[Federal Register Volume 64, Number 205 (Monday, October 25, 1999)]
[Proposed Rules]
[Pages 57424-57430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27878]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 50

[FRL-6463-8]


Rescinding Findings That the 1-Hour Ozone Standard No Longer 
Applies in Certain Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Today, EPA is proposing to rescind its prior findings that the 
1-hour ozone national ambient air quality standard (NAAQS) and its 
accompanying designations and classifications no longer apply in 
certain areas. The EPA had previously taken final action regarding the 
applicability of the 1-hour standard for various areas on June 5, 1998, 
July 22, 1998, and June 9, 1999. A recent ruling of the U.S. Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit) has 
undermined the basis for EPA's previous determinations on applicability 
of the 1-hour ozone standard. In the ruling, the court remanded the 8-
hour NAAQS for ozone and curtailed EPA's authority to enforce it. The 
effectiveness of the 8-hour standard served as the underlying basis for 
EPA's regulations governing these applicability determinations and thus 
for EPA's finding that the 1-hour standard no longer applied in areas 
that EPA determined were attaining the 1-hour standard. Since the court 
has ruled that EPA cannot fully implement the 8-hour standard, and it 
may be some time before EPA is able to take steps to secure the public 
health protection afforded by an 8-hour standard, EPA is today 
proposing to rescind the findings that the 1-hour standard no longer 
applies, and thereby reinstate the applicability of the 1-hour 
standard. Under this proposal, the designations and classifications 
that previously applied in such areas with respect to the 1-hour 
standard would be reinstated. Furthermore, in today's action, EPA is 
proposing to amend 40 CFR 50.9(b) to provide by rule that the 1-hour 
ozone standard will continue to apply to all areas notwithstanding 
promulgation of the 8-hour standard.

DATES: Your comments must be submitted on or before December 1, 1999 in 
order to be considered.

ADDRESSES: You may comment in various ways:
    On paper. Send paper comments (in duplicate, if possible) to the 
Air and Radiation Docket and Information Center (6102), Attention: 
Docket No. A-99-22, U.S. Environmental Protection Agency, 401 M St., 
SW, Room M-1500, Washington, DC 20460, telephone (202) 260-7548.
    Electronically. Send electronic comments to EPA at: A-and-R-
D[email protected]. Avoid sending confidential business 
information. We accept comments as e-mail attachments or on disk. 
Either way, they must be in WordPerfect 5.1 or 6.0 or ASCII file 
format. Avoid the use of special characters and any form of encryption. 
You may file your comments on this proposed rule online at many Federal 
Depository Libraries. Be sure to identify all comments and data by 
Docket number A-99-22.
    Public inspection. You may read the proposed rule (including paper 
copies of comments and data submitted electronically, minus anything 
claimed as confidential business information) at the Docket and 
Information Center. They are available for public inspection from 8:00 
a.m. to 5:30 p.m., Monday through Wednesday, excluding legal holidays. 
We may charge a reasonable fee for copying.

FOR FURTHER INFORMATION CONTACT: Questions about this proposal should 
be addressed to Annie Nikbakht (policy) or Barry Gilbert (air quality 
data), Office of Air Quality Planning and Standards, Air Quality 
Strategies and Standards Division, Ozone Policy and Strategies Group, 
MD-15, Research Triangle Park, NC 27711, telephone (919) 541-5246/5238 
or e-mail to [email protected] or 
[email protected]. To ask about policy matters or 
monitoring data for a specific geographic area, call one of these 
contacts:

Region I--Richard P. Burkhart (617) 918-1664,
Region II--Ray Werner (212) 637-3706,
Region III--Marcia Spink (215) 814-2104,
Region IV--Kay Prince (404) 562-9026,
Region V--Todd Nettesheim (312) 353-9153,
Region VI--Lt. Mick Cote (214) 665-7219,
Region VII--Royan Teter (913) 551-7609,
Region VIII--Tim Russ (303) 312-6479,
Region IX--Morris Goldberg (415) 744-1296,
Region X--William Puckett (206) 553-1702

SUPPLEMENTARY INFORMATION: The Agency is asking for your comments on 
whether EPA should rescind findings that the 1-hour standard no longer 
applies, and on the effects of such a rescission. See section IV of 
this proposal for specific issues open for comment.

