[Federal Register Volume 64, Number 121 (Thursday, June 24, 1999)]
[Proposed Rules]
[Pages 33962-33967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15829]
Federal Register / Vol. 64, No. 121 / Thursday, June 24, 1999 /
Proposed Rules
[[Page 33962]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-6364-7]
Findings of Significant Contribution and Rulemaking on Section
126 Petitions for Purposes of Reducing Interstate Ozone Transport
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In today's action, EPA is proposing to amend in two respects a
final rule it recently issued under section 126 of the Clean Air Act
(CAA), acting on certain petitions related to interstate transport of
pollutants. First, EPA is proposing to grant portions of those
petitions addressed in that rule. Second, EPA is proposing to stay
indefinitely certain affirmative technical determinations made in that
rule related to such petitions, pending further developments in ongoing
litigation. EPA recently promulgated, and is publishing elsewhere in
this issue, an interim final stay of the same rule effective until
November 30, 1999. This proposal takes comment on a longer-term
resolution of the issues temporarily addressed by the interim final
stay.
The final rule addressed petitions filed by eight Northeastern
States seeking to mitigate transport of one of the main precursors of
ground-level ozone, nitrogen oxides (NOX), across State
boundaries. On April 30, 1999, EPA made final determinations that
portions of the petitions are technically meritorious.
Subsequently, two recent rulings of the U.S. Court of Appeals for
the District of Columbia Circuit (D.C. Circuit) have affected EPA's
rulemaking under section 126. In one ruling, the court remanded the 8-
hour National Ambient Air Quality Standard (NAAQS) for ozone, which
formed part of the underlying technical basis for certain of EPA's
determinations under section 126. In a separate action, the D.C.
Circuit granted a motion to stay the State implementation plan (SIP)
submission deadlines established in a related EPA action, the
NOX State implementation plan call (NOX SIP
call). In the April 30 notice of final rulemaking (NFR), EPA had
deferred making final findings under section 126 as long as States and
EPA stayed on schedule to meet the requirements of the NOX
SIP call.
In response to these rulings, EPA recently promulgated, and is
publishing elsewhere in this issue, an interim final stay of the
effectiveness of the April 30 NFR until November 30, 1999. With this
action, EPA is proposing two changes to the April 30 NFR to address the
issues raised by the rulings. EPA is also pursuing additional legal
remedies concerning these rulings.
DATES: The comment period on this notice of proposed rulemaking (NPR)
ends on August 9, 1999. Comments must be postmarked by the last day of
the comment period and sent directly to the Docket Office listed in
ADDRESSES (in duplicate form if possible). A public hearing will be
held on July 8, 1999, in Washington, DC. Please refer to SUPPLEMENTARY
INFORMATION: For additional information on the comment period and
public hearing.
ADDRESSES: Comments may be submitted to the Air and Radiation Docket
and Information Center (6102), Attention: Docket No. A-97-43, U.S.
Environmental Protection Agency, 401 M Street SW, room M-1500,
Washington, DC 20460, telephone (202) 260-7548. Comments and data may
also be submitted electronically by following the instructions under
SUPPLEMENTARY INFORMATION of this document. No confidential business
information (CBI) should be submitted through e-mail.
Documents relevant to this action are available for inspection at
the Air and Radiation Docket and Information Center (6102), Attention:
Docket No. A-97-43, U.S. Environmental Protection Agency, 401 M Street
SW, room M-1500, Washington, DC 20460, telephone (202) 260-7548 between
8:00 a.m. and 5:30 p.m., Monday though Friday, excluding legal
holidays. A reasonable fee may be charged for copying.
The public hearing will be held at the EPA Auditorium at 401 M
Street SW, Washington, DC, 20460.
FOR FURTHER INFORMATION CONTACT: Questions concerning today's action
should be addressed to Carla Oldham, Office of Air Quality Planning and
Standards, Air Quality Strategies and Standards Division, MD-15,
Research Triangle Park, NC, 27711, telephone (919) 541-3347, e-mail at
oldham.carla@epa.gov.
