Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document, “we,” “us” and “our” refer to EPA.
On May 18, 2011 (76 FR 28696), EPA proposed to determine that the Sacramento Metro Area attained the 1-hour ozone standard in 2009 based on complete, quality-assured and certified ambient air quality monitoring data for the 2007-2009 monitoring period, excluding exceedances of the 1-hour ozone standard that occurred due to wildfire exceptional events in 2008.
EPA further proposed to determine that the State of California is no longer required to submit or implement section 185 fee program State Implementation Plan (SIP) provisions for the Sacramento Metro Area to satisfy anti-backsliding requirements for the revoked 1-hour ozone national ambient air quality standard (1-hour ozone NAAQS or standard).
EPA proposes to determine that the Sacramento Metro Area has attained the 1-hour ozone standard; that is, the number of expected exceedances at any site in the nonattainment area is not greater than one per year. [internal citation deleted] This proposed determination is based on three years of complete, quality-assured and certified ambient air quality monitoring data in AQS showing attainment of the 1-hour ozone standard for the 2007-2009 monitoring period, and complete, quality-assured data in AQS for 2008-2010 that show continued attainment. As explained below, in determining the area's attainment of the 1-hour ozone standard, EPA is also proposing to exclude from consideration exceedances that occurred on three days in 2008, because they are due to wildfire exceptional events.
The May 18, 2011 proposal presented monitoring data for the Sacramento Metro Area for 2007-2009, along with EPA's explication that showed the area attained the 1-hour ozone NAAQS, and continued to attain through 2010. Table 1 shows that the Sacramento Metro Area has continued to attain the 1-hour ozone NAAQS since that time, based on complete, quality-assured and certified data for 2008-2010, 2009-2011 and preliminary data available for 2010-2012.
Two other issues in the May 18, 2011 notice were addressed separately: (1) Whether, separate from determining whether the area attained the standard based on monitored air quality data, EPA could determine that such attainment was due to permanent and enforceable emissions reductions; and (2) whether EPA's proposed determinations regarding attainment and permanent and enforceable emissions reductions could support termination of the area's 1-hour ozone section 185 anti-backsliding requirements.
EPA's proposed action provided a 30-day public comment period. During this period, the following parties submitted comments:
1. Paul Cort, Earthjustice, submitted on behalf of Natural Resources Defense Council (NRDC); letter dated June 16, 2011.
2. Tim Shesteck, American Chemistry Council (ACC); letter dated June 17, 2011.
3. Zachary L. Craft, Baker Botts, LLP; letter dated June 17, 2011.
4. Catherine H. Reheis-Boyd, Western States Petroleum Association (WSPA); letter dated June 17, 2011.
5. Leslie Sue Ritts, The National Environmental Development Association's Clean Air Project (NEDA-CAP); letter dated June 18, 2011.
No adverse comments were directed at EPA's proposal to determine, based on complete, quality-assured air quality data, that the Sacramento Metro Area has attained the 1-hour ozone standard. Similarly, no adverse comments were directed at EPA's proposal to exclude certain monitored exceedances in 2008 as due to exceptional events.
NRDC submitted adverse comments relating to EPA's proposal to terminate 1-hour ozone section 185 requirements for the area, and set forth NRDC's contentions regarding additional criteria and legal bases for termination. No comments disputed EPA's proposed determination that the area has attained the 1-hour ozone standard. No adverse comments address the component of EPA's notice of proposed rulemaking that is the sole subject of today's final action—EPA's determination that the area has attained the 1-hour ozone standard based on monitored air quality since 2009, including the determination to exclude certain monitored exceedances in 2008 as due to exceptional wildfire events.
As noted above, EPA intends to address in separate rulemaking the subject of NRDC's comments—EPA's proposed termination of the Sacramento Metro 1-hour ozone section 185 requirements, and criteria for termination other than monitored attainment.
EPA is acting today to finalize only that portion of the proposal that determines, based on air quality monitoring data, that the area has attained the 1-hour ozone standard, including determining that three exceedances in 2008 are excluded from consideration because they were caused by exceptional wildfire events. This notice is not intended to address, and does not finalize, any other portion of EPA's proposal related to termination of 1-hour ozone section 185 anti-backsliding requirements in the Sacramento Metro Area. As set forth above, EPA intends to address these issues in separate, future rulemaking.
EPA is determining that the Sacramento Metro 1-hour ozone nonattainment area has attained the 1-hour ozone NAAQS based on complete, quality-assured, and certified ambient air quality monitoring data. Since 2009, and continuing through 2010 and 2011, complete, quality-assured and certified air quality data show continuous attainment. Preliminary data available for 2012 are consistent with continued attainment. EPA is also finalizing its determination to exclude from use, in determining the area has attained the 1-hour ozone standard, certain air quality monitoring data for 2008, because they meet the criteria for ozone exceptional events that are caused by wildfires. These air quality determinations were addressed separately and are severable from the other issues and criteria in the May 18, 2011 notice of proposed rulemaking that relate to termination of section 185 1-hour ozone requirements.
Apart from EPA's determination of attainment based on air quality,
This action makes a determination based on air quality data and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may 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 section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401