

[Federal Register: June 28, 2007 (Volume 72, Number 124)]
[Rules and Regulations]               
[Page 35356-35362]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jn07-7]                         


[[Page 35356]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2003-0090; FRL-8332-2]
RIN 2060-AO05

 
Extension of the Deferred Effective Date for 8-Hour Ozone 
National Ambient Air Quality Standards for the Denver Early Action 
Compact

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action to extend the deferral of the 
effective date of the 8-hour ozone National Ambient Air Quality 
Standard (NAAQS) designation for the Denver Early Action Compact (EAC) 
from July 1, 2007 to September 14, 2007. The EAC areas have agreed to 
reduce ground-level ozone pollution earlier than the Clean Air Act 
(CAA) requires. On November 29, 2006, EPA extended the deferred 
effective date for the Denver EAC area from December 31, 2006, to July 
1, 2007. In that final rulemaking, EPA noted that there were issues 
with Denver's EAC that would need to be addressed before EPA would 
extend their deferral until April 15, 2008. The action extending the 
deferral to July 2007 was challenged, and the parties are discussing 
settlement. EPA is now issuing a short further deferral to preserve the 
status quo as settlement discussion take place. EPA is issuing at this 
time a short further deferral of the effective date of Denver's 
designation for the 8-hour ozone standard from July 1, 2007 to 
September 14, 2007.

DATES: Effective Date: This final rule is effective on June 28, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2003-0090. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
http://www.regulations.gov or in hard copy at the Docket, EPA/DC, EPA West, 

Room 3334, 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 is (202) 566-1742. In addition, we have 
placed a copy of the rule and a variety of materials relevant to Early 
Action Compact areas on EPA's Web site at http://www.epa.gov/ttn/naaqs/ozone/eac/
.


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

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    This action applies only to the Denver EAC area.

B. How Is This Document Organized?

    The information presented in this preamble is organized as follows:

Outline

I. General Information
    A. Does This Action Apply to Me?
    B. How Is This Document Organized?
II. What Is the Purpose of This document?
III. What Action Has EPA Taken to Date for Early Action Compact 
Areas?
IV. What Progress Has the Denver Early Action Compact Area Made?
V. What Comments Did EPA Receive on the March 1, 2007 Proposal To 
Extend the Deferral of the Effective Date of the Nonattainment 
Designation for the Denver Early Action Compact?
VI. What Is the Final Action for the Denver Early Action Compact 
Area?
VII. What Is EPA's Schedule for Taking Further Action for Early 
Action Compact Areas?
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Petitions for Judicial Review

II. What Is the Purpose of This Document?

    The purpose of this document is to issue a short further deferral 
of the effective date of the 8-hour ozone nonattainment designation for 
the Denver EAC area from July 1, 2007 to September 14, 2007.

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

    This section discusses EPA's actions to date with respect to 
deferring the effective date of nonattainment designations for certain 
areas of the country that are participating in the EAC program. The 
EPA's April 30, 2004, air quality designation rule (69 FR 23858) 
provides a description of the compact approach, the requirements for 
areas participating in the compact and the impacts of the compact on 
those areas.
    On December 31, 2002, we entered into compacts with 33 communities. 
To receive the first deferral, these EAC areas agreed to reduce ground-
level ozone pollution earlier than the CAA would require. The EPA 
agreed to provide an initial deferral of the nonattainment designations 
for those EAC areas that did not meet the 8-hour ozone NAAQS as of 
April 30, 2004, and to provide subsequent deferrals contingent on 
performance vis-[agrave]-vis certain milestones. On December 16, 2003 
(68 FR 70108), we published our proposed rule to defer until September 
30, 2005, the effective date of designation for EAC areas that did not 
meet the 8-hour ozone NAAQS. Fourteen of the 33 compact areas did not 
meet the 8-hour ozone NAAQS.
    Our final designation rule published April 30, 2004 (69 FR 23858), 
as amended June 18, 2004 (69 FR 34080), included the following actions 
for compact areas: deferred the effective date of nonattainment 
designation for 14 compact areas until September 30, 2005; detailed the 
progress compact areas had made toward completing their milestones; 
described the actions/milestones required for compact areas in order to 
remain eligible for a deferred effective date for a nonattainment 
designation; detailed EPA's schedule for taking further action to 
determine whether to further defer the effective date of nonattainment 
designations; and described the consequences for compact areas that do 
not meet a milestone.

