What Are Compact Areas Required
To Do?
A. Why Was the Compact Program Developed?
As discussed in the proposed 8-hour implementation rule, State,
local and Tribal air pollution control agencies have continued to
express a need for added flexibility in implementing the 8-hour ozone
NAAQS, including incentives for taking action sooner than the CAA
requires for reducing ground-level ozone. The compact program permits
local areas to make decisions that will achieve reductions in VOC and
NOX emissions sooner than otherwise is mandated by the CAA.
Early planning and early implementation of control measures that
improves air quality will likely accelerate protection of public
health. We issued our policy on early planning on November 14, 2002, as
described in section IV of this action.
B. What Early Action Protocol Did Texas Submit to EPA?
In March 2002, the Texas Commission on Environmental Quality (TCEQ)
encouraged EPA to consider incentives for early planning towards
achieving the 8-hour ozone NAAQS. The TCEQ submitted to EPA the
Protocol for Early Action Compacts Designed to Achieve and Maintain the
8-hour Ozone Standard (Protocol). The Protocol was designed to achieve
NOX and VOC emissions reductions for the 8-hour ozone NAAQS
sooner than would otherwise be required under the CAA. The TCEQ
recommended that the Protocol be formalized by ``Early Action Compact''
agreements primarily developed by local, State and Federal (EPA)
officials. The principles of the compacts, as described in the
Protocol, are the following:
1. Early planning, implementation, and emissions reductions leading
to expeditious attainment and maintenance of the 8-hour ozone standard;
2. Local control of the measures employed, with broad-based public
input;
3. State support to ensure technical integrity of the early action
plan;
4. Formal incorporation of the early action plan into the State
implementation plan (SIP);
5. Designation of all areas as attainment or nonattainment in April
2004, but, for compact areas, deferral of the effective date of the
nonattainment designation and/or designation requirements so long as
all compact terms and milestones continue to be met; and
6. Safeguards to return areas to traditional SIP attainment
requirements should compact terms be unfulfilled (e.g., if the area
fails to attain in 2007), with appropriate credit given for reduction
measures already implemented.
In a letter dated June 19, 2002, from Gregg Cooke, Administrator,
Region 6, to Robert Huston, Chairman, TCEQ, EPA endorsed the principles
outlined in the Protocol. The Protocol was subsequently revised on
December 11, 2002, based on comments from EPA.
The Protocol specifies certain components that compacts are
addressing, including the development of local air quality plans and
the following elements:
1. Completion of emissions inventories and modeling (based on most
recent Agency guidance) to support selection of local control measures;
2. Adoption of control strategies that demonstrate attainment and
that are submitted as a revision to the SIP;
3. Completion of a component to address emissions growth at least 5
years beyond December 31, 2007, ensuring that the area will remain in
attainment of the 8-hour ozone standard during that period;
4. Public involvement in all stages of planning and implementation,
including public education programs and a process that ensures
stakeholder involvement and public participation in planning local
strategies and reviewing air quality plans; and
5. Semiannual reports detailing progress toward completion of
compact milestones.
C. What Are Compact Areas Required To Do?
The Protocol and Agency guidance (EPA memorandum dated November 14,
2002, described in section IV, and EPA memorandum dated April 4, 2003
\6\ establish what compact areas are required to do. To be eligible for
a compact, these areas must be attaining the 1-hour ozone standard
(including maintenance areas for the 1-hour ozone standard, to the
extent such areas continue to maintain that standard) and be designated
attainment for that standard at the time the compact was entered into.
These areas, however, may be approaching or monitoring exceedances of
the 8-hour ozone standard.\7\ A compact area must be attaining the 8-
hour ozone standard by December 31, 2007, based on the most recent 3
years of air quality monitoring data.
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\6\ Memorandum from Lydia N. Wegman, Director, Air Quality
Strategies and Standards Division, ``Early Action Compacts (EACs):
The June 16, 2003 Submission and Other Clarifications,'' April 4,
2003. Docket No. OAR-2003-0090-0002.
\7\ One-hour ozone maintenance areas are areas that were
previously designated nonattainment for the 1-hour ozone standard,
but were redesignated to attainment pursuant to section 107(d)(3)(E)
and subject to the requirements of section 175A of the CAA.
