[Federal Register Volume 69, Number 183 (Wednesday, September 22, 2004)]
[Rules and Regulations]
[Pages 56697-56711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21184]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[OAR-2003-0083; FRL-7816-2]
Air Quality Classifications for the 8-Hour Ozone National Ambient
Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Clean Air Act (CAA) authorizes EPA to reclassify certain
ozone nonattainment areas shortly after
[[Page 56698]]
the initial classification for such areas. In the April 30, 2004
Federal Register action establishing the 8-hour ozone designations and
classifications, we described this reclassification process and listed
criteria that we intended to use to evaluate a reclassification
request. Requests to reclassify ozone nonattainment areas from moderate
to marginal were submitted by the respective States for the following
areas: Cass and Muskegon Counties, Michigan; Detroit, Michigan;
Greensboro, North Carolina; Kent/Queen Anne Counties, Maryland;
Lancaster, Pennsylvania; LaPorte, Indiana; Memphis, Arkansas/Tennessee;
and Richmond, Virginia. This rule reclassifies certain areas that are
designated nonattainment for the 8-hour ozone national ambient air
quality standard (NAAQS).
DATES: Effective Date: This final rule is effective on November 22,
2004.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. OAR 2003-0083 (Designations). All documents in the docket
are listed in the EDOCKET index at http://www.epa.gov/edocket. Although
listed in the index, some information is not publicly available, i.e.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard
copy at the Docket, EPA/DC, EPA West, Room B102, 1301 Constitution
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the Office of Air and Radiation Docket and
Information Center is (202) 566-1742. In addition, we have placed a
copy of the rule and a variety of materials regarding designations on
EPA's designation Web site at: http://www.epa.gov/oar/oaqps/glo/designations. Materials relevant to Early Action Compact (EAC) areas
are on EPA's Web site at: http://www.epa.gov/ttn/naaqs/ozone/eac/wl040218_eac_resources.pdf.
FOR FURTHER INFORMATION CONTACT: Ms. Annie Nikbakht, Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency,
Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919)
541-5246 or by e-mail at: [email protected]. You may also contact
Mr. Doug Grano, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Mail Code C539-02, Research Triangle
Park, NC 27711, phone number (919) 541-3292 or by e-mail at:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
The following is an outline of the preamble.
I. What is the Purpose of this Document?
II. How is Ground-Level Ozone Formed?
III. What are the Health Concerns Addressed by the 8-Hour Ozone
Standard?
IV. What is the Chronology of Events Leading Up to This Rule?
V. What are the CAA Requirements for Air Quality Classifications?
VI. What are the Requirements for Reclassifying 8-Hour Ozone
Nonattainment Areas?
VII. What Reclassification Requests Did EPA Receive and What Action
is EPA Taking on the Requests?
VIII. Does This Action Impact the Deferred Effective Date of
Nonattainment Designations for the Greensboro EAC Area?
IX. If an Area is Bumped Down to Marginal, then Misses the
Attainment Date and is Bumped Up from Moderate, What Due Dates
Apply?
X. Statutory and Executive Order Reviews
I. What Is the Purpose of This Document?
The purpose of this document is to take action on requests from
States to reclassify certain areas with respect to the 8-hour ground-
level ozone NAAQS. The EPA is approving the requests for the following
areas: Cass and Muskegon Counties, Michigan; Detroit, Michigan;
Greensboro, North Carolina; Kent/Queen Anne Counties, Maryland;
Lancaster, Pennsylvania; LaPorte, Indiana; Memphis, Arkansas/Tennessee;
and Richmond, Virginia.
II. How Is Ground-Level Ozone Formed?
Ground-level ozone (sometimes referred to as smog) is formed by the
reaction of volatile organic compounds (VOCs) and oxides of nitrogen
(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 sources, collectively referred to as area sources. Ozone is
predominately a summertime air pollutant. Changing weather patterns
contribute to yearly differences in ozone concentrations from region to
region. Ozone and the pollutants that form ozone also can be
transported into an area from pollution sources found hundreds of miles
upwind.
III. What Are the Health Concerns Addressed by the 8-Hour Ozone
Standard?
During the hot summer months, ground-level ozone reaches unhealthy
levels in several parts of the country. Ozone is a significant health
concern, particularly for children and people with asthma and other
respiratory diseases. Ozone has also been associated with increased
hospitalizations and emergency room visits for respiratory causes,
school absences, and reduced activity and productivity because people
are suffering from ozone-related respiratory symptoms.
Breathing ozone can trigger a variety of health problems. Ozone can
irritate the respiratory system, causing coughing, throat irritation,
an uncomfortable sensation in the chest, and/or pain when breathing
deeply. Ozone can worsen asthma and possibly other respiratory
diseases, such as bronchitis and emphysema. When ozone levels are high,
more people with asthma have attacks that require a doctor's attention
or the use of additional medication. 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. In addition, breathing 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 the
health effects of ozone can be found at the following Web site: http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_index.html.
IV. What Is the Chronology of Events Leading Up to This Rule?
In 1979, EPA promulgated the 0.12 parts per million (ppm) 1-hour
ozone standard, (44 FR 8202, February 8, 1979). On July 18, 1997, we
promulgated a revised ozone standard of 0.08 ppm, measured over an 8-
hour period, i.e., the 8-hour standard (62 FR 38856). The 8-hour NAAQS
rule was challenged by numerous litigants and in
[[Page 56699]]
May 1999, the U.S. Court of Appeals for the DC Circuit issued a
decision remanding, but not vacating, the 8-hour ozone standard. Among
other things, the Court recognized that EPA is required to designate
areas for any new or revised NAAQS in accordance with the CAA and
addressed a number of other issues, which are not related to
designations. American Trucking Assoc. v. EPA, 175 F.3d 1027, 1047-48,
on rehearing 195 F.3d 4 (D.C. Cir., 1999). We sought review of two
aspects of that decision in the U.S. Supreme Court. In February 2001,
the Supreme Court upheld our authority to set the NAAQS and remanded
the case back to the D.C. Circuit for disposition of issues the Court
did not address in its initial decision. Whitman v. American Trucking
Assoc., 121 S.Ct. 903, 911-914, 916-919 (2001) (Whitman). In March
2002, the D.C. Circuit rejected all remaining challenges to the 8-hour
ozone standard. American Trucking Assoc. v. EPA, 283 F.3d 355 (D.C.
Cir., 2002).
The process for designations following promulgation of a NAAQS is
contained in section 107(d)(1) of the CAA. The CAA defines
``nonattainment area'' in section 107(d)(1)(A)(i) as an area that is
violating an ambient standard or is contributing to a nearby area that
is violating the standard. If an area meets this definition, EPA is
obligated to designate the area as nonattainment.
The final rule establishing designations for all areas of the
country was signed by the EPA Administrator on April 15, 2004 and
published in the Federal Register on April 30, 2004 (69 FR 23858). That
rule also sets forth the classifications for certain ozone
nonattainment areas. Section 181(a) of the CAA provides that areas will
be classified at the time of designation. For further information on
designations and classifications, the reader should consult the April
30, 2004 rulemaking action. Classifications are discussed below.
