[Federal Register Volume 67, Number 249 (Friday, December 27, 2002)]
[Proposed Rules]
[Pages 79460-79463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32577]



[[Page 79459]]

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Part VI





Environmental Protection Agency





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40 CFR Part 50



Stay of Authority Under 40 CFR 50.9(b) Related to Applicability of 1-
Hour Ozone Standard; Proposed Rule

  Federal Register / Vol. 67, No. 249 / Friday, December 27, 2002 / 
Proposed Rules  

[[Page 79460]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 50

[FRL-7430-2]


Stay of Authority Under 40 CFR 50.9(b) Related to Applicability 
of 1-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The EPA is proposing to stay its authority under the second 
sentence of 40 CFR 50.9(b) to determine that an area has attained the 
1-hour standard (``Proposed Stay'') and that the 1-hour standard no 
longer applies. The EPA proposes that the stay shall be effective until 
such time as EPA takes final action in a subsequent rulemaking 
addressing whether the second sentence of 40 CFR 50.9(b) should be 
modified in light of the Supreme Court's decision in Whitman v. 
American Trucking Ass'ns, Inc., 531 U.S. 457 (2001), remanding EPA's 
strategy for the implementation of the 8-hour ozone NAAQS to EPA for 
further consideration. In the subsequent rulemaking reconsidering the 
second sentence of 40 CFR 50.9(b), EPA will consider and address any 
comments concerning (a) which, if any, implementation activities for an 
8-hour ozone standard, including designations and classifications, 
would need to occur before EPA would determine that the 1-hour ozone 
standard no longer applies to an area, and (b) the effect of revising 
the ozone NAAQS on the existing 1-hour ozone designations.

DATES: To be considered, comments must be received on or before January 
27, 2003.

ADDRESSES: Comments should be submitted (in duplicate, if possible) to 
the EPA Docket Center (6102T), Attention: Docket Number OAR-2002-0067, 
U.S. Environmental Protection Agency, EPA West (Air Docket), 1200 
Pennsylvania Avenue, NW., Room: B108, Washington, DC 20460, telephone 
(202) 566-1742, fax (202) 566-1741, between 8:30 a.m. and 4:30 p.m., 
Monday through Friday, excluding legal holidays. To mail comments 
through Federal Express, UPS or other courier services, the mailing 
address is: EPA Docket Center (Air Docket, U.S. Environmental 
Protection Agency, 1301 Constitution Avenue, NW., Room: B108, Mail 
Code: 6102T, Washington, DC 20004. A reasonable fee may be charged for 
copying. Comments and data may also be submitted electronically by 
following the instructions under SUPPLEMENTARY INFORMATION of this 
document. No confidential business information should be submitted 
through e-mail.

FOR FURTHER INFORMATION CONTACT: Questions concerning this NPRM should 
be addressed to Annie Nikbakht, Office of Air Quality Planning and 
Standards, Air Quality Strategies and Standards Division, Ozone Policy 
and Strategies Group, MD-C539-02, Research Triangle Park, NC 27711, 
telephone (919) 541-5246.

SUPPLEMENTARY INFORMATION: Electronic Availability--The official record 
for this proposed rule, as well as the public version, has been 
established under Docket Number OAR-2002-0067. Submit comments by e-
mail to address: www.epa.gov/rpas.

Table of Contents

I. Background
II. Summary of Today's Action
III. Statutory and Executive Order Reviews

I. Background

A. The Revised 8-Hour Ozone NAAQS

    On July 18, 1997, the EPA promulgated a revised 8-hour National 
Ambient Air Quality Standard (NAAQS) for ozone. The rule was challenged 
by a number of industry groups and States in the Court of Appeals for 
the District of Columbia Circuit (D.C. Circuit). The Court granted many 
aspects of those challenges and remanded the 8-hour ozone NAAQS to EPA. 
American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) 
(``ATA''). With respect to EPA's authority to implement the revised 8-
hour ozone standard, the Court held that the statute was clear on its 
face that the provisions of ``subpart 2'' applied and then held that 
under the terms of the statute, the 8-hour standard ``cannot be 
enforced.'' \1\ Id. at 1048-1050, 1057. The Court also remanded the 
standard to EPA on the ground that, under EPA's interpretation of its 
authority to promulgate the NAAQS, the CAA provided an unconstitutional 
delegation of authority to EPA. Id. at 1034-1040. Finally, the Court 
held that EPA had failed to consider whether ground-level ozone had 
some beneficial effects, in particular, whether ground-level ozone 
acted as a shield from the harmful effects of ultraviolet radiation. 
Id. at 1051-1053. The D.C. Circuit largely denied EPA's request for 
rehearing, but did modify its decision to say that the 8-hour NAAQS 
could be enforced, but only in conformity with certain ozone-specific 
provisions (subpart 2) enacted in 1990. ATA II, 195 F.3d 4 (D.C. Cir. 
1999).
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    \1\ Part D of title I of the Clean Air Act (CAA) contains a 
number of subparts concerning implementation of the NAAQS. Subpart 1 
applies for purposes of implementing all new or revised NAAQS. 
Subparts 2-5, each apply to one or more specific NAAQS. At the time 
EPA promulgated the 8-hour ozone NAAQS, EPA indicated that it 
believed subpart 1 was the only subpart that would apply for 
purposes of implementing the revised 8-hour NAAQS and stated that 
subpart 2, which specifically addresses ozone, applied only for 
purposes of implementing the 1-hour ozone standard.
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    The EPA requested review by the Supreme Court of two aspects of the 
D.C. Circuit's decision--the delegation and implementation issues. The 
Court agreed to consider the case and on February 27, 2000, rejected 
the D.C. Circuit's holding that EPA's interpretation of the CAA 
resulted in an unconstitutional delegation of authority. Whitman v. 
American Trucking Ass'ns, Inc., 531 U.S. 457, 472-476 (2001) (Whitman). 
While disagreeing with the Court of Appeals that the CAA was clear on 
its face that subpart 2 applied for purposes of implementing the 
revised ozone standard, the Court found unreasonable EPA's assertion 
that subpart 2 was inapplicable for implementation of the 8-hour ozone 
NAAQS. The Court remanded the implementation strategy to EPA for 
further consideration. Id. at 481-486.