SUPPLEMENTARY INFORMATION:
Public Hearing
The EPA will conduct a public hearing on this NPR on July 8, 1999,
beginning at 9:00 a.m. The hearing will be held at the EPA Auditorium
at 401 M Street SW, Washington, DC, 20460. The metro stop is
Waterfront, which is on the green line. Persons planning to present
oral testimony at the hearings should notify JoAnn Allman, Office of
Air Quality Planning and Standards, Air Quality Strategies and
Standards Division, MD-15, Research Triangle Park, NC 27711, telephone
(919) 541-1815, e-mail allman.joann@epa.gov, no later than July 6,
1999. Oral testimony will be limited to five minutes each. Any member
of the public may file a written statement by the close of the comment
period. Written statements (duplicate copies preferred) should be
submitted to Docket No. A-97-43 at the above address. The hearing
schedule, including lists of speakers, will be posted on EPA's webpage
at http://www.epa.gov/airlinks prior to the hearing. A verbatim
transcript of the hearing, if held, and written statements will be made
available for copying during normal working hours at the Air and
Radiation Docket and Information Center at the above address.
Availability of Related Information
The official record for the section 126 rulemaking completed April
30, 1999, as well as the public version of the record, has been
established under docket number A-97-43 (including comments and data
submitted electronically as described below). EPA has added new
sections to that docket for purposes of the interim final stay of that
rule and today's proposed rulemaking. The public version of this
record, including printed, paper versions of electronic comments, which
does not include any information claimed as confidential business
information, is available for inspection from 8:00 a.m. to 5:30 p.m.,
Monday through Friday, excluding legal holidays. The rulemaking record
is located at the address in ADDRESSES at the beginning of this
document. In addition, the Federal Register rulemakings and associated
documents are located at http://www.epa.gov/ttn/rto/126.
Outline
I. Background
A. Findings Under Section 126 Petitions To Reduce Interstate Ozone
Transport
B. Effect of Court Decisions
1. 8-Hour NAAQS
2. Stay of Compliance Schedule for NOX SIP Call
II. Proposal
A. Indefinite Stay of Technical Determinations Based on the 8-Hour
NAAQS Pending Further Litigation Developments
B. Findings Under Section 126 and Removal of Trigger Mechanism Based
on NOX SIP Call Compliance Deadlines
III. Status of Upcoming Related Actions
A. Section 126 Control Remedy NFR
B. New Petitions
[[Page 33963]]
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Impact Analysis
B. Impact on Small Entities
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
F. Executive Order 12898: Environmental Justice
G. Executive Order 12875: Enhancing the Intergovernmental
Partnership
H. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
I. National Technology Transfer and Advancement Act
I. Background
A. Findings Under Section 126 Petitions To Reduce Interstate Ozone
Transport
On April 30, 1999, EPA took final action on petitions filed by
eight Northeastern States seeking to mitigate what they describe as
significant transport of one of the main precursors of ground-level
ozone, NOX, across State boundaries (64 FR 28250, May 25,
1999). The eight States (Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, Pennsylvania, and Vermont) filed the
petitions under section 126 of the Clean Air Act (CAA). Section 126
provides that if EPA finds that identified stationary sources emit in
violation of the section 110(a)(2)(D) prohibition on emissions that
significantly contribute to ozone nonattainment or maintenance problems
in a petitioning State, EPA is authorized to establish Federal
emissions limits for the sources.
In the April 30 NFR, EPA made final determinations that portions of
six of these petitions are technically meritorious. Specifically, with
respect to the 1-hour and 8-hour NAAQS for ozone, EPA made affirmative
technical determinations that certain new and existing emissions
sources in certain States emit or would emit NOX in amounts
that contribute significantly to nonattainment in, or interfere with
maintenance by, one or more States that submitted petitions in 1997-
1998 under section 126. The sources that emit NOX in amounts
that significantly contribute to downwind nonattainment problems are
large electric generating units (EGUs) and large non-EGUs for which
highly cost-effective controls are available.