[[Page 35357]]

    In the April 2004 action, we also discussed three compact areas 
which did not meet the March 31, 2004, milestone: Knoxville, Memphis, 
and Chattanooga, Tennessee. Knoxville and Memphis were designated 
nonattainment effective June 15, 2004. Chattanooga was later determined 
to have met the March 31, 2004, milestone, and we deferred the 
designation date until September 30, 2005 (69 FR 34080). This brought 
the number of participating compact areas to 31. Since then, two 
additional areas, Haywood and Putnam Counties, Tennessee have withdrawn 
from the program, leaving the participating number of compact areas at 
29.
    On August 29, 2005, we published a final rule extending the 
deferred effective date of designation from September 30, 2005, to 
December 31, 2006, for the same 14 compact areas. In order to receive 
this second deferral, EAC areas needed to submit a State Implementation 
Plan (SIP) with locally adopted measures and a modeled attainment 
demonstration by December 31, 2004. The EPA approved the SIP revisions 
as meeting the EAC Protocol and EPA's EAC regulations at 40 CFR 81.300, 
and these approvals were the basis for extending the deferred effective 
date until December 31, 2006. Information on local measures, SIP 
submittals and background on the EAC program may be found on EPA's Web 
site at: http://www.epa.gov/ttn/naaqs/ozone/eac/.

    On November 29, 2006, we published a final rule extending the 
deferred effective date of designation for 13 EAC areas from December 
31, 2006, to April 15, 2008, and for the Denver EAC area until July 1, 
2007. For that deferral, all compact areas were required to submit two 
progress reports, one by December 30, 2005, and the other by June 30, 
2006. In these progress reports, the States provided information on 
progress towards implementing local control measures that were 
incorporated in their SIPs. Each of the EAC areas submitted the 
required progress reports and these reports are available at http://www.epa.gov/ttn/naaqs/ozone/eac/.
 Issues were noted by the State of 

Colorado with the Denver EAC area regarding emissions from oil and gas 
exploration and production condensate tanks. In a report and action 
plan submitted by the State of Colorado to EPA, dated June 2, 2006, the 
State provided information that indicated volatile organic compound 
(VOC) emissions from oil and gas operations within the Denver EAC area 
were higher than had been estimated in the attainment demonstration 
modeling. In response to this issue, the State of Colorado initiated 
public rulemaking activities to amend Colorado's Regulation No. 7 to 
require additional emissions reductions from oil and gas exploration 
and production condensate tanks to achieve the level of reductions 
relied on in the EPA-approved modeled attainment demonstration. 
However, an issue arose because the State's rulemaking efforts before 
the Colorado Air Quality Commission (AQCC) in the latter part of 2006 
would not be completed before EPA needed to publish a final rule for 
the last deferral of the effective date of the nonattainment 
designations for all of the EAC areas (see 71 FR 69022, November 29, 
2006).
    Based on the above information, EPA decided to defer the effective 
date of the nonattainment designation for the Denver EAC area until 
July 1, 2007. This decision was designed to accommodate the necessary 
State rulemaking activities and to also ensure that continued progress 
was made on the Regulation No. 7 rulemaking actions as they proceeded 
before the AQCC and State Legislature. In our November 29, 2006, final 
rulemaking, we detailed a timeline for subsequent rulemaking action for 
the Denver EAC area.
    Since the November 29, 2006, rulemaking, all compact areas 
submitted their six month progress reports in December 2006 as 
required. These reports were reviewed and approved by EPA. You may find 
copies of the December progress reports at http://www.epa.gov/ttn/naaqs/ozone/eac/index.htm#List
.