B. EPA's Revocation Rules

    Simultaneous with its promulgation of the 8-hour ozone NAAQS on 
July 18, 1997, EPA promulgated a final rule governing the continued 
applicability of the existing 1-hour ozone NAAQS. 40 CFR 50.9(b). The 
relevant language in 40 CFR 50.9(b) provides: ``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 are codified in 40 CFR part 81.'' In part, EPA based 
this approach on its interpretation that the provisions of subpart 2 of 
part D of title I of the CAA applied as a matter of law for purposes of 
implementing the 1-hour ozone NAAQS, but that they would not apply for 
purposes of implementing the revised ozone standard. Thus, EPA believed 
it made sense to delay revocation of the 1-hour standard until such 
time as the provisions of subpart 2 would no longer apply and, at that 
time, revoke the 1-hour standard. Thus, once an area attained the 1-
hour standard and EPA determined the 1-hour standard no longer applied 
to that area, the provisions of subpart 2 would also no longer apply.
    On June 5, 1998, EPA issued a final rule determining that over 
2,000

[[Page 79461]]

counties had attained the 1-hour ozone standard and that, therefore, 
the 1-hour standard and the associated designation for that standard no 
longer applied to those areas. See ``Identification of Ozone Areas 
Attaining the 1-Hour Standard to Which the 1-Hour Standard is No Longer 
Applicable,'' (63 FR 31014, June 5, 1998) (``Revocation Rule''). 
Subsequently, on August 3, 1998, Environmental Defense and the Natural 
Resources Defense Council (collectively ``Environmental Defense'') 
filed a petition for review challenging that rule. Environmental 
Defense v. EPA (No. 98-1363, D.C. Cir.).
    On June 9, 1999, EPA issued a final rule determining that the 1-
hour ozone standard no longer applied in an additional ten areas. 
Appalachian Mountain Club filed a petition for review challenging that 
action August 9, 1999. Appalachian Mountain Club v. EPA, No. 99-1880 
(1st Cir.).
    Because of the doubt cast on the 8-hour standard and EPA's 
authority to enforce it by the D.C. Circuit in the ATA case, on July 
20, 2000, EPA issued a final rule rescinding the Revocation Rules, (65 
FR 45182, July 20, 2000) (Rescission Rule).\2\ Thus, EPA reinstated the 
1-hour ozone NAAQS for all of the counties for which EPA previously 
determined that the 1-hour ozone NAAQS no longer applied. As part of 
the Rescission Rule, EPA modified the second sentence in 40 CFR 50.9(b) 
to provide: ``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.''
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    \2\ In addition to the two Revocation Rules that were 
challenged, EPA issued a third Revocation Rule on July 22, 1998 that 
was not challenged, (63 FR 39432).
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C. Revocation Rule Litigation

    The parties in both the Environmental Defense and the Appalachian 
Mountain Club cases determined to stay the litigation based on EPA's 
Rescission Rule and the continued litigation regarding the 8-hour ozone 
NAAQS and EPA's authority to implement that standard. Following the 
Supreme Court's decision in the Whitman case, the parties negotiated a 
Settlement Agreement that provided for EPA to issue this proposal to 
stay its authority under 40 CFR 50.9(b) while EPA considers whether to 
modify the language in 40 CFR 50.9(b) regarding the process and basis 
for revoking the 1-hour ozone standard. See 67 FR 48896 (July 26, 
2002). Environmental Defense and Appalachian Mountain Club have agreed 
to dismiss their cases if EPA issues a final rule staying the 
revocation provision in 40 CFR 50.9(b) until such time as EPA considers 
in a subsequent rulemaking whether that provision should be modified 
and, in the final stay, commits to consider and address in the 
subsequent rulemaking any comments concerning (a) which, if any, 
implementation activities for a revised ozone standard (including but 
not limited to designation and classification of areas) would need to 
occur before EPA would determine that the 1-hour ozone standard no 
longer applied to an area, and (b) the effect of revising the ozone 
NAAQS on existing designations for the pollutant ozone.