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The EPA's November 14, 2002, memorandum specified that compacts
must be completed, submitted to EPA and signed by local, State and EPA
officials by December 31, 2002. We intend to honor the commitments
established in these agreements, provided these areas meet all
components of the Protocol and Agency guidance and schedules. No
additional areas were allowed to enter into compacts after December 31,
2002.
The Protocol describes the process by which compact areas are
required to select control strategies based on SIP-quality modeling
that shows attainment of the 8-hour ozone standard no later than
December 31, 2007, through implementation of control strategies. The
EPA specified that all compact areas must submit a local plan by March
31, 2004 that will include measures that are specific, quantified, and
permanent and that, if approved into the SIP by EPA, will be federally
enforceable. The March 31, 2004 submission must also include specific
implementation dates for the local controls, as well as detailed
documentation supporting the selection of measures. Controls must be
implemented no later than December 31, 2005, which is at least 16\1/2\
months earlier than required by the CAA. Reports are required every 6
months to describe progress toward completion of milestones. In June
2006 compact areas must submit a report to EPA that describes
implementation of measures that was required by the end of December
2005, as well as an assessment of reductions in emissions and air quality.
[[Page 70112]]
Table 1 describes the milestones and submissions that compact areas
are required to complete in order to continue eligibility for a
deferral of the effective date of nonattainment designation for the 8-
hour ozone standard.
Table 1.--Early Action Compact Milestones
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Submittal date Compact milestone
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December 31, 2002................. Submit Compact for EPA signature.
June 16, 2003..................... Submit preliminary list and
description of potential local
control measures under
consideration.
March 31, 2004.................... Submit complete local plan to State
(includes specific, quantified and
permanent control measures to be
adopted).
December 31, 2004................. State submits adopted local measures
to EPA as a SIP revision that, when
approved, will be federally
enforceable.
2005 Ozone Season (or no later Implement SIP control measures.
than December 31, 2005).
June 30, 2006..................... State reports on implementation of
measures and assessment of air
quality improvement and reductions
in NOX and VOC emissions to date.
December 31, 2007................. Area attains 8-hour ozone NAAQS.
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According to the Protocol, EPA would recognize the local area's
commitment to early, voluntary action by designating the compact areas
violating the 8-hour NAAQS as nonattainment in April 2004 (at the time
of national designations for all areas), but deferring the effective
date of the nonattainment designation, so long as all terms and
milestones of the Compact continue to be met. A copy of the revised
Protocol is available in the docket for this proposed rulemaking.\8\
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\8\ The Texas Protocol was submitted to EPA in March 2002 for
review and was revised in December 2002 based on the Agency's
comments concerning the need for additional milestones and other
clarifications. Docket No. OAR-2003-0090-0004.
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VI. What Areas Are Participating in the Early Action Compact Program?
We have entered into compacts with 33 communities. A list of these
areas is presented in Table 2.
Table 2.--8-Hour Ozone Early Action Compact Areas
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Appalachian (Greenville-Spartanburg-Anderson Area), SC.
Austin-San Marcos Area, TX.
Berkeley-Charleston-Dorchester (Charleston Area), SC.
Catawba (York-Chester-Lancaster-Union Counties), SC--part of Charlotte-
Gastonia-Rock Hill Area.
Central Midlands (Columbia area), SC.
Chattanooga Area, TN-GA.
Denver Area, CO.
Fayetteville Area, NC.
Haywood County (near Memphis), TN.
Knoxville Area, TN.
Low Country (Beaufort area), SC.
Lower Savannah-Augusta (Augusta-Aiken area), GA-SC.
Memphis Area, TN-AR-MS.
Mountain Area of NC (Asheville area), NC.
Nashville Area, TN.
Northeast Texas Area (Longview-Marshall-Tyler Area), TX.
Northern Shenandoah Valley Region (Winchester/Frederick County), VA.
Oklahoma City Area, OK.
Pee Dee (Florence Area), SC.
Putnam County (Central TN, between Nashville and Knoxville), TN.