IV. What Progress Has the Denver Early Action Compact Area Made?

    On December 31, 2006, the State of Colorado submitted their 
progress report for the Denver EAC area to EPA indicating that progress 
had been made in several areas. On September 21, 2006 the Colorado 
Department of Public Health and Environment's (CDPHE) Air Pollution 
Control Division (APCD) presented proposed revisions to Colorado's 
Regulation No. 7, before the Colorado AQCC, for a more stringent 
regulatory scheme to control VOCs from oil and gas exploration and 
production condensate tanks located in the Denver EAC area. These 
proposed revisions to Section XII of Regulation No. 7 were amended and 
adopted by the AQCC on December 17, 2006 along with associated 
revisions to the EPA-approved Denver EAC Ozone Action Plan. These AQCC 
rulemaking actions are for the purpose of achieving the required VOC 
emissions reductions from the oil and gas exploration and production 
condensate tanks that are located within the Denver EAC area boundary. 
In addition, the State continues working with all parties to reduce 
emissions of ozone and its precursors.
    The EPA's deferral of the effective date of the nonattainment 
designation of the Denver EAC area was based upon the actions of the 
AQCC on December 17, 2006, to approve revisions to Colorado's 
Regulation No. 7 and also in consideration of the review of those AQCC-
approved revisions, from January 15, 2007, to February 15, 2007, by the 
Colorado State Legislature. The State Legislature did not object or 
seek further review of the December 17, 2006, actions of the AQCC, 
which meant that all changes to Regulation No. 7 were automatically 
adopted and were to be submitted to EPA for final approval and 
incorporation into the SIP. The changes in Regulation 7 contain a 
compliance date of May 1, 2007, which is just before the beginning of 
the Colorado high ozone season.

V. What Comments Did EPA Receive on the March 1, 2007 Proposal To 
Extend the Deferral of the Effective Date of the Nonattainment 
Designation for the Denver Early Action Compact?

    We received 12 comments on the proposed rule to extend the deferred 
effective date of the nonattainment designation for the Denver EAC to 
April 15, 2008. We have responded to the comments in this section.
    Comment: Two commenters stated that EPA lacks authority under the 
CAA to defer the effective date of nonattainment designations (in 
particular as this applies to the Denver EAC); enter into EACs with 
areas; and allow areas to be relieved of obligations under Title I, 
Part D of the CAA while they are violating the 8-hour ozone standard or 
are designated nonattainment for that standard.
    Response: We have determined that EACs as designed, give local 
areas and the State the flexibility to develop their own approach to 
meeting the 8-hour ozone standard. In this case, the State of Colorado 
is serious in its commitment and has made progress implementing State 
and local measures for controlling emissions from sources earlier than 
the CAA would otherwise require. People living in the Denver 
metropolitan area and other EAC areas are already breathing healthier 
air due to reductions in ozone pollution achieved by the EAC attainment 
plan and these benefits would not otherwise have been realized until 
after June 2007 if the Denver EAC and other EAC areas had been 
designated nonattainment.

[[Page 35358]]

    Comment: One commenter expressed concerns that if Denver violated 
the 8-hour ozone standard, EPA would not designate the area 
nonattainment.
    Response: EPA's requirements for EAC areas are codified at 40 CFR 
81.300, and ensure that if Denver violates the 8-hour ozone standard, 
the nonattainment designation for the area will take effect. Under 
these provisions, States with EAC areas have until December 31, 2007, 
to demonstrate attainment of the 8-hour ozone NAAQS. If an EAC area 
does not attain the 8-hour ozone standard, the nonattainment 
designation becomes effective as of April 15, 2008. See 40 CFR 
81.300(e)(3)(ii)(C). The area will then be subject to the full planning 
requirements of title I, part D of the CAA. 40 CFR 81.300 requires 
former EAC areas that are designated nonattainment to submit a revised 
attainment demonstration SIP within 1 year of the effective date of the 
nonattainment designation.
    Comment: The emissions reductions from the final revised Regulation 
No. 7 will be less than reductions that would have been achieved by the 
original proposed revisions.
    Response: We believe the modeled attainment demonstration is the 
appropriate benchmark for our consideration, not whether the original 
proposed revisions would have achieved a 77% reduction versus a 75% 
reduction achieved by the adopted rules. After EPA initially approved 
the attainment demonstration for the area, the State and EPA realized 
that the rules requiring reductions of VOC emissions from condensate 
tanks did not achieve the level of reduction relied on as part of the 
modeled attainment demonstration. This is because growth in condensate 
tank flash emissions was significantly greater than anticipated. 
According to the State's updated inventory projections and 
calculations, the 75% reduction of VOC emissions required by Section 
XII of Colorado's revised Regulation No. 7 is consistent with the 
control scenario inventory value for 2007 (91.3 tons per day) relied on 
in the modeled attainment demonstration. See the Colorado Air Pollution 
Control Division's presentation for the rulemaking hearing on the 
revisions to Regulation No. 7, which can be found at http://www.cdphe.state.co.us/ap/reg7/Reg7AQCCDec.pdf
.