V. What Are the CAA Requirements for Air Quality Classifications?
The CAA contains two sets of provisions-subpart 1 and subpart 2-
that address planning and control requirements for ozone nonattainment
areas. Both are found in title I, part D. Subpart 1 (which we refer to
as ``basic'' nonattainment) contains general, less prescriptive,
requirements for nonattainment areas. Subpart 2 (which we refer to as
``classified'' nonattainment) provides more specific requirements for
ozone nonattainment areas.\1\ Some areas are subject only to the
provisions of subpart 1. Other areas are subject to the provisions of
subpart 2.\2\ Subpart 2 areas are classified based on each area's
design value. Control requirements are linked to each classification.
Areas with more serious ozone pollution are subject to more prescribed
requirements. Under our 8-hour ozone implementation rule, signed on
April 15, 2004, an area was classified under subpart 2 based on its 8-
hour design value \3\ if it had a 1-hour design value at or above 0.121
ppm (69 FR 23954 and 40 CFR 51.902). All other areas are covered under
subpart 1.
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\1\ State Implementation Plans; General Preamble for the
Implementation of Title I of the CAA Amendments of 1990; Proposed
Rule.'' April 16, 1992 (57 FR 13498 at 13501 and 13510).
\2\ Areas subject to subpart 2 are also subject to subpart 1
requirements that are not pre-empted by a more specific mandate
under subpart 2.
\3\ For the 1-hour ozone NAAQS, design value is defined at 40
CFR 51.900(c). For the 8-hour ozone NAAQS, design value is defined
at 40 CFR 51.900(d).
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Any area with a 1-hour ozone design value (based on the most recent
3 years of data) that meets or exceeds the statutory level of 0.121 ppm
that Congress specified in Table 1 of section 181 is classified under
subpart 2 and is subject to the control obligations associated with its
classification.\4\ Subpart 2 areas were classified as marginal,
moderate, serious, or severe based on the area's 8-hour design value
calculated using the most recent 3 years of data.\5\ As described in
the Phase 1 implementation rule, since Table 1 is based on 1-hour
design values, we promulgated in that rule a regulation translating the
thresholds in Table 1 of section 181 from 1-hour values to 8-hour
values. (See Table 1, below, ``Classification for 8-Hour Ozone NAAQS''
from 40 CFR 51.903.)
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\4\ In the Phase 2 implementation rule, we will address the
control obligations that apply to areas under both subpart 1 and
subpart 2.
\5\ At this time, there are no areas with design values in the
extreme classification for the 8-hour ozone standard.
Table 1.--Classification for 8-Hour Ozone NAAQS
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Maximum period for
attainment in state
8-hour design plans (years after
Area class value (ppm effective date of
ozone) nonattainment
designation for 8-hour
NAAQS)
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Marginal............................ from............................. 0.085 3
up to *.......................... 0.092
Moderate............................ from............................. 0.092 6
up to *.......................... 0.107
Serious............................. from............................. 0.107 9
up to *.......................... 0.120
Severe-15........................... from............................. 0.120 15
up to *.......................... 0.127
Severe-17........................... from............................. 0.127 17
up to *.......................... 0.187
Extreme............................. equal to or above................ 0.187 20
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* But not including.
[[Page 56700]]
VI. What Are the Requirements for Reclassifying 8-Hour Ozone
Nonattainment Areas?
Under section 181(a)(4), an ozone nonattainment area may be
reclassified ``if an area classified under paragraph (1) (Table 1)
would have been classified in another category if the design value in
the area were 5 percent greater or 5 percent less than the level on
which such classification was based.'' The EPA previously described
criteria to implement the section 181(a)(4) provisions in a final rule
designating and classifying areas for the 1-hour ozone standard
published on November 6, 1991 (56 FR 56698). As stated in that final
rule, the provisions of section 181(a)(4) set out general criteria and
grant the Administrator broad discretion in making or determining not
to make, a reclassification. As part of the 1991 action, EPA developed
more specific criteria to evaluate whether it is appropriate to
reclassify a particular area. The EPA also described these criteria in
the April 30, 2004 final rule. The general and specific criteria are as
follows:
General: The EPA may consider the number of exceedances of the
national primary ambient air quality standard for ozone in the area,
the level of pollution transport between the area and other affected
areas, including both intrastate and interstate transport, and the mix
of sources and air pollutants in the area.
Request by State: The EPA does not intend to exercise its authority
to bump down areas on EPA's own initiative. Rather, EPA intends to rely
on the State to submit a request for a bump down. A Tribe may also
submit such a request and, in the case of a multi-state nonattainment
area, all affected States must submit the reclassification request.
Discontinuity: A five percent reclassification must not result in
an illogical or excessive discontinuity relative to surrounding areas.
In particular, in light of the area-wide nature of ozone formation, a
reclassification should not create a ``donut hole'' where an area of
one classification is surrounded by areas of higher classification.
Attainment: Evidence should be available that the proposed area
would be able to attain by the earlier date specified by the lower
classification in the case of a bump down.
Emissions reductions: Evidence should be available that the area
would be very likely to achieve the appropriate total percent emission
reduction necessary in order to attain in the shorter time period for a
bump down.
Trends: Near- and long-term trends in emissions and air quality
should support a reclassification. Historical air quality data should
indicate substantial air quality improvement for a bump down. Growth
projections and emission trends should support a bump down. In
addition, we will consider whether vehicle miles traveled and other
indicators of emissions are increasing at higher than normal rates.
Years of data: For the 8-hour ozone standard, the 2001-2003 period
is central to determining classification. Data from 2004 may be used to
corroborate a bump down request but should not be the sole foundation
for the bump down request.
Limitations on Bump Downs: An area may only be reclassified to the
next lower classification. An area cannot present data from other years
as justification to be reclassified to an even lower classification. In
addition, section 181(a)(4) does not permit moving areas from subpart 2
into subpart 1.
In 1991, EPA approved reclassifications when the area met the first
requirement (a request by the State to EPA) and at least some of the
other criteria and did not violate any of the criteria (emissions,
reductions, trends, etc.). In our April 30, 2004 final rule on
designations and classifications, we stated our intention to use this
method and these criteria once again to evaluate reclassification
requests under section 181(a)(4), with minor changes described in that
action. In that action, we also described how we applied these criteria
in 1991. For additional information, see section 5, ``Areas requesting
a 5% downshift per Sec. 181(a)(4) and EPA's response to those
requests,'' of the Technical Support Document, October 1991, for the
1991 rule. [Docket A-90-42A.]
The April 30, 2004 action invited States to submit the
reclassification requests within 30 days of the effective date of the
designations and classifications. The effective date was June 15 which
means that reclassification requests were to be submitted by July 15,
2004. This relatively short timeframe is necessary because section
181(a)(4) only authorizes the Administrator to make such
reclassifications within 90 days after the initial classification,
September 15, 2004.