Table of Contents

I. Background
    A. What was the basis for EPA's previous rulemaking actions 
finding that the 1-hour ozone standard no longer applied in certain 
areas?
    B. What effect does the recent court decision have on today's 
proposed action?
II. What is the Agency's primary reason for reinstating the 1-hour 
ozone standard in areas where it no longer applies?
III. What action is EPA proposing to take today?
IV. What is the effect of rescinding previous findings that the 1-
hour standard no longer applied?
V. What administrative requirements are considered in today's 
proposed rule?
    A. Executive Order 12866: Regulatory Impact Analysis
    B. Regulatory Flexibility Act
    C. Unfunded Mandates
    D. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    E. Executive Order 12875: Enhancing the Intergovernmental 
Partnership
    F. Executive Order 12612: Federalism
    G. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    H. Paperwork Reduction Act
    I. Executive Order 12898: Environmental Justice
    J. National Technology Transfer and Advancement Act

I. Background

A. What was the basis for EPA's previous rulemaking actions finding 
that the 1-hour ozone standard no longer applied in certain areas?

    On July 18, 1997 (62 FR 38856), we issued a regulation replacing 
the 1-hour 0.12 parts per million (ppm) ozone NAAQS with an 8-hour 
standard at a level of 0.08 ppm. An area's compliance with the 8-hour 
standard is measured by the 3-year average of the annual fourth-highest 
daily maximum 8-hour average ozone concentrations measured at each 
monitor within an area. The new primary standard, which became 
effective on September 16, 1997, provides increased protection to the 
public, especially children, the elderly, and other at-risk 
populations.

[[Page 57425]]

    Also, on July 18, 1997, we announced that the 1-hour ozone NAAQS 
would continue to apply to areas until areas attained the 1-hour NAAQS. 
We did this to provide continuity in public health protection during 
the transition to implementation of the new NAAQS. We codified this 
approach in a regulation providing that the 1-hour standard would no 
longer apply to an area upon a determination by EPA that the area was 
attaining the 1-hour standard. 62 FR 38856, codified at 40 CFR 50.9(b). 
The regulation indicating that the 1-hour standard would no longer 
apply upon attainment was clearly premised upon the effectiveness of 
the 8-hour standard and the implementation scheme developed for that 
standard. See, e.g., 63 FR 31014, 31016 (3rd col.).
    Also, on July 16, 1997, President Clinton issued a memorandum (62 
FR 38421, July 18, 1997) to the Administrator of EPA indicating that 
within 90 days of our issuing the new 8-hour standard, we would publish 
an action identifying ozone areas to which the 1-hour standard would no 
longer apply. The memorandum recognized that for areas where the air 
quality did not currently attain the 1-hour standard, the 1-hour 
standard would continue in effect. The memorandum also recognized that 
provisions of subpart 2 part D of title I of the Clean Air Act (CAA) 
would apply to areas that remained subject to the 1-hour standard and 
that were designated nonattainment until EPA determined that the area 
was attaining the 1-hour standard.
    On June 5, 1998 (63 FR 31014), July 22, 1998 (63 FR 39432), and 
June 9, 1999 (64 FR 30911), we issued final rules for many areas that 
were attaining the 1-hour standard, finding that the 1-hour standard no 
longer applied to these areas and amending the Code of Federal 
Regulations (CFR) to remove the designations and classifications that 
had applied to those areas for the 1-hour standard under sections 107, 
172 and 181 of the CAA.

B. What Effect Does the Recent Court Decision Have on Today's Proposed 
Action?

    On May 14, 1999, the D.C. Circuit issued an opinion questioning the 
constitutionality of the CAA authority to review and revise the NAAQS, 
as applied in EPA's revision to the ozone and particulate matter NAAQS. 
American Trucking Association v. U.S. EPA, 175 F.3d 1027 (D.C. Cir. 
1999). The court stopped short of finding the statutory grant of 
authority unconstitutional, instead remanding to EPA to identify a 
determinate principle for promulgating the appropriate level of these 
NAAQS. The court also addressed other issues, including EPA's authority 
to designate and set attainment dates for a revised ozone standard. The 
court found that EPA has authority to designate areas for a revised 
ozone standard. However, based on the statutory provisions regarding 
classifications and attainment dates under sections 172(a) and 181(a), 
the court's ruling curtailed EPA's ability to implement and enforce a 
more stringent ozone NAAQS. On June 28, 1999, EPA filed a petition for 
rehearing in American Trucking addressing this and other portions of 
the court's opinion. The EPA believes that unless and until the court's 
decision is revised or vacated, EPA should not continue implementation 
efforts with respect to the 8-hour standard that could be construed as 
inconsistent with the court's ruling. This reservation does not apply 
to any EPA actions based on the 1-hour standard because the court did 
not limit EPA's ability to implement the 1-hour standard.