Roanoke Area, VA.
San Antonio Area, TX.
San Juan County (Farmington Area), NM.
Santee Lynches (Sumter Area), SC.
Shreveport-Bossier City Area, LA.
The Eastern Pan Handle Region (Martinsburg Area), WV.
Triad Area (Greensboro-Winston Salem-High Point), NC.
Tri-Cities Area (Johnson City-Kingsport-Bristol Area), TN.
Tulsa Area, OK.
Unifour Area (Hickory-Morganton-Lenoir Area), NC.
Upper Savannah (Abbeville-Greenwood Area), SC.
Waccamaw (Myrtle Beach Area), SC.
Washington County (West of Washington, DC), MD.
------------------------------------------------------------------------
[[Page 70113]]
A. What Progress Are Compact Areas Making Toward Completing Their
Milestones?
Compact areas are continuing to make good progress toward timely
completion of their milestones. All 33 communities met the June 16,
2003 milestone, which required areas to submit a list and description
of local control measures each area is considering for adoption and
implementation. In addition, all 33 compact areas submitted the June
30, 2003 progress report. The June 16 submissions contained many
innovative measures that EPA believes have the potential to reduce air
pollution, while at the same time, produce additional benefits for
these communities. For example, many compact areas are considering
electrified truck stops to replace the need for engine idling during
truck loading or unloading. A number of other areas are considering the
addition of cetane additives to fuel for increased fuel efficiency. San
Antonio's list of measures includes a walking school bus program. Under
this program, parents rotate the responsibility of walking groups of
students to school in lieu of going by bus or by car. The Center for
Disease Control reports that lack of exercise is one of the primary
reasons why childhood obesity has reached epidemic proportions in the
U.S. In addition to reducing vehicle miles traveled (VMT), thus
decreasing mobile source emissions, a walking school bus program
provides children with another opportunity to get physical exercise.
Stakeholders for the Austin, Texas compact are exploring an
expedited permitting process for ``mixed use, transit-oriented, infill
development.'' Mixing land uses can reduce VMT in several ways,
including trip lengths, mode choice and vehicle ownership. In a recent
study, EPA has concluded that by encouraging people to walk, bike, and
use transit rather than drive, mixed-use development patterns reduce
VMT, thereby decreasing automobile emissions and improving regional air
quality.\9\
---------------------------------------------------------------------------
\9\ ``Our Built and Natural Environments'' (EPA 231-R-01-002,
January 2001).
---------------------------------------------------------------------------
The EPA believes that these types of long-term, land use changes
can reduce air pollution well into the future, as well as produce
multiple benefits that go beyond cleaner air. Such additional effects
include an increase in mobility for all segments of the population, an
increase in physical activity and an improved quality of life. These
are the kinds of measures that EPA would like to see more areas
explore, but for which the CAA provides no real incentives. Based on
the many innovative and creative measures contained in the June 16,
2003 submission, we believe that the Early Action Compact program can
provide such an incentive.
B. How Will EPA Address Compact Areas Attaining the 8-Hour Ozone
Standard in April 2004?
Compact areas that are not violating the 8-hour ozone standard
using 2001-2003 ozone monitoring data will be designated attainment at
the time we designate areas in April 2004. In most cases, compact areas
that would not be in violation of the 8-hour standard when designations
are made in April 2004 would have ozone design values near 85 parts per
billion (ppb), and therefore, are at risk for violating the 8-hour
ozone standard in subsequent ozone seasons (e.g., 2004-2006). We
encourage compact areas designated attainment for the 8-hour standard
based on 2001-2003 data to continue to develop clean air plans and to
remain committed to the compact program to ensure air quality remains
clean. Should an area participating in the program that is designated
attainment in April 2004 subsequently violate the 8-hour ozone standard
during the term of the compact, EPA would not commit to redesignate the
area to nonattainment for so long as the area continues to comply with
the compact requirements and meet all compact milestones. The EPA would
not permit any extension of the compact requirement to attain the
standard by December 2007 for any compact area that violates the
standard after 8-hour ozone designations in April 2004, whether the
area was designated attainment or nonattainment with a deferral of the
effective date of the designation.