All of the eight petitioning States requested findings under
section 126 under the 1-hour standard, and five of the petitioning
States also requested findings under the 8-hour standard. The EPA took
action under the 1-hour and 8-hour standards as specifically requested
in each State's petition. The EPA made independent technical
determinations for each standard with respect to the individual
petitions. (See the part 52 regulatory text in the April 30, 1999 NFR.)
Under the 1-hour standard, in aggregate for the 8 petitions, EPA made
affirmative technical determinations of significant contribution for
sources located in the following States and the District of Columbia:
Delaware, Indiana, Kentucky, Maryland, Michigan, North Carolina, New
Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia.
Under the 8-hour standard, in aggregate for the five petitions, EPA
made affirmative technical determinations of significant contribution
for sources located in the same States and the District of Columbia as
under the 1-hour standard plus seven additional States: Alabama,
Connecticut, Illinois, Massachusetts, Missouri, Rhode Island, and
Tennessee.
The EPA also provided that the portions of the petitions for which
EPA made affirmative technical determinations would be automatically
deemed granted or denied at certain later dates pending certain actions
by the States and EPA regarding State submittals in response to the
final NOX SIP call. Interpreting the interplay between
sections 110 and 126, EPA stated in the April 30 NFR that a State's
compliance with the NOX SIP call would eliminate the basis
for a finding under section 126 based on these petitions for sources
located in that State. See 64 FR 28271-28274. As a consequence, EPA
concluded it was appropriate to structure its action on the section 126
petitions to account for the existence of the NOX SIP call,
given that it had an explicit and expeditious schedule for compliance.
See 64 FR 28274-28277.
Under EPA's interpretation of section 126 of the CAA, a source or
group of sources is emitting in violation of the prohibition of section
110(a)(2)(D)(i) where the applicable SIP fails to prohibit (and EPA has
not remedied this failure through a FIP) a quantity of emissions from
that source or group of sources that EPA has determined contributes
significantly to nonattainment or interferes with maintenance in a
downwind State. See 64 FR 28271-28274. Under both the section 126
petitions and the NOX SIP call, EPA was operating on
basically the same set of facts regarding the same pollutants and
largely the same amounts of upwind reductions affecting the same
downwind States. Thus, where a State has complied with the
NOX SIP call and EPA has approved its SIP revision, EPA
would not find that sources in that State were emitting in violation of
the prohibition of section 110 and therefore subject to a Federal
remedy under section 126. See 64 FR 28271-28274.
In the absence of the NOX SIP call, EPA would simply
have made a finding under section 126 in the final rule as to whether
sources named in the petitions were emitting in violation of the
prohibition of section 110. However, under the NOX SIP call
there was both a requirement for States to reduce their contribution to
downwind nonattainment problems and an explicit and expeditious
schedule for States to do so. In light of this existing requirement and
a reasonable expectation that States would comply with it within a
short and known timeframe, EPA believed it was reasonable to make final
only technical determinations as to which sources would be in violation
of the prohibition of section 110 if the States or EPA failed to meet a
schedule for action based on the schedule established in the
NOX SIP call. See 64 FR 28274-28277. Deferring the actual
findings under section 126 allowed States subject to the NOX
SIP call an opportunity to comply with the NOX SIP call
before triggering the findings.
The EPA coordinated its section 126 findings with the
NOX SIP call compliance schedule in the following manner.
EPA provided that for the sources for which EPA had made an affirmative
technical determination of significant contribution, EPA would be
deemed to find that the sources emit or would emit NOX in
violation of the prohibition of section 110(a)(2)(D)(i) under the
following circumstances. First, the finding was deemed to be made for
such sources in a State if by November 30, 1999, EPA had not either (a)
proposed to approve the State's SIP revision to comply with the
NOX SIP call, or (b) promulgated a FIP for the State.