    Comment: Due to the change to weekly calculations of emissions and 
the use of a system-wide approach, APCD and citizens won't know if 
required reductions are met until after the fact. Citizens will not be 
able to react in time to prevent unhealthy ozone pollution if companies 
fail to meet the required emissions reductions.
    Response: While we originally favored the threshold approach, we 
believe the system-wide approach is enforceable and will lead to the 
projected reductions. We already approved a system-wide approach when 
we approved the previous revisions to Regulation No. 7 (See 70 FR 
48652, August 19, 2005). We believe the current revisions make 
significant improvements to the original approach that will lead to 
improved compliance. We note that with any emission limit, compliance 
is judged after the fact. The commenter did not provide (and EPA is not 
aware of) any support for his concern that weekly calculations will 
significantly alter EPA's, the State's or a citizen's ability to 
address violations in a timely way.
    Comment: The commenter is concerned that the Denver EAC area's 
ozone levels approached unhealthy levels in 2006.
    Response: EPA agrees that several exceedances of the 8-hour ozone 
NAAQS were observed in the Denver EAC area's air quality monitoring 
network in 2006. However, even with these exceedances none of the 
ambient air quality monitors in the 8-hour ozone monitoring network 
recorded a violation of the 8-hour ozone NAAQS. Further, we note that 
the ambient air quality monitors for the Denver EAC area have shown 
attainment of the 8-hour ozone NAAQS for the periods, 2002 through 
2004, 2003 through 2005, and 2004 through 2006. Although the Denver EAC 
area has not violated the standard for the past three 3-year periods, 
EPA notes that air quality in the area remains very close to the 
standard, indicating that the additional emission reductions revised 
Regulation No. 7 will achieve are important to ensure that air quality 
in the area remains below the standard. EPA notes the commenter's 
concerns for the potential for a violation of the 8-hour ozone NAAQS 
during the 2007 ozone season. If this happens, the area will be 
designated nonattainment.
    Comment: It is unclear how deferring Denver's nonattainment 
designation will further the goal of reducing ozone pollution/
protecting health.
    Response: We believe that the EAC has already achieved reductions 
in ozone precursor emissions that would not yet have been achieved had 
Denver followed the traditional nonattainment designation pathway. The 
State's and the area's desire to achieve an attainment designation has 
led to two rounds of significant revisions to Colorado's Regulation No. 
7, revisions that are already reducing ozone pollution in the area. If 
the area had been designated nonattainment on June 15, 2004, an 
attainment demonstration SIP wouldn't have been due until June 15, 
2007. Thus, with the EAC, emission reductions have been achieved 
earlier than they would have been under the standard designation 
procedures.
    Comment: The commenter notes that the Denver EAC has fallen short 
of achieving the planned reductions in emissions of ozone forming 
compounds from condensate tanks.
    Response:  The commenter is correct that actual growth in flash 
emissions of VOCs has significantly exceeded the State's projections in 
the original Denver EAC SIP as approved by EPA on August 19, 2005 (70 
FR 48652). The State identified this issue in its June 2, 2006, EAC 
progress report and has since taken steps to address it.
    We explain this more fully in our final rule of November 29, 2006 
(71 FR 69022). In that final rule, we discuss the State's 
acknowledgement of the increase in VOC emissions from oil and gas 
activities, the State's report of June 2, 2006, detailing these 
findings (see 71 FR 69023), and the State's rulemaking efforts to 
achieve the necessary additional emission reductions to meet the 
projections relied upon in the EPA-approved attainment demonstration 
(see 71 FR 69025.) As noted in our proposed rule of March 1, 2007 (72 
FR 9285), the State revised Colorado's Regulation No.7, ``Emissions of 
Volatile Organic Compounds,'' to require additional emission reductions 
from oil and gas exploration and production condensate tanks to achieve 
the level of reductions relied on in the EPA-approved modeled 
attainment demonstration. The Colorado AQCC approved these revisions to 
Regulation No. 7 on December 17, 2006. Thus, the State has taken the 
steps necessary to address the shortfall in emission reductions under 
the prior version of Colorado's Regulation No. 7.
    Comment: The commenter expresses concerns with emissions of ozone 
forming compounds from other oil and gas exploration and production 
activities that were not addressed as part of the Denver EAC attainment 
demonstration, such as emissions from drill rigs, well completions, 
fugitive leaks, water tanks, and heater treaters. According to the 
commenter, oil and gas drilling has increased north of Denver, and 
infrared photography shows the potentially large amount of fugitive 
emissions from condensate tanks.
    Response: We note that the State is not required to control all 
emission sources as part of its SIP. Instead, the goal of the SIP 
program is to ensure that