II. Summary of Today's Action

    The EPA is proposing to stay its authority under the second 
sentence of 40 CFR 50.9(b) to determine that an area has attained the 
1-hour standard and that the 1-hour standard no longer applies. The EPA 
proposes that the stay shall be effective until such time as EPA takes 
final agency action in a subsequent rulemaking addressing whether the 
second sentence of 40 CFR 50.9(b) should be modified in light of the 
Supreme Court's decision in Whitman regarding implementation of the 8-
hour NAAQS. In developing a revised 8-hour implementation strategy 
consistent with the Supreme Court's decision, EPA will consider and 
address any comments concerning (a) which, if any, implementation 
activities for an 8-hour ozone standard, including designations and 
classifications, would need to occur before EPA would determine that 
the 1-hour ozone standard no longer applied to an area, and (b) the 
effect of revising the ozone NAAQS on existing designations for the 
pollutant ozone.
    The EPA plans to consider the timeframe and basis for revoking the 
1-hour standard in the implementation rulemaking that it plans to issue 
in response to the Supreme Court's remand. The EPA believes that it is 
appropriate to reconsider this issue because, at the time EPA 
promulgated Sec.  50.9(b), EPA anticipated that subpart 2 would not 
apply for purposes of implementing the revised ozone standard. It makes 
sense, in light of the many issues that are now being considered 
regarding implementation of the 8-hour standard, including the 
applicability of subpart 2 for purposes of implementing that standard, 
for EPA to consider simultaneously the most effective means to 
transition from implementation of the 1-hour standard to implementation 
of the revised 8-hour ozone NAAQS.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to review by the OMB and the requirements of the 
Executive Order. The Executive Order defines a ``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 entitlement, 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 action is not a ``significant regulatory action'' 
and was not submitted to OMB for review.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice-and-comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined in the Small

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Business Administration's (SBA) regulations at 13 CFR 12.201; (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    This action will not impose any requirements on small entities. 
This action proposes to stay EPA's authority under the second sentence 
of 40 CFR 50.9(b) to determine that an area has attained the 1-hour 
standard and that the 1-hour standard no longer applies. It does not 
establish requirements applicable to 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 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 by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of 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 laws. 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 UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This proposed action also does not impose any additional 
enforceable duty, contain any unfunded mandate, or impose any 
significant or unique impact on small governments as described in UMRA. 
Because today's action does not create any additional mandates, no 
further UMRA analysis is needed.

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'' are 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.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. The EPA also may not issue a 
regulation that has federalism implications and that preempts State 
law, unless the Agency consults with State and local officials early in 
the process of developing the proposed regulation.
    This proposed action 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. This action stays the language 
of 40 CFR 50.9(b) regarding EPA's authority to take action and imposes 
no additional burdens on States or local entities; it does not change 
the existing relationship between the national government and the 
States or the distribution of power and responsibilities among the 
various branches of government. Thus, the requirements of section 6 of 
this Executive Order do not apply to this proposed rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have Tribal implications.'' This proposed rule does not 
have Tribal implications, as specified in Executive Order 13175, 
because it will not have a substantial direct effect on one or more 
Indian Tribes, on the relationship between the Federal Government and 
Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes. Today's action does 
not significantly or uniquely affect the communities of Indian Tribal 
governments, and does not impose substantial direct compliance costs on 
such communities. Thus, Executive Order 13175 does not apply to this 
proposed rule.

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

    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 action is not 
``economically significant'' as defined under Executive Order 12866 and 
there are no environmental health risks or safety risks addressed by 
this rule.

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

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

I. National Technology Transfer Advancement Act

    Section 12 of the National Technology Transfer Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing new regulations. To comply with 
NTTAA, EPA must

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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.

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

Populations

    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 proposed 
action to stay EPA's authority under 40 CFR 50.9(b) related to 
applicability of the 1-hour ozone standard does not have a 
disproportionate adverse effect on minorities and low-income 
populations.

List of Subjects in 40 CFR Part 50

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

    Dated: December 19, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons set forth in the preamble, part 50 of chapter I of 
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. 7410, et seq.

    2. Section 50.9 is proposed to be amended by adding paragraph (c) 
to read as follows:


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

* * * * *
    (c) EPA's authority under paragraph (b) of this section to 
determine that an area has attained the 1-hour standard and that the 1-
hour standard no longer applies is stayed until such time as EPA issues 
a final rule revising or reinstating such authority.

[FR Doc. 02-32577 Filed 12-26-02; 8:45 am]
BILLING CODE 6560-50-P