Second, the finding was deemed to be made for such sources in a State
if by May 1, 2000, EPA had not either (a) approved the State's SIP
revision to comply with the NOX SIP call, or (b) promulgated
implementation plan provisions meeting the section 110(a)(2)(D)(i)
requirements. Upon EPA's approval of a State's SIP revision to comply
with the NOX SIP call or promulgation of a FIP, the final
rule provided that corresponding portions of the petitions will
automatically be deemed denied. Also, if a finding is deemed to be
made, it will be deemed to be withdrawn, and the corresponding portions
of the petitions will also be deemed to be denied, upon EPA's approval
of a State's SIP revision to
[[Page 33964]]
comply with the NOX SIP call or promulgation of a FIP. See
40 CFR 52.34(i).
B. Effect of Court Decisions
1. 8-Hour NAAQS
On May, 14, 1999, the D.C. Circuit issued an opinion questioning
the constitutionality of the CAA authority to review and revise the
NAAQS, as applied in EPA's revision to the ozone and particulate matter
NAAQS. See American Trucking Ass'ns v. EPA No. 97-1441 and consolidated
cases (D.C. Cir. May 14, 1999). The Court stopped short of finding the
statutory grant of authority unconstitutional, instead providing EPA
with another opportunity to develop a determinate principle for
promulgating NAAQS under the statute. The court continued by addressing
other issues, including EPA's authority to classify and set attainment
dates for a revised ozone standard. Based on the statutory provisions
regarding classifications and attainment dates under sections 172(a)
and 181(a), the court's ruling curtailed EPA's ability to require
States to comply with a more stringent ozone NAAQS. The EPA has
recommended to the Department of Justice that the government seek
rehearing on this and other portions of the court's opinion. However,
EPA also believes that unless and until the court's decision is revised
or vacated, EPA should not continue implementation efforts with respect
to the 8-hour standard that could be construed as inconsistent with the
court's ruling. This reservation would not apply to any EPA actions
based on the 1-hour standard.
2. Stay of Compliance Schedule for NOX SIP Call
On May 25, 1999, the D.C. Circuit issued a partial stay of the
submission of the SIP revisions required under the NOX SIP
call. The NOX SIP call had required submission of the SIP
revisions by September 30, 1999. State Petitioners challenging the
NOX SIP Call moved to stay the submission schedule until
April 27, 2000. The D.C. Circuit issued a stay of the SIP submission
deadline pending further order of the court. Michigan v. EPA, No. 98-
1497 (D.C. Cir. May 25, 1999) (order granting stay in part).
II. Proposal
Elsewhere in this issue of the Federal Register, EPA is publishing
an interim final stay of the April 30 NFR, effective from July 26,
1999, until November 30, 1999, to provide EPA time to address the
effects of these two decisions on the April 30 NFR. As discussed below,
EPA is proposing in this action to amend the April 30 NFR to address
the issues raised by the court's rulings. The EPA is only soliciting
comment on the specific changes proposed here in response to the
court's rulings. The EPA is not reopening the remainder of the April 30
NFR for public comment and reconsideration.
The EPA expects to promulgate a final rule based on this proposal
on or before November 30, 1999, when the interim stay expires. To
address the possibility of any delay of this final rulemaking, however,
EPA is also taking comment on an extension of the interim final stay of
the April 30 NFR in the event that EPA needs more time to complete the
final rule. The EPA does not expect to need to promulgate such an
extension, but if it were necessary, EPA anticipates that a two- or
three-month extension should suffice. Providing for a possible
extension, if necessary, ensures that the automatic trigger deadlines
now in place will not become effective through a lapse in the stay
before EPA completes this rulemaking. Under this schedule, the 3-year
compliance schedule for sources subject to an affirmative finding would
still be triggered in time to ensure that the intended emissions
reductions are achieved by the start of the 2003 ozone season, as
described in the April 30 NFR.