As described in the April 30, 2004 action, an ozone nonattainment
area may also request reclassification under section 181(a)(4) to the
next higher classification. While no State requested a reclassification
upward during this time period, EPA notes that a State may make a
request for a higher classification at any time under section
181(b)(3). This provision directs EPA to grant a State's request for a
higher classification and to publish notice of the request and EPA's
approval.
VII. What Reclassification Requests Did EPA Receive and What Action Is
EPA Taking on the Requests?
This section describes each reclassification request received by
EPA and the results of EPA's evaluation of each request. As described
below, EPA evaluated the requests with respect to the criteria
described in section IV of this notice. More detailed information is
available in EPA's Technical Support Document for Five Percent
Reclassifications, September 2004, which contains the requests,
supporting documentation, and EPA's evaluation.
Cass County, Michigan
The EPA designated this area as a moderate ozone nonattainment on
April 15, 2004 based on its 8-hour ozone value of 93 parts per billion
(ppb). On July 15, 2004 the Michigan Department of Environmental
Quality submitted a request to reclassify Cass County from moderate
ozone nonattainment to marginal ozone nonattainment. Cass County has
small population and very low emissions. Reclassification to marginal
will not result in a discontinuity since all of the counties
immediately bordering Cass County are either designated as attainment
or are subpart 1 nonattainment.
The Lake Michigan Air Directors Consortium (LADCo) used modeling
results performed to support the 1-hour ozone attainment demonstration
for the Lake Michigan area and applied 8-hour ozone metrics. As noted
in Michigan's petition, the LADCo modeling was designed to assess 1-
hour ozone and, as such, there are some limitations with using it to
assess 8-hour ozone. On the other hand, it should be noted that three
of the four modeled episodes are representative periods for high 8-hour
ozone and basecase model performance for 8-hour ozone was found to be
as good as (or better than) that for 1-hour ozone. The local scale
LADCo modeling indicates that Cass County will be in attainment (81
ppb) in 2007. Additionally, regional scale modeling from the proposed
Clean Air Interstate Rule (CAIR) indicates the area will be in
attainment (83 ppb) in 2010.
The emissions trend is expected to significantly decrease due to
the implementation of various regional rules, including the
NOX SIP Call (63 FR 57356) and rules contained in 1-hour
ozone attainment plans in the Lake Michigan area. The trend in the 4th
[[Page 56701]]
highest values for ozone from 2002, 2003 and 2004 show a decrease from
103 ppb, to 89 ppb and, 74 ppb, respectively. Further, it can be
expected that ozone values will continue at these lower levels due to
the implementation of national and regional rules.
In summary, the following factors support the request for
reclassification to marginal for Cass County: The design value of 93
ppb meets our criteria to qualify for consideration of bump down, local
and regional modeling analyses indicate air quality will be improving
over the next several years and support attainment by the marginal area
attainment date, a short term trends analysis shows ozone values
decreasing, and additional reductions from regional and national
regulations will continue this trend in lowering ambient ozone values.
Thus, the reclassification request for Cass County meets all of the
criteria (request, discontinuity, attainment, emission reductions,
trends, and data) EPA established (69 FR 23863). Therefore, EPA is
approving the reclassification request for Cass County.
Detroit-Ann Arbor, Michigan
The EPA designated this area as moderate on April 15, 2004 due to
8-hour values (design value is 97 ppb). On July 15, 2004, the Michigan
Department of Environmental Quality (MDEQ) submitted a request to
reclassify Detroit-Ann Arbor (Southeast Michigan) area from moderate to
marginal ozone nonattainment. The Southeast Michigan Council of
Governments (SEMCoG)is the lead local planning agency for the Detroit-
Ann Arbor area. The MDEQ and SEMCoG worked jointly to prepare the
reclassification request. Reclassification will not create a
discontinuity since all adjacent nonattainment areas to the Detroit-Ann
Arbor area are subpart 1 nonattainment.
Under section 181(a)(4), an ozone nonattainment area may be
reclassified ``if an area classified under paragraph (1) (Table 1)
would have been classified in another category if the design value in
the area were 5 percent greater or 5 percent less than the level on
which such classification was based.'' In the April 30, 2004 notice, we
indicated that an area with a moderate design value of 96 ppb (or less)
would be eligible to request a bump down because five percent less than
96 ppb is 91 ppb, a marginal design value. In their petition, Michigan
requested EPA to use a rounding convention that would allow the ``5
percent'' calculation to be a factor of up to 5.49 percent. After
reviewing the methodology for handling of percentages in EPA's
``Guideline on Data Handling Conventions For the 8-Hour Ozone NAAQS''
(December 1998), EPA believes values up to 5.4% are acceptable for the
bump down calculation. The Guideline indicates percent values are
rounded up for the purpose of determining data completeness
(specifically the Guideline states, 74.5% is 75% and 89.5 is 90%).
Since there is nothing in the Guideline to suggest this percentage
rounding convention is inappropriate for other calculations involving
ambient air quality data, EPA believes it is acceptable for the bump
down calculation. Using 0.054 as 5% and 97 ppb (moderate) as the design
value, then (0.054) * 97 = 91.8, which is a marginal value. Thus, the
area is eligible to request a bump down.
Modeling by LADCo to support the 1-hour ozone attainment
demonstration for the Lake Michigan area was applied to 8-hour ozone
metrics. This modeling indicates that the Detroit-Ann Arbor area may be
very close to attainment (85 ppb) in 2007. However, as noted in
Michigan's petition, the LADCO subregional modeling was designed to
assess 1-hour ozone and, as such, there are some limitations with using
it to assess 8-hour ozone. For example, the episodes and modeling
domain were selected for the Lake Michigan region and may not
accurately represent other cities in the modeling domain, such as
Detroit. On the other hand, it should be noted that three of the four
modeled episodes are representative periods for high 8-hour ozone and
basecase model performance for 8-hour ozone was found to be as good as
(or better than) that for 1-hour ozone. Additional, regional scale,
CAIR modeling (January 2004 proposal) indicates the area will be in
attainment (84 ppb) by 2010. The CAIR modeling, however, was not
designed to provide results for years prior to 2010. In summary, EPA
believes the LADCo and CAIR modeling analyses are not conclusive with
respect to the area's attainment status in 2007. Although neither
analysis is as comprehensive an assessment as would be expected with a
SIP attainment demonstration, they do provide support for a decision to
reclassify the area. Both modeling analyses indicate air quality will
be improving over the next several years. Further decreases can be
expected once MDEQ and SEMCoG have selected control measures for the
area and these measures are implemented.
