

[Federal Register: September 21, 2007 (Volume 72, Number 183)]
[Rules and Regulations]               
[Page 53952-53955]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21se07-15]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2003-0090; FRL-8469-8]
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 September 14, 2007 to November 20, 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 was litigation 
regarding the deferral of the effective date for the Denver EAC and 
that the parties were discussing settlement. Thus, in the interest of 
maintaining the status quo while settlement discussion proceeded, EPA 
issued a brief further deferral of the effective date of the 
nonattainment designation until September 14, 2007. The parties are 
continuing settlement discussions. 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 September 14, 2007 to November 20, 2007.

DATES: Effective Date: This final rule is effective on September 14, 
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 

Building, EPA Headquarters Library, Room 3334, located at 1301 
Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room 
Hours of operation will be 8:30 a.m. to 4:30 p.m. Eastern Standard Time 
(EST), 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. 
The Air and Radiation Docket Information Center's e-mail address is 
a-and-r-Docket@epa.gov, and Web address is: http://www.epa.gov/oar/


docket.html. In addition, we have placed a copy of the rule and a 
variety of materials relevant to EAC 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.

[[Page 53953]]

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 Is the Final Action for the Denver Early Action Compact 
Area?
V. 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 September 14, 2007 to November 20, 2007.

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

    For discussions on 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 and Denver 
specifically please refer to the Federal Register dated June 28, 2007 
(72 FR 35356). In addition, 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.
    Since the June 28, 2007, rulemaking, all compact areas submitted 
their 6 month progress reports by June 30, 2007 as required. These 
reports were reviewed and approved by EPA. You may find copies of all 
progress reports at http://www.epa.gov/ttn/naaqs/ozone/eac/index.htm#List
.


IV. 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 FR 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 allow the 
settlement process to continue, we are taking final action at this time 
to issue a short further deferral of the effective date of designation 
for Denver until November 20, 2007. By November 20, 2007, EPA will: (i) 
Evaluate the 8-hour ozone air quality data for the Denver EAC area from 
2005, 2006 and the first three quarters of 2007; and, (ii) if the data 
do not indicate a violation of the 8-hour ozone standard, issue a final 
rule further extending the deferral of the effective date of the 
nonattainment designation until April 15, 2008; and, (iii) if the data 
indicate a violation, take no further action and the nonattainment 
designation will become effective November 20, 2007.
    We are taking this action pursuant to our March 1, 2007 proposed 
rule whereby we proposed to extend the effective date of the 
designation until April 15, 2008. We incorporate by reference our 
responses to the comments received on that proposal, which were 
included in our June 28, 2007 final rule extending the deferral of the 
effective date for the Denver EAC area until September 14, 2007.
    This action will be effective September 14, 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.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (E.O.) 12866 (58 FR 51735; October 4, 1993) 
and is therefore not subject to review under the E.O.

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 final 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 final 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

[[Page 53954]]

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.

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 No. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by VCS bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable VCS.
    This 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,

[[Page 53955]]

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 September 14, 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 November 20, 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).

    Dated: September 12, 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 November 20, 
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 
November 20, 2007.
* * * * *
[FR Doc. E7-18357 Filed 9-20-07; 8:45 am]

BILLING CODE 6560-50-P