C. What Is the Air Quality of the Compact Areas?
A total of 146 counties are covered by compacts. Sixty-four of
these counties have ozone monitors and 82 counties do not. Table 3
below summarizes 2000-2002 air quality data that are available for the
146 counties participating in the program. However, in April 2004, EPA
will designate areas based on 2001-2003 data; therefore, the air
quality status of some compact areas may change for the purpose of
designating areas for the 8-hour ozone standard.
Table 3.--2000-2002 Ozone Air Quality Data for Early Action Compact Counties
----------------------------------------------------------------------------------------------------------------
2000-2002 Ozone design
State Compact area County value, ppb ozone
----------------------------------------------------------------------------------------------------------------
EPA Region 3
----------------------------------------------------------------------------------------------------------------
VA........................ Northern Shenandoah Valley Winchester City.......... .........................
Region. (This area is not a
MSA.) Adjacent to Washington-
Baltimore MSA.
Frederick County......... 85
VA........................ Roanoke Area (part of Roanoke Roanoke County*.......... 87
MSA).
Botetourt County*........ .........................
Roanoke City*............ .........................
Salem City*.............. .........................
MD........................ Washington County (west of Washington County*....... 87
Washington, DC--part of
Washington-Baltimore CMSA).
WV........................ The Eastern Pan Handle Region Berkeley County*......... .........................
(Martinsburg area--part of
Washington-Baltimore MSA).
Jefferson County*........ .........................
----------------------------------------------------------------------------------------------------------------
EPA Region 4
----------------------------------------------------------------------------------------------------------------
NC........................ Mountain Area of Western NC Buncombe County*......... 85
(Asheville MSA + additional
counties).
[[Page 70114]]
Haywood County........... 87
Henderson County......... .........................
Madison County*.......... .........................
Transylvania County...... .........................
NC........................ Unifour (Hickory-Morganton- Catawba County*.......... .........................
Lenoir MSA).
Alexander County*........ 91
Burke County*............ .........................
Caldwell County*......... 86
NC........................ Triad (Greensboro-Winston Surry County............. .........................
Salem--High Point MSA +
additional counties).
Yadkin County*........... .........................
Randolph County*......... .........................
Forsyth County*.......... 94
Davie County*............ 95
Alamance County*......... .........................
Caswell County........... 91
Davidson County*......... .........................
Stokes County*........... .........................
Guilford County*......... 93
Rockingham County........ 90
NC........................ Fayetteville (Fayetteville Cumberland County*....... 87
MSA).
SC........................ Appalachian--A (Greenville- Cherokee County*......... 87
Spartanburg-Anderson MSA +
additional counties).
Spartanburg County*...... 90
Greenville County*....... .........................
Pickens County*.......... 85
Anderson County*......... 88
Oconee County............ 87**/84
SC........................ Catawba--B (part of Charlotte- York County*............. 84
Gastonia-Rock Hill MSA).
Chester County........... 84
Lancaster County......... .........................
Union County............. 81
SC........................ Pee Dee--C (Florence MSA + Florence County*......... .........................
additional counties).
Chesterfield County...... .........................
Darlington County........ 86
Dillon County............ .........................
Marion County............ .........................
Marlboro County.......... .........................
SC........................ Waccamaw--D (Myrtle Beach MSA Williamsburg County...... 73
+ additional counties).
Georgetown County........ .........................
Horry County*............ .........................
SC........................ Santee Lynches--E (Sumter MSA Clarenton County......... .........................
+ additional counties).
Lee County............... .........................
Sumter County*........... .........................
Kershaw County........... .........................
SC........................ Berkeley-Charleston- Dorchester County*....... .........................
Dorchester--F (Charleston-
North Charleston MSA).
Berkeley County*......... 81**75
Charleston County*....... 77**/74
SC........................ Low Country--G (Beaufort area/ Beaufort County.......... .........................
not a MSA).
Colleton County.......... 80
Hampton County........... .........................
Jasper County............ .........................
SC/GA..................... Lower Savannah-Augusta (part Aiken County, SC......... 83
of Augusta-Aiken MSA +
additional counties).