II. What is the Agency's primary reason for reinstating the 1-hour 
ozone standard in areas where it no longer applies?

    Since EPA is uncertain as to its ability to implement the new 8-
hour standard, and will remain unsure until ongoing litigation is 
completed, EPA believes that it is not appropriate to leave in place 
the determinations that the 1-hour ozone standard no longer applies to 
areas that had attained the 1-hour standard. These determinations were 
premised on the existence of an implementation scheme for the 8-hour 
ozone standard and the need to transition to the implementation of that 
standard. Since EPA cannot effectively implement the 8-hour standard, 
EPA cannot justify keeping the 1-hour standard inapplicable in these 
areas. In the absence of a 1-hour standard, no ozone standard that 
could be effectively implemented would be in place in these areas. 
Therefore, pending resolution of the litigation involving EPA's ability 
to promulgate and enforce the 8-hour NAAQS, EPA is proposing to rescind 
the findings that the 1-hour ozone standard no longer applies. The EPA 
considers this action necessary in order to ensure continued health 
protection for the public while the issue of EPA's ability to 
promulgate and enforce a revised ozone standard is resolved. If EPA 
finalizes today's proposed action, and then EPA prevails in the 
litigation and retains the ability to promulgate a revised 8-hour ozone 
standard that can be effectively enforced, EPA believes it would again 
be appropriate for the 1-hour standard to no longer apply once an area 
attains that standard, as established in the original promulgation of 
the 8-hour standard.
    The EPA is charged with ensuring that the American public has 
healthy air to breathe. A fully enforceable 8-hour standard would have 
provided substantial protection against exposures to ozone over both 
short- and long-term time periods. Without full authority to enforce 
the 8-hour standard and with no applicable 1-hour standard nationwide, 
the public will be at a greater risk of exposure to short-term ozone 
concentrations and acute effects based on 1- to 3-hour exposures. Such 
acute effects may be manifested as significant lung function decrements 
in individuals engaged in heavy exertion, respiratory symptoms (e.g., 
cough, chest pain), reduced exercise performance, increased airway 
responsiveness, impaired respiratory defenses, and increased hospital 
admissions and emergency room visits. New health effects information 
additionally demonstrates associations between a wide range of health 
effects and 6- to 8-hour exposures below the level of the 1-hour 
standard. Thus, insuring the 1-hour standard is met will both address 
effects related to 1-hour exposures and reduce, though not eliminate, 
the risk of health effects associated with 6- to 8-hour exposures.
    Some of the areas where the 1-hour standard has been found 
inapplicable are now violating that standard and EPA is not aware of 
any plans in place in these areas to reduce emissions. Likewise, some 
areas with maintenance plans are now violating the 1-hour standard 
without implementing contingency measures to curtail violations. 
Without either a 1-hour standard in place or an 8-hour standard that 
can be fully implemented, there is no longer a defined process for 
improving the air quality in these areas.

III. What Action Is EPA Proposing To Take Today?

    Today, we are proposing to rescind the findings that the 1-hour 
standard no longer applies in those areas where the Agency had 
previously determined that the 1-hour standard had been attained. The 
1-hour standard would be put back in place in nearly 3,000 counties, 
all of the areas where the 1-hour standard had been determined 
inapplicable in previous final actions taken by the Agency. The areas 
affected are identified by air quality designations in the docket for 
this rulemaking at Docket No. A-99-22, and will be listed by county in 
the proposed CFR language to be published subsequently in a later

[[Page 57426]]