Emissions reductions are already occurring in various sectors
throughout the area. VOC and NOX from on-road mobile sources
will decline by 40% and 37%, respectively, between 2002 and 2007, even
after accounting for increasing levels of travel. This trend will
continue to 2010, reaching reductions of 54% for both pollutants. Point
sources' emissions of NOX will decline from implementation
of the NOX SIP Call between 2004 and 2007. Additionally,
MDEQ and SEMCoG have committed to evaluating a list of measures
including vehicle inspection and maintenance, lower emitting fuels,
degreasing, architectural and industrial maintenance coatings,
consumer/commercial products, tighter VOC RACT rules, and gas can
replacement. The process for choosing appropriate control measures for
the area will be completed by June 2005. MDEQ and SEMCoG have also
committed to an aggressive schedule to implement controls that will
help the area attain by 2007.
While a long-term trends analysis for the Detroit-Ann Arbor area
does not show a declining trend in ozone values, that can be attributed
to the abnormally high values experienced in the area in June 2003. The
maximum concentration in 2004, to date, is 83 ppb, which may mark the
beginning of at least a short term air quality trend downward. It can
be expected that ozone values will decrease due to the declines in
NOX and VOC emissions described in the preceding paragraph.
In summary, the following factors support the request for downward
revision to the 8-hour ozone classification for Detroit-Ann Arbor area:
the design value of 97 ppb meets our criteria to qualify for
consideration of bump down, local and regional modeling analyses
indicate air quality will be improving over the next several years,
regional and national regulations will continue this trend in lowering
ambient ozone values, the State and local agencies responsible for air
quality planning have committed to an aggressive schedule to identify
and implement controls that will help the area attain by the marginal
attainment date of June 15, 2007. Thus, the request meets certain
criteria EPA established (request, discontinuity, emission reductions,
and data) and does not violate any of the criteria (attainment and
trends). Therefore, EPA is approving the reclassification request for
the Detroit-Ann Arbor area.
Greensboro, North Carolina
The Greensboro area was designated nonattainment for the 8-hour
ozone standard on April 15, 2004 and classified moderate based on a
design value of 93 ppb. The State of North Carolina presented a
petition to EPA, Region 4, requesting downward reclassification of the
Greensboro/Winston-Salem/High Point (Triad)
[[Page 56702]]
ozone nonattainment area from moderate to marginal for the 8-hour
standard. The petition was presented to EPA July 14, 2004.
Reclassification of the Greensboro area to marginal will not create a
discontinuity since surrounding areas would include higher and lower
classifications (the Charlotte area is designated moderate and the
Raleigh area is subpart 1 nonattainment).
Local photochemical grid modeling, developed under the Early Action
Compact (EAC) program, demonstrates attainment by 2007 for the Triad
area which includes the Greensboro area. The modeling was developed
according to EPA's draft 8-hour ozone modeling guidance and was used to
support a deferral of the effective date for the nonattainment area.
Updated local modeling data included in the June 2004 EAC progress
report were referenced to support the attainment criteria of the
reclassification petition. In addition, CAIR modeling analyses (January
2004) show that Greensboro is expected to continue to be in compliance
with the 8-hour ozone standard in 2010.
Expected emissions reductions are detailed in the petition and the
EAC progress report submittals and include, for example, an inspection
and maintenance program phasing in between July 2002 and 2005.
Emissions data demonstrate a decrease in NOX emissions of
about 382 tons per day between 2000 and 2007. Beyond 2007, further
NOX emissions reductions are expected due to the Federal,
State and local control measures. VOC emissions will decrease by 20
tons per day between 2000 and 2007 with additional future reductions
expected. An aggressive control program is being implemented throughout
the State that affects stationary and mobile sources. Since 1998,
monitored ozone levels at the Greensboro area monitors have steadily
decreased and support reclassification.
In summary, the reclassification request for Greensboro meets all
of the criteria EPA established (69 FR 23863), including request by the
State, supporting trends in emissions and air quality, and modeling
evidence that the area would be able to attain by the earlier date
(2007). The EPA is approving the reclassification request for
Greensboro because the request meets all of the criteria EPA
established.
Kent/Queen Anne Counties, Maryland
The EPA designated this area as moderate on April 15, 2004 due to
8-hour ozone values (design value is 95 ppb). On July 15, 2004 the
Maryland Department of the Environment submitted a request to
reclassify Kent and Queen Anne's Counties from moderate to marginal
ozone nonattainment. Kent and Queen Anne's Counties, MD are located on
Maryland's eastern shore. Reclassification of Kent and Queen Anne's
Counties will not create a discontinuity since there would be no area
of one classification surrounded by areas of a higher classification.
All of the other counties immediately bordering Kent and Queen Anne's
Counties are either designated as attainment or moderate nonattainment.
Maryland submitted a modeling study that was performed as part of
an earlier effort related to the Early Action Compact (EAC) program.
This modeling was performed in accordance with EPA guidance. Initially,
however, Maryland had applied the relative reduction factor (RRF) to
the wrong ozone design value year. This was remedied by applying the
RRF to the larger of the 2000 or 2003 ozone design value. When this
correction was made, a value of 82.3 ppb was obtained, demonstrating
that these counties should attain the ozone standard by 2007. The EPA's
January 2004 CAIR modeling projects nonattainment for Kent County, MD
in the 2010 attainment year (86 ppb). Because EPA guidance indicates
that smaller scale modeling is generally more appropriate for
attainment demonstrations, EPA believes that the local scale air
quality modeling (EAC modeling) which projects attainment in 2007
should carry more weight. In summary, both modeling analyses indicate
air quality will be improving over the next several years and EPA
believes the EAC modeling analysis strongly indicates the area will
attain the ozone standard by 2007.
The emissions trend is expected to decrease due to the
implementation of various regional rules, including the NOX
SIP Call and regional rules contained in 1-hour ozone attainment plans
in the Baltimore and Washington D.C. area. In addition, because the
state of Maryland is located in the statutorily-established Ozone
Transport Region (OTR), Kent and Queen Anne's Counties have been
implementing several moderate nonattainment area level emission.
Moderate area OTR controls include RACT, NSR, and Stage II comparable
measures. Queen Anne's county, being part of the 1990 Baltimore
Metropolitan Statistical Area (MSA) was also required under the OTR
requirements, to implement a high enhanced I/M program and has been
doing so.
The 17-year ozone air quality trends in Kent county (Queen Anne's
does not have an ozone monitor) are relatively flat. The last two years
of complete data, however, may mark the beginning of at least a short
term air quality trend downward. The 4th highest values for ozone from
2002 and 2003 are 103 and 86 ppb, respectively. Further, it can be
expected that ozone values will decline due to the implementation of
national and regional rules relative to ozone levels in recent years.
In summary, the following factors support the request for
reclassification to marginal for Kent and Queen Anne's Counties: the
design value of 95 ppb meets our criteria to qualify for consideration
of bump down, local modeling provides strong evidence that the area
will attain by 2007, additional reductions from regional and national
regulations should lower ambient ozone values. Thus, the request meets
certain criteria EPA established (request, discontinuity, emission
reductions, attainment, and data) and does not violate any of the
criteria (trends). Therefore, EPA is approving the reclassification
request for Kent and Queen Anne's Counties.