Orangeburg County, SC.... .........................
Barnwell County, SC...... 83
Calhoun County, SC....... .........................
Allendale County, SC..... .........................
Bamberg County, SC....... .........................
Richmond County, GA*..... 87
Columbia County, GA*..... .........................
SC........................ Central Midlands--I (Columbia Richland County*......... 93
MSA + additional counties).
Lexington County*........ .........................
Newberry County.......... .........................
Fairfield County......... .........................
SC........................ Upper Savannah--(Abbeville- Abbeville County......... .........................
Greenwood area/not a MSA).
Edgefield County* (in 83
Augusta-Aiken MSA).
Laurens County........... .........................
[[Page 70115]]
Saluda County............ .........................
Greenwood County......... .........................
TN/GA..................... Chattanooga (Chattanooga MSA + Hamilton County, TN*..... 93
additional county).
Meigs County, TN*........ 93
Marion County, TN*....... .........................
Walker County, GA*.......
Catoosa County, GA*...... .........................
TN........................ Knoxville (Knoxville MSA + Knox County*............. 96
additional counties).
Anderson County*......... 92
Union County*............ .........................
Loudon County*........... .........................
Blount County*........... 94
Sevier County*........... 98
Jefferson County......... 95
TN........................ Nashville (Nashville MSA)..... Davidson County*......... 80
Rutherford County*....... 84
Williamson County*....... 87
Wilson County*........... 85
Sumner County*........... 88
Robertson County*........ .........................
Cheatham County*......... .........................
Dickson County*.......... .........................
TN/AR/MS.................. Memphis (Memphis MSA)......... Shelby County, TN*....... 90
Tipton County, TN*....... .........................
Fayette County, TN*...... .........................
DeSoto County, MS*....... 86
Crittenden County, AR*... 94
TN........................ Haywood County (near Memphis)-- Haywood County........... 86
adjacent to Memphis MSA and
Jackson MSA.
TN........................ Putnam County (central TN, Putnam County............ 86
between Nashville and
Knoxville)--not a MSA.
TN........................ Johnson City-Kingsport-Bristol Sullivan County, TN*..... 92
Area--portion of the Johnson
City-Kingsport-Bristol MSA +
additional county.
Hawkins County, TN*...... .........................
Washington County, TN*... .........................
Unicoi County, TN*....... .........................
Carter County, TN*....... .........................
Johnson County, TN.......
----------------------------------------------------------------------------------------------------------------
EPA Region 6
----------------------------------------------------------------------------------------------------------------
TX........................ Austin/San Marcos (Austin-San Travis County*........... 85
Marcos MSA).
Williamson County*....... .........................
Hays County*............. .........................
Bastrop County*.......... .........................
Caldwell County*......... .........................
TX........................ Northeast Texas (Longview- Gregg County* (Longview 88
Marshall & Tyler MSAs + MSA).
additional county).
Harrison County* .........................
(Longview MSA).
Rusk County.............. .........................
Smith County* (Tyler MSA) 84
Upshur County* (Longview .........................
MSA).
TX........................ San Antonio (San Antonio MSA). Bexar County*............ 86
Wilson County*........... .........................
Comal County*............ .........................
Guadalupe County*........ .........................
OK........................ Oklahoma City (Oklahoma City Canadian County*......... .........................
MSA).
Cleveland County*........ 77
Logan County*............ .........................
McClain County*.......... 79
Oklahoma County*......... 82
Pottawatomie County*..... .........................
OK........................ Tulsa (part of Tulsa MSA)..... Tulsa County*............ 87
Creek County* (part)..... .........................
Osage County* (part)..... .........................
Rogers County* (part).... .........................
Wagoner County* (part)... .........................
LA........................ Shreveport-Bossier City Bossier Parish*.......... 84
(Shreveport-Bossier City MSA).
Caddo Parish*............ 79
Webster Parish*.......... .........................
[[Page 70116]]
NM........................ San Juan County (Farmington San Juan County.......... 76
area--not a MSA, but a
southeast segment is adjacent
to Albuquerque MSA).