Federal Register. Also, the 40 CFR part 81 ozone table, listing areas 
of the country where the 1-hour ozone standard currently applies and 
those for which the 1-hour ozone standard is being proposed for 
reinstatement, can be viewed at the following internet website address: 
http://www.epa.gov/ttn/oarpg. Where the 1-hour ozone standard again 
becomes applicable as a result of this rulemaking, the attainment and 
nonattainment designations and classifications applicable to such areas 
previously will again apply. See Interim Implementation Policy 
Statement accompanying the proposed 8-hour NAAQS, 61 FR 65752, 65754 
(Dec. 13, 1996)(``the designations would remain in effect so long as 
the current 1-hour ozone NAAQS remains in effect'').
    Given that the previous designations and classifications of these 
areas were based upon the 1-hour ozone standard, which we are proposing 
will again apply, EPA proposes that the tables in Part 81 of the CFR be 
amended by again identifying the designation and classification of the 
area that applied prior to EPA's determinations that the standard no 
longer applied.
    As discussed above, 40 CFR 50.9(b) presently provides that the 1-
hour ozone standard would no longer apply once EPA determined that an 
area attained that standard. For the reasons described above concerning 
the need to retain the 1-hour standard while EPA's authority to 
implement and effectively enforce the 8-hour standard is in question, 
EPA is proposing to revise section 50.9(b) to indicate that the 1-hour 
standard remains applicable to all areas notwithstanding the 
promulgation of the 8-hour standard. Furthermore, because as explained 
above and in the promulgation of the 8-hour standard, EPA believes it 
is only appropriate to keep the 1-hour ozone standard in place as a 
transition mechanism to ensure continued public health protection as 
areas plan to meet the new 8-hour standard, EPA is proposing that after 
the 8-hour standard has become fully enforceable under part D of title 
I of the CAA and subject to no further legal challenge, the 1-hour 
standards set forth in section 50.9 will no longer apply to an area 
once EPA determines that the area has air quality meeting the 1-hour 
standard. EPA believes that by the time the new 8-hour standard becomes 
fully enforceable under Part D and subject to no further legal 
challenge, the designations of areas as nonattainment for the 8-hour 
standard will either have already occurred or will occur very shortly. 
EPA concludes that at that time if an area is meeting the one-hour 
standard, it will be most appropriate for areas to concentrate all of 
their limited resources on planning to meet their obligations under the 
new 8-hour standard rather than having to simultaneously complete any 
remaining requirements that are needed to meet the 1-hour standard.
    In light of many areas' needs to quickly develop additional State 
Implementation Plan (SIP) programs in response to the actions EPA is 
proposing today, EPA intends to provide in any final action on this 
proposal that the actions proposed today will become effective 90 days 
after publication of any final action in the Federal Register.

IV. What is the effect of rescinding previous findings that the 1-
hour standard no longer applied?

    The Agency is asking for your comments on the following aspects of 
this proposed action rescinding the findings that the 1-hour standard 
no longer applies. The issues are identified by designation status and 
current air quality. A list of the areas in each category can be found 
in the public docket for this proposed action at Docket No. A-99-22.

Areas Designated As Attainment with No Violations Since Revocation

    For areas that were designated as attainment (with or without 
maintenance plans) prior to the determination that the 1-hour standard 
no longer applied and that have remained in attainment for the 1-hour 
standard since that determination, EPA proposes that no new subpart 2 
programmatic SIP requirements, beyond continued compliance with 
existing provisions of any applicable maintenance plans, will apply to 
such areas upon reinstatement of the 1-hour standard.

Areas Designated Attainment (Without Maintenance Plans) With Violations 
Since Revocation

    For areas that were designated as attainment that do not have a 
maintenance plan but have had one or more violations of the 1-hour 
standard since the determination that the 1-hour standard no longer 
applied, EPA believes that such areas should be given a reasonable time 
frame to plan to bring the areas back into attainment. The EPA has the 
authority to designate these areas as nonattainment; however, no 
decision to take such action has been made to date, and EPA is not 
proposing to take such action at this time.

Areas Designated Attainment (With Maintenance Plans) With Violations 
Since Revocation

    For areas that were designated as attainment that do have a 
maintenance plan but have had one or more violations of the 1-hour 
standard since the determination that the 1-hour standard no longer 
applied, EPA believes that the contingency measures outlined in the 
maintenance plan must be implemented according to the schedule in the 
plan. In addition, EPA believes that if during the time since the 
determination that the 1-hour standard no longer applied any 
requirements to implement contingency measures based on a violation of 
the 1-hour standard had been removed from the SIP, States should put 
such requirements back into place in order to assure the correction of 
any such violations.