A. Indefinite Stay of Technical Determinations Based on the 8-Hour
NAAQS Pending Further Litigation Developments
The EPA's belief, as stated above, is that unless and until the
court's decision is revised or vacated, EPA should not continue
implementation efforts under section 126 with respect to the 8-hour
standard that could be construed as inconsistent with the court's
ruling. Given this position, EPA believes that the Agency should not
now move forward with findings under section 126 based on the 8-hour
standard. Thus, EPA is proposing to stay indefinitely the affirmative
technical determinations based on the 8-hour standard, pending further
developments in the NAAQS litigation.1 This stay would
affect the 8-hour petitions filed by the States of Maine,
Massachusetts, Pennsylvania, New Hampshire, and Vermont. This stay
would also affect the affirmative technical determinations under the 8-
hour NAAQS made for sources located in the following States and the
District of Columbia: Alabama, Connecticut, Delaware, Illinois,
Indiana, Kentucky, Maryland, Massachusetts, Michigan, Missouri, North
Carolina, New Jersey, New York, Ohio, Pennsylvania, Rhode Island,
Tennessee, Virginia, and West Virginia. EPA made affirmative technical
determinations only under the 8-hour NAAQS, and not under the 1-hour
NAAQS for sources located in seven of these States. The seven states
are Alabama, Connecticut, Illinois, Massachusetts, Missouri, Rhode
Island, and Tennessee. This proposal would not affect EPA's affirmative
technical determinations under the 1-hour standard, which apply to
sources located in the following twelve States and the District of
Columbia: Delaware, Indiana, Kentucky, Maryland, Michigan, North
Carolina, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West
Virginia.
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\1\ At this time, in light of the court's order staying the SIP
submission deadline under the NOX SIP call, EPA does not
see a need to take similar action for the 8-hour portions of the
NOX SIP call rule.
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B. Findings Under Section 126 and Removal of Trigger Mechanism Based on
NOX SIP Call Compliance Deadlines
In light of the court's decision staying the compliance schedule
for the NOX SIP call, EPA believes it is no longer
appropriate to link its findings under section 126 to the compliance
schedule for the NOX SIP call by deferring making final
findings as long as States and EPA are meeting a schedule based on that
schedule. EPA believed that, while not explicitly contemplated by the
statutory language, its initial approach was a reasonable way to
address the requirement to act on the section 126 petitions in the same
general timeframe as that in which States were required to comply with
the NOX SIP call. Under this approach, EPA gave upwind
States an opportunity to address the ozone transport problem
themselves, but did not delay implementation of the remedy beyond May
1, 2003. The EPA had determined that requiring controls to be in place
for the 2003 summer ozone season, i.e., by May 1, 2003, would bring
about downwind compliance ``as expeditiously as practicable,'' as
required by Title I, and would require sources emitting in violation of
the prohibition of section 110 to reduce emissions ``as expeditiously
as practicable,'' as required by section 126. Now, in the absence of
any requirement that States submit SIP revisions under the
NOX SIP call by September 30, 1999, as previously required,
it is highly unlikely that most States will submit such revisions in
time for EPA to propose approval by November 30, 1999, and finalize
approval by May 1, 2000. Because there is no schedule for compliance
with the NOX SIP call, there is no longer a basis for the
automatic
[[Page 33965]]
trigger deadlines provided in the final rule.
The EPA also does not believe it would be appropriate to further
defer action on the section 126 petitions pending resolution of the
NOX SIP call litigation. There is no specific deadline for
the court to issue a decision in the litigation. It is possible that
the litigation would not be resolved in time for EPA to make findings
under section 126 by May 1, 2000, as EPA has determined would be
necessary to require sources to comply with the remedy by May 1, 2003.
The EPA has determined that sources are able to come into compliance
with the section 110 requirement by May 1, 2003. Thus, delay beyond
that date would not be consistent either with the section 126
requirement that sources achieve reductions as expeditiously as
practicable or with the maximum three year timeframe for sources to
achieve reductions contemplated by section 126. In the April 30 NFR EPA
explained why it made sense to provide a short delay in making the
final findings, given the NOX SIP call deadlines. This was a
practical way to address the overlap between the actions that would be
required under the NOX SIP call and under the section 126
petitions. Under the circumstances, this coordinated approach
implemented two separate statutory provisions in a manner that
attempted to carry out Congress' intent for each provision, without
interpreting one as overriding the other. However, delaying action
under section 126 without explicit and expeditious deadlines for making
the findings would in effect subordinate section 126 to section 110.