Lancaster, Pennsylvania
The EPA designated this area as moderate on April 15, 2004 due to
8-hour ozone values (design value is 92 ppb). On July 9, 2004 the
Pennsylvania Department of Environmental Protection submitted a request
to reclassify Lancaster County from moderate to marginal ozone
nonattainment. Lancaster, PA is a single county 8 hour ozone
nonattainment area located immediately west of the Philadelphia
moderate 8 hour ozone nonattainment area and immediately north of the
Baltimore moderate 8 hour ozone nonattainment area. The counties
adjacent to and surrounding Lancaster on its west and north are
designated subpart 1 (``basic'') 8 hour ozone nonattainment areas.
Reclassification of Lancaster County will not create a discontinuity
since there would be no area of one classification surrounded by areas
of a higher classification.
The EPA's January 2004 CAIR modeling projects attainment for
Lancaster County, PA in the 2010 attainment year (83 ppb). No local air
quality modeling is available. The EPA believes the CAIR modeling
analysis is not conclusive with respect to Lancaster's attainment
status in 2007; the analysis is not as comprehensive an assessment as
would be expected with a SIP attainment demonstration. However the CAIR
analysis provides support for a decision to reclassify the area since
it indicates air quality will be improving over the next several years.
[[Page 56703]]
The emissions trend is expected to decrease due to the
implementation of various regional rules, including the NOX
SIP Call and rules contained in 1-hour ozone attainment plans in the
Baltimore, Philadelphia and Washington, DC areas. In addition, because
the state of Pennsylvania is located in the statutorily-established
Ozone Transport Region (OTR), Lancaster County has been implementing
moderate nonattainment area level emission controls. Moderate area OTR
controls include RACT, NSR, and Stage II comparable measures. In
addition, Lancaster has an OTR enhanced I/M program that became state
law in November 2003 and has been implemented since February 2004.
The area's design value is 92 ppb, just one ppb above the marginal
classification design value based on 2001-2003 data. The 17-year ozone
air quality trends in Lancaster County are relatively flat. The short-
term trend in the 4th highest 8-hour ozone value over the last 3 years
is downward (97, 96, and 83 ppb). Further, it can be expected that
ozone values will decline due to the implementation of national and
regional rules relative to ozone levels in recent years.
In summary, the following factors support the request for
reclassification to marginal for Lancaster County: the design value of
92 ppb meets our criteria to qualify for consideration of bump down,
CAIR modeling indicates air quality will be improving over the next
several years, and additional reductions from regional and national
regulations should lower ambient ozone values. Thus, the request meets
certain criteria EPA established (request, discontinuity, emission
reductions, and data) and does not violate any of the criteria
(attainment and trends). Therefore, EPA is approving the
reclassification request for Lancaster County.
LaPorte, Indiana
The EPA designated this area as moderate on April 15, 2004 due to
8-hour ozone values (design value is 93 ppb). On July 15, 2004 the
Indiana Department of Environmental Management submitted a request to
reclassify LaPorte County from moderate to marginal ozone
nonattainment. LaPorte County is highly impacted by transport due to
the Lake Michigan ozone phenomenon. LaPorte County has few major
sources. Reclassification of LaPorte County to marginal will not result
in a discontinuity since the only area that is adjacent to Laporte
County that has a higher classification is the Chicago-Gary moderate
nonattainment area. All of the other counties immediately bordering
LaPorte County are either designated as attainment or are subpart 1
nonattainment.
Modeling by LADCo to support the 1-hour ozone attainment
demonstration for the Lake Michigan area was applied to 8-hour ozone
metrics. As noted in Michigan's petition, the LADCo modeling was
designed to assess 1-hour ozone and, as such, there are some
limitations with using it to assess 8-hour ozone. On the other hand, it
should be noted that three of the four modeled episodes are
representative periods for high 8-hour ozone and basecase model
performance for 8-hour ozone was found to be as good as (or better
than) that for 1-hour ozone. The local scale LADCo modeling indicates
that air quality is expected to improve (from 93 to 89 ppb) in LaPorte
County, but may not reach attainment in 2007. Since this modeling was
performed before the Heavy Duty Engine rule was proposed, it does not
reflect emission reductions from that national program. Use of a more
recent emission inventory and base design value would likely result in
lower predicted concentrations. Additional, regional scale, modeling
from the CAIR proposal indicates the area will be in attainment (84
ppb) by 2010. The CAIR modeling, however, was not designed to provide
results for years prior to 2010. In summary, EPA believes the LADCo and
CAIR modeling analyses are not conclusive with respect to LaPorte's
attainment status in 2007. Although neither analysis is as
comprehensive an assessment as would be expected with a SIP attainment
demonstration, they do provide support for a decision to reclassify the
area. Both modeling analyses indicate air quality will be improving
over the next several years.
The emissions trend is expected to significantly decrease due to
the implementation of various regional rules, including the
NOX SIP Call and rules contained in 1-hour ozone attainment
plans in the Lake Michigan area. The trend in the 4th highest values
for ozone from 2002, 2003 and 2004 show a large decrease at both the
Michigan City and the City of LaPorte monitors from 107/100 ppb in
2002, to 82/84 ppb and, most recently, 68/71 ppb. Further, it can be
expected that ozone values will continue at these lower levels due to
the implementation of national and regional rules.
In summary, the following factors support the request for downward
revision to the 8-hour ozone classification for LaPorte County: The
design value of 93 ppb meets our criteria to qualify for consideration
of bump down, local modeling shows that the area will be close to
attainment in 2007, proposed CAIR modeling shows the area will attain
by 2010, a short term trends analysis shows large decreases in ozone
values and additional reductions from regional and national regulations
will support this trend in low ambient ozone values. Thus, the request
meets certain criteria EPA established (request, discontinuity,
emission reductions, trends, and data) and does not violate any of the
criteria (attainment). Therefore, EPA is approving the reclassification
request for LaPorte County.
Memphis, Arkansas/Tennessee
The EPA designated this area as moderate on April 15, 2004 due to
8-hour ozone values (design value is 92 ppb). The States of Tennessee
and Arkansas submitted the petition by the date required. The
petitioners have emphasized that the States of Tennessee and Arkansas,
along with the local governments of Shelby and Crittenden Counties,
have produced a plan of action which will result in real ozone
reductions and attainment by 2007 through an exhaustive collaborative
effort. Reclassification of the Memphis area will not create a
discontinuity since there would be no area of one classification
surrounded by an area of a higher classification.
The modeling submitted showed attainment when using a methodology
for adjusting meteorology. The appropriateness of this method is under
review by EPA. EPA's evaluation of the modeling submitted without a
meteorology adjustment and other assumptions shows the design value
declining to 88 ppb by 2007, which makes notable progress toward
attainment. Also, EPA's CAIR modeling shows the area should have a
design value of 86 ppb by 2010, which also shows notable progress
towards attainment. In addition, the CAIR modeling does not include any
local controls expected prior to 2007. Therefore, local controls could
be expected to further lower the CAIR 2010 design value. Both modeling
analyses indicate more reductions are needed beyond those relied on in
the local modeling in order to attain by 2007. Additional controls
beyond those modeled have been identified in the petition.