Areas Designated Nonattainment With No Violations Since Revocation

    For areas that were designated as nonattainment prior to the 
determination that the 1-hour standard no longer applied and that have 
remained in attainment of the 1-hour standard since revocation, EPA 
proposes that the standard and accompanying nonattainment designation 
will again apply. However, EPA recommends that such areas follow the 
redesignation requirements of section 107(d)(3)(E) for submission of 
maintenance plans and redesignation to attainment. The EPA's Regional 
Offices will work with the States to expedite this process. Also, EPA 
proposes to apply its May 10, 1995 ``Clean Data Policy'' as appropriate 
to these areas, which permits suspension of certain requirements under 
Subpart 2 as they relate to ozone nonattainment areas meeting the ozone 
NAAQS, including requirements for reasonable further progress and 
attainment demonstrations. However, outstanding subpart 2 requirements 
not covered by this policy that were required prior to revocation would 
continue to apply until redesignation. The EPA will determine the 
applicability of this policy on a case-by-case basis to individual 
areas.

Areas Designated Nonattainment With Violations Since Revocation

    For areas that were designated as nonattainment prior to the 
determination that the 1-hour standard no longer applied and that have 
had violations of the 1-hour standard since that determination, EPA 
proposes that all of the applicable nonattainment area planning 
requirements of subpart 2

[[Page 57427]]

must be followed. The EPA believes that the nonattainment requirements 
in subpart 2 would apply to such areas as a matter of law for purposes 
of the 1-hour standard once this proposed action becomes final. The EPA 
also believes that it is appropriate to provide a reasonable schedule 
for these areas to meet any remaining planning needs with respect to 
these requirements and will work with each area to establish a 
submittal schedule.

Programmatic Effects

Sanctions
    The EPA proposes that any sanctions or Federal implementation plan 
clocks started under sections 110 or 179 of the CAA and 40 CFR 52.31 
with respect to planning requirements in subpart 2 of the CAA would 
again become applicable to areas. As to the timing of restarting such 
clocks, EPA proposes that they would start back up where they left off, 
rather than being considered to have run during the period the standard 
was no longer in effect. This would be done as a matter of fairness to 
affected areas, which were not aware that such clocks could have been 
running during the time that the 1-hour standard was not in effect. The 
EPA requests comments on this proposed approach.
Conformity
    Conformity requirements remained applicable to all areas with 
maintenance plans upon EPA's determination that the standard was no 
longer applicable. Rescission of that determination will not affect the 
continued applicability of conformity. Clean Air Act section 
176(c)(5)(B). Conformity does not apply at any time to attainment areas 
without a maintenance plan. For example, conformity does not apply to 
the areas designated attainment (without maintenance plans) with 
violations since revocation, which is discussed above.
    The EPA proposes that the conformity requirements of section 176 
will apply to all areas previously designated nonattainment at the time 
the 1-hour standard was revoked. The EPA proposes that conformity 
requirements will apply immediately upon the effective date of the 
final action reestablishing the nonattainment designations. We note 
that the DC Circuit has held that EPA could not provide a one-year 
grace period for applicability of transportation conformity regulations 
to newly designated nonattainment areas under the 1-hour standard, but 
rather that transportation conformity requirements apply as a matter of 
law immediately upon final designation of any area as nonattainment. 
Sierra Club v. EPA, 129 F.3d 137 (D.C. Cir. 1997). Therefore, EPA 
believes that the interpretation of the CAA that is most consistent 
with the case law is that the conformity requirements must apply again 
to any area designated nonattainment upon the effective date of the 
designation, for all areas affected by today's proposed action.
    The conformity requirements that would apply are included in 40 CFR 
parts 51 and 93. These requirements were recently modified by EPA's May 
14, 1999 guidance entitled, ``Conformity Guidance on Implementation of 
March 2, 1999 Conformity Court Decision'' and DOT's June 18, 1999 
guidance entitled, ``Additional Supplemental Guidance for the 
Implementation of the Circuit Court Decision Affecting Transportation 
Conformity.''
    When conformity begins applying to affected areas, they must have a 
currently conforming transportation plan and program in order to 
receive federal approval or funding for transportation projects. Some 
areas may have a transportation plan and program that were found to 
conform before the one-hour standard was revoked. If that conformity 
determination is still valid, the area would not need to perform a new 
conformity determination.
    The area would need to document that the current transportation 
plan and program have not changed since the time of the last conformity 
determination in a manner that would have required a new conformity 
determination. In addition, the conformity determination must not have 
expired under the conformity rule's frequency requirements of 40 CFR 
93.104.
    Many areas may need to complete a new conformity determination, 
because the transportation plan and program were changed during the 
time that the one-hour standard was revoked. Areas would demonstrate 
conformity using the motor vehicle emissions budgets in their one-hour 
ozone SIP, if we have approved the SIP or found it adequate for 
conformity purposes. If an area has submitted a SIP with motor vehicle 
emissions budgets for conformity purposes that we have not approved or 
affirmatively found adequate, those budgets may not be used for 
conformity purposes. Any area without a submitted SIP that we have 
approved or found adequate for conformity purposes would demonstrate 
conformity using the emission reduction tests (build/no-build) test 
and/or 1990 test, as described in 40 CFR 93.119.
New Source Review
    With respect to new source review (NSR) requirements, EPA believes 
that, in most cases, the NSR program linked to the section 107 
designation and classification that was in effect at the time EPA found 
that the standard no longer applied will apply automatically under the 
applicable SIP upon rescission of those findings. Thus, if this action 
is finalized as proposed, 1-hour attainment and unclassifiable areas 
will generally be required to continue to implement the prevention of 
significant deterioration (PSD) permitting program for 
ozone,1 whereas 1-hour nonattainment areas will be required 
to implement the appropriate part D NSR program as necessary to comply 
with Subpart 2 of the CAA. At a minimum, and only if the applicable SIP 
specifies no part D NSR program, EPA believes that areas designated 
nonattainment for the 1-hour standard must issue permits consistent 
with the Emission Offset Interpretative Ruling in 40 CFR part 51, 
Appendix S.
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    \1\ Areas previously designated attainment/unclassifiable are 
required to implement PSD for ozone, even during the period that the 
1-hour standard has not applied, because such areas would be 
attainment for some NAAQS and ozone is a regulated pollutant. See 
e.g., 40 CFR 52.21 (i)(2). However, such areas would have had to 
implement moderate area part D NSR during this interim period if 
located in the ozone transport region. See CAA section 184(b)(2).
---------------------------------------------------------------------------