----------------------------------------------------------------------------------------------------------------
EPA Region 8
----------------------------------------------------------------------------------------------------------------
CO........................ Denver (part of Denver-Boulder- Denver County*........... 72
Greeley MSA).
Boulder County* 73
(excluding Rocky Mtn
National Park).
Jefferson County*........ 83
Douglas County*.......... 80
City/County of .........................
Broomfield* (a new
county downtown).
Adams* and Arapahoe* 64, 76
Counties (the part west
of Kiowa Creek)
(excludes extreme
eastern portions of
counties).
----------------------------------------------------------------------------------------------------------------
Note: The air quality information in this table is based on 2000-2002 data from monitors (where available)
located in each county of a compact area. Ozone designations in April 2004 will be based on 2001-2003 data.
The boundaries of these compact areas will not necessarily correspond to the boundaries for the 8-hour ozone
nonattainment areas that will be designated in April 2004. An ozone design value of 85 ppb or greater
indicates a violation of the 8-hour ozone standard. A single asterisk following a county name means that
county is included in a Consolidated/Metropolitan Statistical Area (C/MSA). In a few counties, higher
historical design values (indicated by double asterisks) are also listed when 2000-2002 design values are not
complete at a monitoring site. A blank in the last column means either no monitor is located in the county or
the monitor(s) in the county have recorded less than 3 years of data.
VII. What Are the Impacts of This Action?
This section discusses the effect of this proposed rule on compact
areas, including the regulatory effects and the consequences of
participation in these compacts.
A. What Are the Regulatory Effects of This Action?
Since the effective date of the nonattainment designation would be
deferred for compact areas that are violating the 8-hour standard, all
CAA requirements for the 8-hour standard that would apply to an area
designated nonattainment for that standard, such as new source review
(NSR) and transportation conformity, would not apply during the
deferral period.
In April 2004, the Agency will designate areas as nonattainment
based on 2001-2003 air quality monitoring data. However, based on 2000-
2002 data, we do know that of those compact areas that are violating
the 8-hour ozone standard, most are very close to the standard. We
believe many of these areas, if their nonattainment designations were
not deferred, would be classified under subpart 1 of the CAA, if EPA
adopted its preferred classification scheme described in the June 2,
2003 proposed rule to implement the 8-hour ozone standard (68 FR
32866). Table 4 is a summary of the requirements that would apply if
compact areas do not receive a deferred nonattainment effective date
and instead become classified under subpart 1. Providing information
about subpart 1 requirements in this notice does not imply that we have
decided not to adopt our proposed classification option 1, which would
have placed all areas under subpart 2.
Table 4.--Subpart 1 Nonattainment Area Requirements
------------------------------------------------------------------------
-------------------------------------------------------------------------
Achieve attainment as expeditiously as practicable, but no later than 5
years after designation. EPA may grant an additional 5-year extension
under certain circumstances.
Reasonable Further Progress (RFP).
Reasonably Available Control Measures requirement.
Attainment demonstration.
Major source definition of 100 tons per year or more for NSR and
Reasonably Available Control Technology.
NSR offset ratio of greater than 1 to 1.
NSR permit program.
Emissions inventory.
Transportation conformity.
Contingency measures to take effect in the event of failure to show RFP
or to attain.
------------------------------------------------------------------------
Conversely, with a deferred effective date, a compact area would
not be subject to the requirements listed above, as long as the area
continues to meet all of its milestones as described in Section V,
Table 1, of this notice.\10\
---------------------------------------------------------------------------
\10\ Note that compact areas that have maintenance plans for any
other NAAQS, including the ozone 1-hour standard, are still subject
to the requirements in the maintenance plan, such as contingency
measures. In addition, transportation conformity would continue to
apply for such areas for the 1-hour standard and any other
applicable standards.
---------------------------------------------------------------------------
B. What Are the Consequences of Compacts for Local Areas?
In addition to the benefit of early reductions, there are other
[[Page 70117]]
consequences associated with participating in these compacts, some of
which are noted below.
1. Compacts give local areas the flexibility to develop their own
approach to meeting the 8-hour ozone standard, provided the communities
control emissions from local sources earlier than the CAA would
otherwise require, consistent with timelines in the Protocol.