[[Page 35359]]

sources are controlled to ensure that the area will attain and maintain 
the relevant NAAQS. The State is free to choose the mix of sources 
necessary to achieve that goal and EPA cannot second guess the State if 
the plan demonstrates compliance with the NAAQS. At the time the State 
was conducting the modeling for the attainment demonstration, flash 
emissions from condensate tanks were considered the most significant 
source of largely uncontrolled VOC emissions. As a result, the State 
targeted control of these emissions as the best means to attain the 8-
hour ozone standard. By correcting the defects in the regulation 
regulating these sources, we believe the State's plan will demonstrate 
attainment and maintenance of the 8-hour NAAQS and we cannot disapprove 
the plan on the basis that the State has not chosen to regulate certain 
other sources to reach this goal.
    Regarding fugitive emissions and infrared photography, we note that 
photos at one source may not be representative of emissions at another 
source, and the infrared photos shown tell us nothing about the VOC 
concentrations in the emissions.
    Comment: The commenter is concerned that 29 reciprocating internal 
combustion engines have been granted exemptions from installing 
pollution controls to reduce emissions of VOCs and nitrogen oxide 
(NOx). The commenter indicates that Kerr-McGee has simply failed to 
install the controls at 11 of its internal combustions engines.
    Response: Certain reciprocating internal combustion engines have 
been granted exemptions from controlling emissions of VOCs because they 
meet the exemption criteria stipulated in section XVI of Colorado's 
Regulation No. 7. EPA approved the control requirements and these 
exemption criteria for internal combustion engines when it approved the 
rest of Colorado's Regulation No. 7 on August 19, 2005 (see 70 FR 
48652).
    Regarding Kerr-McGee's 11 engines, the State has issued a Notice of 
Violation and is currently negotiating a settlement with Kerr-McGee to 
control emissions from these engines. In other words, the State is 
taking appropriate steps to ensure compliance with the EAC plan and 
Colorado's Regulation No. 7.
    Comment: The commenter is concerned that the modeling for the EAC 
may have underestimated emissions due to the reactivity of VOC 
emissions.
    Response: The reactivity of VOC emissions is embedded as a function 
in the EPA-approved CAMx dispersion model that the State 
used to model attainment in the Denver EAC area. Measured values for 
the various VOCs are input into the CAMx model, and the 
model's embedded Carbon Bond photochemical algorithm processes these 
values to produce an estimate of ozone concentrations. This algorithm 
has reactivity profiles for each VOC chemical species already built 
into it. We don't adjust the reactivities for individual SIP 
applications--the Carbon Bond mechanism is a ``canned'' algorithm. 
While the commenter is correct that alkanes as a group may be more 
reactive as an ozone precursor in an urban atmosphere where there are 
more compounds with which to react, the Carbon Bond mechanism already 
accounts for this; the reactivity profiles account for a higher degree 
of chemical reactivity in a polluted urban environment. We note that 
the State's contractor utilized the most current version of 
CAMx when it conducted the dispersion modeling in 2003 and 
early 2004.
    Comment: The commenter noted that industry is failing to fully 
comply with the required emission reductions from flash emissions from 
condensate tanks as required under the EAC.
    Response: While EPA agrees that compliance with the control 
requirements in the approved attainment demonstration has not been 
100%, we note that the State is taking appropriate steps to achieve the 
compliance effectiveness to support the EAC. We note the table provided 