    The EPA believes that the NSR requirements for most areas will 
automatically apply under the terms of the applicable SIP. For 
instance, if an area were previously designated nonattainment and 
classified as ``serious,'' the applicable SIP would have had to ensure 
that the area satisfy all of the NSR requirements of a ``serious'' area 
until we found that the 1-hour standard no longer applied. In most 
cases, SIPs satisfied this requirement by requiring that all 
``serious'' areas in the State meet the applicable NSR requirements 
(e.g., defining ``major source'' to include any source emitting or 
having the potential to emit 25 or more tons per year of NOx or VOC). 
Accordingly, after we found that the standard no longer applied in a 
given area, the ``serious'' classification and ``nonattainment'' 
designation for that area were removed, and the SIP's provision 
applicable to all ``serious'' areas no longer applied to that area. The 
area was then required to implement whatever NSR program the SIP then 
specified for attainment areas. If the action proposed today is 
finalized, EPA believes that the restoration of the designations and 
classifications will, in most cases, trigger the applicable SIP

[[Page 57428]]

requirements for nonattainment areas. This would mean that the 
hypothetical area described above would be required to implement a 
``serious'' area part D NSR program once again.
    Although EPA believes that most SIPs will require automatic 
reinstatement of the NSR requirements that are linked to areas' 
designations and classifications if today's proposal is finalized, 
certain SIPs may be worded in a way that does not link the NSR 
requirements to areas' designations and classifications, and thus such 
SIPs may present unique circumstances. For example, EPA understands 
that some SIPs identify specific areas by name and specify the part D 
NSR requirements for sources in the named areas. Following our prior 
findings that the standard no longer applied, such an area's 
requirements would have continued uninterrupted unless and until the 
State revised its SIP.
    If such a SIP were revised since our findings that the designation 
and classification no longer applied to such an area (so that the SIP 
now specifies that a given named area must do PSD instead of part D 
NSR, for instance), the area's SIP would contain no part D NSR 
obligation for the named area and would not automatically require part 
D NSR if EPA finalizes this notice. The same issue would arise if the 
State deleted its part D NSR program entirely from its SIP upon our 
prior findings that the standard no longer applied. The EPA believes 
that sources in such areas must be required to obtain permits 
consistent with the Emission Offset Interpretative Ruling in 40 CFR 
part 51, Appendix S. The Offset Ruling explains that EPA interprets the 
CAA to require all major sources and major modifications in 
nonattainment areas lacking an applicable SIP-approved program to 
obtain permits meeting certain strict requirements. See 40 CFR 52.24(k) 
(specifying that areas designated nonattainment but lacking approved 
part D NSR programs must follow the Offset Ruling).
    The EPA solicits public comment on whether it is appropriate to 
apply Appendix S to nonattainment areas where the SIP lacks the 
applicable nonattainment NSR provisions. In particular, EPA believes 
that States should act quickly to revise their SIPs to include a part D 
program for any area that lacks one. The EPA seeks input as to whether, 
instead of applying Appendix S, States should follow the Agency's prior 
policy, which specifies that to satisfy the CAA, States must issue 
permits consistent with subpart 2's additional requirements, even in 
the absence of an approved SIP. See Memorandum from John Seitz, ``New 
Source Review (NSR) Program Supplemental Transitional Guidance on 
Applicability of New Part D NSR Permit Requirements'' at page 3 (Sept. 
3, 1992).

V. What administrative requirements are considered in today's 
proposed rule?

A. Executive Order 12866: Regulatory Impact Analysis

    Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to 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.
    It has been determined that this proposed rule is a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore subject to OMB review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