2. If all terms of the agreement are met, EPA would defer the
effective date of the nonattainment designation for compact areas.
3. People living in areas that realize reductions sooner will enjoy
the health benefits of cleaner air sooner than might otherwise occur.
4. Reductions in emissions from pollution control measures that are
implemented as part of a compact are creditable toward air quality
planning goals, to the extent credit is allowed by EPA guidance and the
CAA.
5. Success of compacts depends on active and sustained
participation by all stakeholders.
6. Compact areas (as well as non-compact areas) that are
maintenance areas for the 1-hour ozone standard would still be subject
to transportation conformity requirements for the 1-hour standard while
the maintenance plan for the area is still in force under section 175A
of the CAA. (Note that EPA has proposed that when it revokes the 1-hour
ozone standard, transportation conformity under the 1-hour standard
would no longer apply to 1-hour maintenance areas.)
7. Compact areas in the Ozone Transport Region are still subject to
nonattainment NSR in accordance with section 184(b)(2) of the CAA for
so long as the 1-hour ozone NAAQS continues to apply.
8. Because they are not considered nonattainment for the 8-hour
ozone NAAQS until the effective date, compact areas are not eligible
for Congestion Mitigation and Air Quality Improvement Program (CMAQ)
funds for purposes of the 8-hour ozone NAAQS.
9. Compact areas have an aggressive, accelerated program of
milestones to meet. If an area misses a milestone, its nonattainment
designation will take effect, and as such, will be subject to all of
the requirements for nonattainment areas.
VIII. Statutory and Executive Order Reviews
Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate areas as attaining or not attaining that NAAQS. The CAA
then specifies requirements for areas based on whether such areas are
attaining or not attaining the NAAQS. This proposed rule provides
flexibility for areas that have entered into a compact and take early
action to achieve emissions reductions necessary to attain the 8-hour
ozone standard. This action proposes to defer the effective date of the
nonattainment designation for these areas and would allow these areas
to adopt control requirements agreed to by the affected localities.
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is not a ``significant regulatory action''
because none of the above factors applies. As such, this proposed rule
was not formally submitted to OMB for review.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an Agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
Act or any other statute unless the Agency certifies the rule will not
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business that
is a small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards. (See 13 CFR 121.); (2) a
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this rule 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, this rule would defer the effective date of the nonattainment
designation for areas that implement control measures and achieve
emissions reductions earlier than otherwise required by the CAA in
order to attain the 8-hour ozone NAAQS. In addition, States and local
areas that have entered into compacts with EPA have the flexibility to
decide what to regulate in their communities.
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
[[Page 70118]]
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
The EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any 1 year. Today's rule is not subject to the requirements
of sections 202 and 205 of the UMRA.
The CAA requires States to develop plans, including control
measures, based on their designations and classifications. In this
rule, EPA is deferring the effective date of nonattainment designations
for certain areas that have entered into compacts with us. This rule is
not establishing a specific requirement for States to submit SIPs, nor
does it impose any regulatory requirements. However, even if this rule
did establish such a requirement, it is questionable whether a
requirement to submit a SIP revision would constitute a Federal mandate
in any case. The obligation for a State to submit a SIP that arises out
of section 110 and part D of the CAA is not legally enforceable by a
court of law, and at most is a condition for continued receipt of
highway funds. Therefore, it is possible to view an action requiring
such a submittal as not creating any enforceable duty within the
meaning of section 421(5)(9a)(I) of UMRA (2 U.S.C. 658(a)(I)). Even if
it did, the duty could be viewed as falling within the exception for a
condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA
(2 U.S.C. 658(5)(a)(i)(I)).
In the proposal, EPA has determined that this rule contains no
regulatory requirements that may significantly or uniquely affect small
governments, including Tribal governments. Nonetheless, EPA carried out
consultations with governmental entities affected by this rule,
including States and local air pollution control agencies.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This 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. Finally, the CAA establishes the
scheme whereby States take the lead in developing plans to meet the
NAAQS. This proposed 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 proposed
rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA discussed the compact program with representatives of State
and local air pollution control agencies, as well as the Clean Air Act
Advisory Committee, which is also composed of State and local
representatives.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have ``Tribal implications'' as specified in Executive Order 13175.