in the commenter's letter presents historical information from 2005.
    On December 31, 2006, the State submitted a progress report for the 
Denver EAC area to EPA indicating that progress has been made in 
several areas. Additional compliance data collected by the State 
indicated overall control for the 2006 ozone season met Regulation No. 
7's 47.5% VOC emission reduction requirement. This is because some 
larger sources achieved greater reductions than required. For those 
sources that did not meet the regulation's requirements, the State is 
pursuing enforcement/negotiations to ensure compliance.
    Additionally, the table the commenter cites may not accurately 
address those condensate tanks that were exempt from the requirements 
of section XII of Regulation No. 7. For example, the entry for Machii 
Ross shows uncontrolled emissions of 17.04 tons per year which would 
have made this an exempt facility; at that time, controls were only 
required if emissions were 30 tons per year or greater.
    Finally, compliance shortcomings are not unusual when an activity 
or industry is first regulated. We have no reason to think that 
compliance would have been better if the area had been designated 
nonattainment. If the State had not moved to rectify the problems, we 
would be very concerned. However, we believe the State is taking 
appropriate steps to ensure compliance with the EAC attainment plan and 
Colorado's Regulation No. 7, and we believe these steps will result in 
rates of compliance consistent with projections.
    Comment: The commenter raises a concern that the revisions to 
Colorado's Regulation No. 7, adopted by the AQCC on December 17, 2006, 
have not been incorporated into the Colorado SIP.
    Response: The commenter is correct that the revisions to Regulation 
No. 7 have not been federally-approved and incorporated into Colorado's 
SIP. However, as described in our proposed rule of March 1, 2007 (72 FR 
9285), the revisions to Colorado's Regulation No. 7 made it through 
Colorado's Legislative review process without changes, and we expect to 
receive the Governor's submittal of the revisions for our approval 
shortly. Once we receive the submittal, we intend to expedite our 
action on it.
    In the meantime, the Regulation No. 7 revisions have been adopted 
by the State and are fully enforceable by the State. Sources must start 
complying with the revised regulation by May 1, 2007. As indicated in 
response to previous comments, the State is taking appropriate steps to 
ensure compliance with the regulation, and we fully expect the State 
will continue its efforts.

VI. What Is the Final Action for the Denver Early Action Compact Area?

    Rocky Mountain Clean Air Action (RMCAA) challenged our action 
deferring the effective date of the nonattainment designation of the 
Denver EAC area until July 1, 2007. 71 Fed. Reg. 69022 (November 29, 
2006). Rocky Mountain Clean Air Action v. EPA, D.C. Cir. No. 07-1012. 
We are currently in settlement discussions with RMCAA. In order to 
preserve the status quo while we continue settlement discussions, we 
are taking final action at this time to issue a short further deferral 
of the effective date of designation for Denver until September 14, 
2007. We are leaving open our proposal to the extent that we initially 
proposed to extend the deferral to as late as April 15, 2008. We may in 
the future take additional final action pursuant to that proposal to 
extend the deferral beyond September 14, 2007.

[[Page 35360]]

    This action will be effective June 28, 2007. Because this action 
will relieve a restriction by further deferring the effective date of 
the nonattainment designation for the Denver EAC area, the requirement 
of section 553(d) of the Administrative Procedure Act that a rule not 
take effect earlier than 30 days following publication does not apply.