EPA must prepare a regulatory flexibility analysis assessing the impact 
of any proposed or final rule on small entities (5 U.S.C. 603 and 604), 
unless EPA certifies that the rule will not have a significant impact 
on a substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and government entities 
with jurisdiction over populations of less than 50,000. The EPA is 
proposing that this rule, in its final form, will not have a 
significant impact on a substantial number of small entities because 
the determination that the 1-hour standard again applies does not 
itself directly impose any new requirements on small entities. See Mid-
Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985) 
(agency's certification need only consider the rule's impact on 
entities subject to the requirements of the rule). Instead, this rule 
merely establishes that the 1-hour standard again applies in certain 
areas. For the most part, any requirements applicable to small entities 
that may indirectly apply as a result of this action would be imposed 
independently by the State under its SIP, not by EPA through this 
action. Moreover, to the extent this rule would automatically trigger 
the applicability of certain SIP requirements to small entities (e.g., 
new source review), this rule cannot itself be tailored to address 
small entities that would be subject to those requirements.
    One requirement that may apply immediately upon this action to all 
designated nonattainment areas is the requirement under CAA section 
176(c) and associated regulations to demonstrate conformity of Federal 
actions to SIPs. However, those rules only apply directly to Federal 
agencies and metropolitan planning organizations (MPOs), which by 
definition are designated only for metropolitan areas with population 
of at least 50,000 and thus do not meet the definition of small 
entities under the RFA. Therefore, I certify that this action will not 
have a significant impact on a substantial number of small entities 
within the meaning of those terms for RFA purposes.

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least-burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    Today's action, if finalized, would not include a Federal mandate 
that may result in estimated costs of $100 million or more to either 
State, local, or tribal governments in the aggregate or to the private 
sector. This rule would reinstate the applicability of the 1-hour ozone 
standard and alter the designation status of areas. The consequences of 
this action may result in some additional costs within the affected 
areas; however, the Agency believes that these costs

[[Page 57429]]

would not exceed $100 million per year in the aggregate.
    One mandate that may apply as a consequence of this action to all 
designated nonattainment areas is the requirement under CAA section 
176(c) and associated regulations to demonstrate conformity of Federal 
actions to SIPs. These rules apply to Federal agencies and MPOs making 
conformity determinations. EPA concludes that such conformity 
determinations will not cost $100 million or more in the aggregate 
annually. In addition, some areas with recent air quality violations 
will have to take the additional steps specified in their maintenance 
plans to limit emissions of air pollutants. These measures could, for 
example, include revising the threshold for new source review, 
establishing RACT level control for additional sources, establishing or 
enhancing I/M programs within the area, and requiring the sale of lower 
volatility gasoline. These measures vary substantially in terms of the 
expected emission reductions and their potential cost. Because the 
affected jurisdictions have some flexibility to choose among these 
measures, it is difficult to estimate the overall cost of these 
additional controls. EPA believes that the affected areas are already 
carrying out many of the other obligations associated with this action. 
For example, most areas have new source review requirements under their 
existing SIP programs. In addition, many of these areas are located in 
the OTR and are already carrying out many of the requirements 
associated with the re-instatement of the 1-hour standard. Therefore, 
EPA believes that these controls 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 one year.