Attainment is expected because of the combination of measures to be
implemented and potential measures listed in the petition along with
the commitment of the areas to implement additional measures as needed
to
[[Page 56704]]
achieve attainment As strong support for adequate emission reductions
being implemented, Arkansas is conducting a study with limited
additional modeling which should identify the sources affecting the
monitors more precisely. Arkansas, Tennessee and the Memphis-Shelby
County local agency are committed to assess the results of the study
and implement additional controls beyond those modeled or identified in
the reclassification petition by 2006, if required by the study
results. This commitment is made by the Governors, State, and Local
officials of both States as signatories to the petition. In addition,
the State of Tennessee and the City of Memphis/Shelby County have
submitted letters reinforcing the commitments to adopt and implement
additional measures as the modeling and study results might identify.
The petition lists 19 emission reduction measures for potential
implementation at the state and local level. These measures, when
combined with potential Federal measures expected during the period,
could bring the area into attainment by 2007. Tennessee is considering
measures such as NOX Reasonably Available Control Technology
rules for stationary sources, expanded Stage I vapor recovery,
emissions inspections, and anti-tampering measures. Memphis-Shelby
county is considering measures such as diesel engine idling limits,
reduced speed limits, controlled burning restrictions, and On Board
Diagnostic II emission testing. Arkansas is considering measures such
as Stage I vapor recovery, truck stop electrification, and replacement/
retrofit construction equipment engines. The EPA has provided Arkansas
with $100,000 in funds to implement truck stop electrification in
Crittenden County.
The area's design value is 92 ppb, one ppb above the marginal
classification design value based on 2001-2003 data. The area has not
had any exceedences at the Crittenden County monitor in 2004 through
September 10; the 4th highest monitor value is 78 ppb. If this value
remains the 4th highest for 2004, the design value will decline to 87,
well within the marginal range and only 3 ppb above the attainment
level. Also, with the monitor values already established for 2002 and
2003 for the Shelby County monitors, the 2004 data, to date, are
indicating attainment. The design value trends for the two Shelby
County monitors have declined since 2000.
The emissions from ozone precursors VOC and NOX from
stationary sources in Shelby County, TN have declined significantly
since 1993. Emissions estimates in the Memphis Early Action compact
March 31, 2004 submittal, indicate that emissions should decrease by
28% for NOX and 19% for VOCs from 2001 to 2007. Tennessee is
included in the NOX SIP Call region and pursuant to the
State plan adopted to meet the SIP Call, the Tennessee Valley Authority
(TVA) Allen Power Plant will reduce NOX emissions by 57.5
tons per day (tpd). We anticipate the 2004 and 2005 design values will
show air quality improvements from these measures. Thus, the air
quality and emissions trends support reclassification.
In summary, the data, analysis, and commitments presented in the
petition support the likelihood of attainment of the 8-hour ozone
standard by 2007 and support the request for downward revision to the
8-hour ozone classification for the Memphis area. Specifically, the
Request by States criteria is satisfied since the petition was
submitted by the governors of Tennessee and Arkansas; the Discontinuity
criteria is satisfied since there would be no area of one
classification surrounded by one or more areas of a higher
classification; the Attainment criteria is not failed since the
modeling shows notable progress toward attainment; the Emissions
Reductions criteria is satisfied because of the emission reductions
available and the commitment by the state and local agencies to adopt
and implement any controls necessary to attain the 8-hour standard
based on a comprehensive study of sources contributing to
nonattainment; the Trends criteria is satisfied since the downward
trends in air quality monitor and emissions data over the time period
to attainment are strong indicators of progress towards attainment; and
the Years of Data criteria is satisfied since the years chosen (2001-
2003) are consistent with the time period used for the designations for
the 8-hour ozone standard. Thus, the request meets certain criteria EPA
established (request, discontinuity, emission reductions, trends, and
data) and does not violate any of the criteria (attainment). Therefore,
EPA is approving the reclassification request for Memphis.
Muskegon County, Michigan
The EPA designated this area as moderate on April 15, 2004 due to
8-hour values (design value is 95 ppb). On July 15, 2004 MDEQ submitted
a request to reclassify Cass County from moderate ozone nonattainment
to marginal ozone nonattainment. Muskegon County is highly impacted by
transport due to the Lake Michigan ozone phenomenon. Muskegon County
has few major sources. Reclassification of Muskegon County to marginal
will not result in a discontinuity since all of the counties
immediately bordering Muskegon County are either designated as
attainment or are subpart 1 nonattainment.
Modeling by LADCo to support the 1-hour ozone attainment
demonstration for the Lake Michigan area was applied to 8-hour ozone
metrics. As noted in Michigan's petition, the LADCo modeling was
designed to assess 1-hour ozone and, as such, there are some
limitations with using it to assess 8-hour ozone. On the other hand, it
should be noted that three of the four modeled episodes are
representative periods for high 8-hour ozone and basecase model
performance for 8-hour ozone was found to be as good as (or better
than) that for 1-hour ozone. The local scale LADCo modeling indicates
that Muskegon County will be near attainment (86 ppb) in 2007. Since
this modeling was performed before the Heavy Duty Engine rule was
proposed, it does not reflect emission reductions from that national
program. Use of a more recent emission inventory and base design value
would likely result in lower predicted concentrations. Additional,
regional scale, modeling from the January 2004 CAIR proposal indicates
the area will be in attainment (82 ppb) by 2010. The CAIR modeling,
however, was not designed to provide results for years prior to 2010.
The EPA believes the LADCo and CAIR modeling analyses are not
conclusive with respect to Muskegon's attainment status in 2007.
Although neither analysis is as comprehensive an assessment as would be
expected with a SIP attainment demonstration, they do provide support
for a decision to reclassify the area. Both modeling analyses indicate
air quality will be improving over the next several years.
The emissions trend is expected to significantly decrease due to
the implementation of various regional rules, including the
NOX SIP Call and rules contained in 1-hour ozone attainment
plans in the Lake Michigan area. The trend in the 4th highest values
for ozone from 2002, 2003 and 2004 show a decrease from 96 ppb, to 94
ppb and, most recently, 70 ppb. Further, it can be expected that ozone
values will continue at these lower levels due to the implementation of
national and regional rules.
In summary, the following factors support the request for downward
revision to the 8-hour ozone classification for Muskegon County: the
design value of 95 ppb meets our
[[Page 56705]]
criteria to qualify for consideration of bump down, local and regional
modeling analyses indicate air quality will be improving over the next
several years, a short term trends analysis shows ozone values
decreasing and additional reductions from regional and national
regulations will continue this trend in lowering ambient ozone values.
Thus, the request meets certain criteria EPA established (request,
discontinuity, emission reductions, trends, and data) and does not
violate any of the criteria (attainment). Therefore, EPA is approving
the reclassification request for Muskegon County.