VII. What Is EPA's Schedule for Taking Further Action for Early Action 
Compact Areas?

    All EAC areas have one remaining milestone which is to demonstrate 
attainment with the 8-hour ozone NAAQS by December 31, 2007. No later 
than April 15, 2008, we will determine whether the compact areas that 
received a deferred effective date of April 15, 2008, attained the 8-
hour ozone NAAQS by December 31, 2007, and met all compact milestones. 
If the area did not attain the standard, the nonattainment designation 
will take effect. If the compact area attained the standard, EPA will 
designate the area as attainment. Any compact area that did not attain 
the NAAQS and thus has an effective nonattainment designation will be 
subject to the full planning requirements of title I, part D of the 
CAA, and the area will be required to submit a revised attainment 
demonstration SIP within 1 year of the effective date of designation.

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action'' in that it may raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the EO. 
Accordingly, EPA submitted this action to the Office of Management and 
Budget (OMB) for review under EO 12866 and any changes made in response 
to OMB recommendations have been documented in the docket for this 
action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This final rule does not require the collection of any information.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
The OMB control numbers for EPA's regulations in 40 CFR are listed in 
40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the Agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business that 
is a small industrial entity as defined in the Small Business 
Administration's (SBA) regulations at 13 CFR 121.201; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this rule will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any requirements on small entities. Rather, this 
rule would extend the deferred effective date of the nonattainment 
designation for the Denver area to implement control measures and 
achieve emissions reductions earlier than otherwise required by the CAA 
in order to attain the 8-hour ozone NAAQS.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This final rule does not contain a Federal mandate that may result 
in expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or the private sector in any 1 year. In 
this final rule, EPA is deferring the effective date of nonattainment 
designation for the Denver EAC. Thus, this final rulemaking is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments because this rule does not contain Federal mandates.

[[Page 35361]]

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the E.O. 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The CAA establishes the scheme 
whereby States take the lead in developing plans to meet the NAAQS. 
This final rule would not modify the relationship of the States and EPA 
for purposes of developing programs to implement the NAAQS. Thus, E.O. 
13132 does not apply to this final rule.

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

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

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 E.O. 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.
    This final rule is not subject to the Executive Order 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 or safety risks addressed by this action present a 
disproportionate risk to children.

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

    This final rule is not subject to E.O. 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 E.O. 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards (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 final rule does not involve technical standards. Therefore, 
EPA is not considering the use of any VCS. The EPA will encourage 
States that have compact areas to consider the use of such standards, 
where appropriate, in the development of their SIPs.

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

    Executive Order 12898 (59 FR 7629; Feb. 16, 1994 establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The health and environmental risks associated with ozone 
were considered in the establishment of the 8-hour, 0.08 ppm ozone 
NAAQS. The level is designed to be protective with an adequate margin 
of safety.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 28, 2007.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the District of Columbia Circuit by August 27, 2007. Filing a petition 
for reconsideration by the Administrator of this final rule does not 
affect the finality of this rule for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
must be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See CAA Section 307(b)(2).

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control.

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


[[Page 35362]]


    Dated: June 22, 2007.
Stephen L. Johnson,
Administrator.

0
For the reason set out in the preamble, title 40, chapter I of the Code 
of Federal Regulations is amended as follows:

PART 81--[AMENDED]

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

0
2. Section 81.300 is amended by revising the last sentence in paragraph 
(e)(3)(i) to read as follows:


Sec.  81.300  Scope.

* * * * *
    (e) * * *
    (3) * * *
    (i) General. * * * The Administrator shall defer until September 
14, 2007 the effective date of a nonattainment designation of the 
Denver area.
* * * * *

0
3. In Sec.  81.306, the table entitled ``Colorado-Ozone (8-Hour 
Standard)'' is amended by revising footnote 2 to read as follows:


Sec.  81.306  Colorado.

* * * * *
Colorado-Ozone (8-Hour Standard)
* * * * *
    \2\ Early Action Compact Area, effective date deferred until 
September 14, 2007.
* * * * *
 [FR Doc. E7-12570 Filed 6-27-07; 8:45 am]

BILLING CODE 6560-50-P