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

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks 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 a 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 EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because this is not an economically 
significant regulatory action as defined by Executive Order 12866, and 
it implements a previously promulgated health or safety-based Federal 
standard and does not itself involve decisions that affect 
environmental health or safety risks.

E. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to OMB a 
description of the extent of EPA's prior consultation with 
representatives of the affected State, local and tribal governments; 
the nature of their concerns; copies of any written communications from 
the governments; and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    The Agency did consult with a number of Mayors, State officials, 
and others to alert them to our consideration of reinstating the 1-hour 
ozone standard and to learn their reactions to the possibility of 
reinstatement. The EPA contacted elected officials and other State, 
regional, and local government representatives from across the nation. 
These contacts included discussions with Mayors from a large number of 
cities across the country. Reactions of the Mayors to the possible 
reinstatement varied. Many were clearly supportive of reinstatement and 
others were not opposed. A few expressed concerns about potential 
economic effects and several requested that any action taken by EPA 
follow usual notice and comment rulemaking procedures.

F. Executive Order 12612: Federalism

    On August 4, 1999, President Clinton issued a new executive order 
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),) 
which will take effect on November 2, 1999. In the interim, the current 
Executive Order 12612 (52 FR 41685 (October 30, 1987),) on federalism 
still applies. This rule will not have a substantial direct effect on 
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 12612.
    As noted previously, this rule would simply reinstate the 
applicability of the 1-hour ozone standard and the associated air 
quality designations for various areas. For the reasons described 
above, the rule itself will not directly impose significant new 
requirements on States or alter relationships between States and the 
Federal government. Therefore, EPA concludes that this rule will not 
have substantial federalism implications. After the new executive order 
takes effect, EPA will determine what its responsibilities are under 
the new order.

G. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to OMB, in a separately identified section of 
the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's proposed rule does not significantly or uniquely affect the 
communities of Indian tribal

[[Page 57430]]

governments. This proposed action does not involve or impose any 
requirements that directly affect Indian tribes. Under EPA's tribal 
authority rule, tribes are not required to implement CAA programs but, 
instead, have the opportunity to do so. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

H. Paperwork Reduction Act

    This proposal does not contain any information collection 
requirements which require OMB approval under the Paperwork Reduction 
Act (44 U.S.C. 3501 et seq.).

I. Executive Order 12898: Environmental Justice

    Under Executive Order 12898, each Federal agency must make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. Today's proposal 
to reinstate the applicability of the 1-hour standard in certain areas 
does not adversely affect minorities and low-income populations.

J. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing new regulations. To comply with 
NTTAA, the EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this proposed action. 
Today's proposed action does not require the public to perform 
activities conducive to the use of VCS.

List of Subjects in 40 CFR Part 50

    Environmental protection, Air pollution control, Carbon monoxide, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

    Dated: October 20, 1999.
Carol M. Browner,
Administrator.

    For the reasons stated in the preamble, chapter I, title 40 of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 50--[AMENDED]

    1. The authority citation for part 50 continues to read as follows:

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

    2. Section 50.9 is amended by revising paragraph (b) to read as 
follows:


Sec. 50.9  National 1-hour primary and secondary ambient air quality 
standards for ozone.

* * * * *
    (b) The 1-hour standards set forth in this section will remain 
applicable to all areas notwithstanding the promulgation of 8-hour 
ozone standards under Sec. 50.10. In addition, after the 8-hour 
standard has become fully enforceable under part D of title I of the 
CAA and subject to no further legal challenge, the 1-hour standards set 
forth in this section will no longer apply to an area once EPA 
determines that the area has air quality meeting the 1-hour standard. 
Area designations and classifications with respect to the 1-hour 
standards are codified in 40 CFR part 81.

[FR Doc. 99-27878 Filed 10-22-99; 8:45 am]
BILLING CODE 6560-50-P