Richmond, Virginia
The EPA designated this area as moderate on April 15, 2004 due to
8-hour ozone values (design value is 94 ppb). On July 12, 2004 the
Virginia Department of the Environmental Quality submitted a request to
reclassify Richmond from moderate to marginal ozone nonattainment. The
Richmond, VA moderate ozone nonattainment area consists of five
counties (Charles City, Chesterfield, Hanover, Henrico, and Prince
George) and four independent cities (Colonial Heights, Hopewell,
Petersburg, and Richmond). This area is adjacent to the southeast edge
of the Washington D.C. moderate 8-hour ozone nonattainment area. To the
northeast of Richmond, and across the Chesapeake Bay, is the
Philadelphia moderate 8-hour ozone nonattainment area. Richmond is also
adjacent to and located to the northwest of the Norfolk-Virginia Beach,
VA subpart 1 8-hour ozone nonattainment area. Reclassification of the
Richmond area will not create a discontinuity since there would be no
area of one classification surrounded by areas of a higher
classification.
The modeling performed by Virginia for demonstrating attainment in
Richmond by 2007 was based on modeling conducted for the Roanoke, VA
EAC. While not optimized for the Richmond area, this modeling can be
used to indicate whether Richmond might attain by 2007. The EAC
modeling projects attainment in the Richmond area in 2007. The highest
of these projected design values is 84.1 ppb for the Hanover monitor.
In addition, EPA's January 2004 CAIR modeling projects Richmond's ozone
concentrations to be well below the ozone standard in 2010 (77 ppb).
Although neither analysis is as comprehensive an assessment as would be
expected with a SIP attainment demonstration, together they provide
support that the Richmond area will attain the ozone standard by 2007.
On August 30, 2004, the Director of Virginia's Department of
Environmental Quality submitted a letter to EPA (followed up by a
letter on September 2, 2004 from the VA Air Director) committing to
adopt additional emission control measures to reduce ozone levels.
Several of these measures are already in place in the smaller 1-hour
Richmond ozone nonattainment area or in the northern Virginia
(Washington DC) 1-hour ozone nonattainment area. This letter stated
that control measures such as reformulated gasoline, stage I, and
existing source RACT regulations would be extended into the larger
Richmond 8-hour ozone nonattainment area. The northern Virginia control
measures (solvent cleaning, architectural and maintenance coatings,
motor vehicle refinishing, and portable fuel containers) would be
studied and the process of adoption for the Richmond 8-hour ozone
nonattainment area would commence. Therefore, the emissions trend is
expected to decrease due to the implementation of various local,
regional, and national rules.
The ozone air quality trends in the Richmond area are relatively
flat. It can be expected that ozone values will decline due to the
implementation of local, regional, and national rules relative to ozone
levels in recent years.
In summary, the following factors support the request for
reclassification to marginal for the Richmond area: the design value of
94 ppb meets our criteria to qualify for consideration of bump down,
local and regional modeling together with declining emissions from
local, regional and national regulations support the conclusion that
Richmond is likely to attain by 2007. Thus, the request meets certain
criteria EPA established (request, discontinuity, emission reductions,
attainment, and data) and does not violate any of the criteria
(trends). Therefore, EPA is approving the reclassification request for
the Richmond area.
VIII. Does This Action Impact the Deferred Effective Date of
Nonattainment Designations for the Greensboro EAC Area?
As long as the Greensboro area continues to meet the milestones and
submissions that compact areas are required to complete, the area would
continue to be eligible for a deferred effective date of the
nonattainment designation for the 8-hour ozone standard. The effective
date of the 8-hour ozone nonattainment designation for the compact area
counties listed in 40 CFR part 81 remains deferred until September 30,
2005. Additional information on EACs is contained in the April 30, 2004
final rule (69 FR 23864-23876).
IX. If an Area is Bumped Down to Marginal, Then Misses the Attainment
Date and is Bumped Up to Moderate, What Due Dates Apply?
Within 6 months following the applicable attainment date [including
any extension thereof pursuant to section 181(a)(5)] for an ozone
nonattainment area, the Administrator is required to determine, based
on the area's design value (as of the attainment date), whether the
area attained the standard by that date. Any area that the
Administrator finds has not attained the standard by that date shall be
reclassified by operation of law to the higher of (i) the next higher
classification for the area, or (ii) the classification applicable to
the area's design value as of the attainment date.
Section 182(i) of the CAA specifies that the deadlines provided
under the requirements of section 182 remain applicable, except that
the Administrator ``may adjust any applicable deadlines (other than
attainment dates) to the extent such adjustment is necessary or
appropriate to assure consistency among the required submissions.'' All
required controls and emissions reductions must be implemented or
achieved on a schedule that facilitates attainment by the attainment
date.
In previous rulemaking actions, EPA has provided 12-18 months for
States to submit required SIP revisions.\6\ However, States should plan
to adopt controls as soon as possible because the determination of
whether the area attains the NAAQS by the attainment deadline must be
based on air quality during the preceeding three ozone seasons. That
is, the determination of whether a moderate area attains the NAAQS by
June 15, 2010 will be based on air quality during the 2007-2009 period.
Thus, the sooner the moderate-area controls are implemented, the more
likely the area will reach attainment by the 2010 attainment date.
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\6\ See notices under the heading ``1-Hour Ozone Federal
Register Notices Changes to a Higher Classification'' at http://www.epa.gov/oar/oaqps/greenbk/ofr2rpt2.html.
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X. Statutory and Executive Order Reviews
Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate and classify areas. The CAA then specifies requirements
for areas based on whether such areas are attaining or not attaining
the NAAQS
[[Page 56706]]
and their classification, if any. In this final rule, we reclassify
certain areas designated nonattainment.
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 final rule was
not formally submitted to OMB for review.
B. Paperwork Reduction Act
This final action to reclassify nine ozone nonattainment areas from
moderate to marginal 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 (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 today's final 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 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.
This rule is not subject to the RFA because it was not subject to
notice and comment rulemaking requirements. After considering the
economic impacts of today's final rule on small entities, I certify
that this rule will not have a significant economic impact on a
substantial number of 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.
Today's final action does not include a Federal mandate within the
meaning of UMRA that may result in expenditures of $100 million or more
in any 1 year by either State, local, or Tribal governments in the
aggregate or to the private sector, and therefore, is not subject to
the requirements of sections 202 and 205 of the UMRA. It does not
create any additional requirements beyond those of the 8-hour National
Ambient Air Quality Standards (NAAQS) for Ozone (62 FR 38894; July 18,
1997), therefore, no UMRA analysis is needed. This rule reclassifies
certain areas with respect to the 8-hour ozone standard. The CAA
requires States to develop plans, including control measures, based on
their designations and classifications.
The EPA believes that any new controls imposed as a result of this
action will not cost in the aggregate $100 million or more annually.
Thus, this Federal action will not impose mandates that will require
expenditures of $100 million or more in the aggregate in any 1 year.
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 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 rule will 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 rule.