This proposed rule concerns the deferral of the effective date of
nonattainment designation of the 8-hour ozone standard in compact areas
that do not meet that standard, but continue to meet compact
milestones. The CAA provides for States and Tribes to develop plans to
regulate emissions of air pollutants within their jurisdictions. Early
Action Compact areas that would be affected by this proposed rule would
be required to develop and submit local plans for adoption and
implementation of the 8-hour ozone standard earlier than the CAA
requires. These plans would be submitted to EPA as SIP revisions in
December 2004 rather than in April 2007. The Tribal Authority Rule
(TAR) gives Tribes the opportunity to develop and implement CAA
programs such as the 8-hour ozone NAAQS, but it leaves to the
discretion of the Tribe whether to develop these programs and which
programs, or appropriate elements of a program, they will adopt.
This proposed rule does not have Tribal implications as defined by
Executive Order 13175. It does not have a substantial direct effect on
one or more Indian Tribes, since no Tribe has implemented a CAA program
to attain the 8-hour ozone NAAQS at this time or has participated in a
compact. Furthermore, this proposed rule does not affect the
relationship or distribution of power and responsibilities between the
Federal government and Indian Tribes. The CAA and the TAR establish the
relationship of the Federal government and Tribes in developing plans
to attain the NAAQS, and this proposed rule does nothing to modify that
relationship. Because this proposed rule does not have Tribal
implications, Executive Order 13175 does not apply.
Although Executive Order 13175 does not apply to this proposed
rule, EPA did outreach to Tribal representatives to inform them about
the compact program, its impact on designations, and this proposed
rule. The EPA supports a national ``Tribal Designations and
Implementation Work Group'' which provides an open forum for all Tribes
to voice concerns to EPA about the designation and implementation
process for the 8-hour ozone standard. These discussions have given EPA
valuable information about Tribal concerns regarding designations and
implementation of the 8-hour ozone NAAQS. The EPA has encouraged Tribes
to participate in the national public meetings held to take comment on
early approaches to the proposed rule. Several Tribes made public
comments at the April 2002 public meeting in Tempe, Arizona. The EPA
specifically solicits additional comment on this proposed rule from
Tribes.
[[Page 70119]]
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children From Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The proposed rule is not subject to Executive Order 13045 because
the Agency does not have reason to believe the environmental health
risks or safety risks addressed by this rule present a disproportionate
risk to children. Nonetheless, we have evaluated the environmental
health or safety effects of the 8-hour ozone NAAQS on children. The
results of this evaluation are contained in 40 CFR part 50, NAAQS for
Ozone, Final Rule (62 FR 38855-38896; specifically, 62 FR 38854, 62 FR
38860 and 62 FR 38865).
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions That Significantly Affect
Energy Supply, Distribution, or Use,'' (66 FR 28355, May 22, 2001)
because it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
Information on the methodology and data regarding the assessment of
potential energy impacts is found in Chapter 6 of U.S. EPA 2002, Cost,
Emission Reduction, Energy, and Economic Impact Assessment of the
Proposed Rule Establishing the Implementation Framework for the 8-Hour,
0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the
Innovative Strategies and Economics Group, Office of Air Quality
Planning and Standards, Research Triangle Park, N.C. April 24, 2003.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Pub. L. No. 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by VCS bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable VCS.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any VCS.
The EPA will encourage States that have compact areas to consider
the use of such standards, where appropriate, in the development of
their SIPs.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionate high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations.
The EPA believes that this proposed rule should not raise any
environmental justice issues. The health and environmental risks
associated with ozone were considered in the establishment of the 8-
hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with
an adequate margin of safety.
List of Subjects in 40 CFR Part 81
Air pollution control, Environmental protection.
Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f;
42 U.S.C. 7601(a)(1).
Dated: November 11, 2003.
Jeffrey R. Holmstead,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 03-31109 Filed 12-15-03; 8:45 am]
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