[[Page 56707]]
Although Executive Order 13132 does not apply to this rule, EPA
discussed the reclassification process with representatives of State
and local air pollution control agencies and Tribal governments. This
rule is not subject to notice and comment and, therefore, no proposed
rulemaking was prepared which specifically solicited comment on the
reclassifications. However, we provided notification of the
reclassification process and our criteria in the April 30, 2004 Federal
Register action.
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. This
rule concerns the reclassification of certain areas for the 8-hour
ozone standard. The CAA provides for States to develop plans to
regulate emissions of air pollutants within their jurisdictions. The
Tribal Authority Rule (TAR) gives Tribes the opportunity to develop and
implement CAA programs such as programs to attain and maintain 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 final 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. Furthermore, this rule
does not affect the relationship or distribution of power and
responsibilities between the Federal government and Indian Tribes. The
CAA and the TAR establish the relationship of the Federal government
and Tribes in developing plans to attain the NAAQS, and this rule does
nothing to modify that relationship. Because this rule does not have
Tribal implications, Executive Order 13175 does not apply. Although
Executive Order 13175 does not apply to this rule, EPA did outreach to
Tribal representatives regarding the reclassifications.
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 final rule is not subject to Executive Order 13045 because it
is not economically significant as defined in Executive Order 12866,
and 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 risk assessment are
contained in the National Ambient Air Quality Standards 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 rule is not subject to Executive Order 13211, ``Actions 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 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 action does not involve technical standards. Therefore, EPA
did not consider the use of any VCS.
J. 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).
K. Judicial Review
Sections 172(a)(1)(B) and 181(a)(3) provide that classification
determinations ``shall not be subject to judicial review until the
Administrator takes final action'' approving or disapproving a SIP
revision or triggering sanctions under section 179 with respect to a
SIP revision required for an area's classification. Thus, any petitions
for review of a classification decision made in this action must be
filed within 60 days of publication of a final EPA action triggering
sanctions with respect to a SIP submission required for the area's
classification or approving or disapproving a SIP required for the
area's classification. Since such challenge would be brought in
conjunction with EPA's action regarding a SIP submission, a petition
for review challenging the classification decision should be brought in
the United States Court of Appeals for the appropriate circuit.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National Parks,
Wilderness areas.
Dated: September 15, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons set forth in the preamble, 40 CFR part 81, subpart C is
amended as follows:
[[Page 56708]]
PART 81--DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart C--Section 107 Attainment Status Designations
PART 81--[AMENDED]
0
2. In Sec. 81.304, the table entitled ``Arkansas-Ozone (8-Hour
Standard)'' is amended by revising the entry for ``Crittenden County''
to read as follows:
Sec. 81.304 Arkansas.
* * * * *
Arkansas-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ----------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Memphis,TN-AR: (AQCR 018 Metropolitan
Memphis Interstate)
Crittenden County.................. (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ November 22, 2004.
0
3. In Sec. 81.315, the table entitled ``Indiana-Ozone (8-Hour
Standard)'' is amended by revising the entry for ``La Porte County'' to
read as follows:
Sec. 81.315 Indiana.
* * * * *
Indiana-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ----------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
La Porte Co., IN:
La Porte County.................... (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ November 22, 2004.
0
4. In Sec. 81.321, the table entitled ``Maryland-Ozone (8-Hour
Standard)'' is amended by revising the entries for ``Kent and Queen
Anne's Counties'' to read as follows:
Sec. 81.321 Maryland.
* * * * *
Maryland-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ----------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Kent and Queen Anne's Cos., MD:
Kent County........................ (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Queen Anne's County................ (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * * * *
\3\ November 22, 2004.
0
5. In Sec. 81.323, the table entitled ``Michigan-Ozone (8-Hour
Standard)'' is amended by revising the entries for ``Cass, Lenawee,
Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, Wayne, and
Muskegon Counties' to read as follows:
Sec. 81.323 Michigan.
* * * * *
[[Page 56709]]
Michigan-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ----------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Cass County, MI:
Cass County........................ (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
Detroit-Ann Arbor, MI:
Lenawee County..................... (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
Livingston County.................. (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
Macomb County...................... (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
Monroe County...................... (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
Oakland County..................... (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
St. Clair County................... (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
Washtenaw County................... (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
Wayne County....................... (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
* * * * * * *
Muskegon, MI:
Muskegon County.................... \(2)\ Nonattainment............................ \(2)\ Subpart 2/Marginal
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ November 22, 2004.
0
6. In Sec. 81.334, the table entitled ``North Carolina-Ozone (8-Hour
Standard)'' is amended by revising the entries for ``Alamance, Caswell,
Davidson, Davie, Forsyth, Guilford, Randolph, and Rockingham Counties'
to read as follows:
Sec. 81.334 North Carolina.
* * * * *
North Carolina-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ----------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Greensboro-Winston-Salem-High Point,
NC:
Alamance County.................... (\2\) (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Caswell County..................... (\2\) (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Davidson County.................... (\2\) (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Davie County....................... (\2\) (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Forsyth County..................... (\2\) (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Guilford County.................... (\2\) (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Randolph County.................... (\2\) (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Rockingham County.................. (\2\) (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ Early Action Compact Area, effective date deferred until September 30, 2005.
\3\ November 22, 2004.
0
7. In Sec. 81.339, the table entitled ``Pennsylvania-Ozone (8-Hour
Standard)'' is amended by revising the entry for ``Lancaster County''
to read as follows:
Sec. 81.339 Pennsylvania.
* * * * *
Pennsylvania-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ----------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Lancaster, PA:
Lancaster County................... (\2\) Nonattainment............................ (\2\) Subpart 2/Marginal
[[Page 56710]]
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ November 22, 2004.
0
8. In Sec. 81.343, the table entitled ``Tennessee-Ozone (8-Hour
Standard)'' is amended by revising the entry for ``Shelby County'' to
read as follows:
Sec. 81.343 Tennessee.
* * * * *
Tennessee-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation a Category/classification
Designated area ----------------------------------------------------------------------------------------------------------------
Date\1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Memphis,TN-AR:
Shelby County...................... (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * * * *
\3\ November 22, 2004.
0
9. In Sec. 81.347, the table entitled ``Virginia-Ozone (8-Hour
Standard)'' is amended by revising the entries for ``Charles City
County, Chesterfield County, Colonial Heights City, Hanover County,
Henrico County, Hopewell City, Petersburg City, Prince George County,
and Richmond City'' to read as follows:
Sec. 81.347 Virginia.
* * * * *
Virginia-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation a Category/classification
Designated area ----------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Richmond-Petersburg, VA:
Charles City County................ (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Chesterfield County................ (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Colonial Heights City.............. (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Hanover County..................... (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Henrico County..................... (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Hopewell City...................... (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Petersburg City.................... (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Prince George County............... (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
Richmond City...................... (\3\) Nonattainment............................ (\3\) Subpart 2/Marginal
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * * * *
\3\ November 22, 2004.
[[Page 56711]]
[FR Doc. 04-21184 Filed 9-21-04; 8:45 am]
BILLING CODE 6560-50-P