This approach would deny downwind States the remedy provided by section
126 within the timeframes clearly specified in that section. The EPA
does not believe that the plain language of the statute supports such
an approach.
In light of these circumstances, it no longer makes sense to defer
final action on the petitions and provide an automatic trigger
mechanism tied to a schedule for action on SIP revisions responding to
the NOX SIP call. Thus, EPA is proposing to delete the
automatic trigger mechanism for making findings and instead simply take
final action making findings and granting or denying the
petitions.2 Specifically, for those sources for which it has
made affirmative technical determinations, EPA is proposing to find
that the sources are emitting in violation of section
110(a)(2)(D)(i)(I) and grant those portions of the petitions.
Consistent with these proposed findings, EPA is proposing to remove the
automatic trigger mechanism that provided that EPA would have made a
finding that sources were emitting in violation of section
110(a)(2)(D)(i)(I) as of November 30, 1999 or as of May 1, 2000 if EPA
had not proposed and finalized approval of SIP revisions complying with
the NOX SIP call (or promulgated a FIP) by those dates.
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\2\ Under today's proposal, these findings would not be
effective with respect to the sources in the seven states for which
EPA is proposing to stay the affirmative technical determinations,
i.e., those sources for which the determinations were based on the
8-hour standard.
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The EPA is not proposing to change one aspect of the automatic
trigger mechanism established in the April 30 NFR. This provision would
apply not on any particular date, but in the situation where EPA has
made a finding under section 126, but the State has subsequently
submitted and EPA has approved a SIP revision complying with the
NOX SIP call (or EPA has promulgated a FIP). This situation
would arise if a state voluntarily chooses to revise its SIP consistent
with the NOX SIP call, including using the compliance date
of May 1, 2003. The final rule provided that after a finding has been
made with respect to a particular source or group of sources, the
finding will be deemed to be withdrawn, and the corresponding part of
the relevant petitions denied, if EPA approves a SIP revision or
promulgates a FIP for the relevant State that complies with the
NOX SIP call, including the compliance dates specified in
the NOX SIP call. The EPA is not proposing to change this
provision. See 64 FR 28275 for further discussion.
III. Status of Upcoming Related Actions
A. Section 126 Control Remedy NFR
The EPA proposed to implement a new Federal NOX Budget
Trading Program as the section 126 control remedy (63 FR 56292; October
21, 1998). The program will apply to all sources for which EPA makes a
final section 126 finding. The EPA intended to finalize all aspects of
the section 126 remedy by April 30, 1999. However, as discussed in the
April 30 NFR, EPA needed additional time to evaluate the numerous
comments it received on the trading program proposal and the source-
specific emission inventory data. In the April 30 NFR, EPA finalized
the general parameters of the section 126 remedy, including the
decision to implement a capped, market-based trading program,
identification of the sources subject to the program, specification of
the basis for the total tonnage cap, and specification of the
compliance date. The EPA committed to finalizing the details of the
trading program, including the unit-by-unit allocations by July 15,
1999.
As discussed in Section I.E. of the April 30 NFR, EPA entered into
a consent decree with the petitioning States that, among other things,
committed the EPA to issuing a final section 126 remedy by April 30,
1999. In order to satisfy that consent decree, EPA promulgated, on an
interim basis, emission limitations that would be imposed on individual
sources only in the event a finding under section 126 was automatically
deemed made and EPA had not yet finalized the Federal NOX
Budget Trading Program regulations. The EPA emphasized it did not
expect this default remedy, set forth in section 52.34(k), ever to be
applied because the trading program would be finalized in July 1999,
while the earliest a section 126 finding would be made was November 30
of the same year.
Because of the need to conduct this further rulemaking to address
the impact of the recent court decisions on the section 126 rulemaking,
EPA will be delaying the promulgation of the Federal NOX
Budget Trading Program for a short period of time. The EPA now intends
to finalize the trading program and make the section 126 findings in
the same rulemaking action. At that time, EPA would delete the default
remedy from the rule. Therefore, under these new circumstances, the
default remedy would also never be applied.
B. New Petitions
The EPA has recently received three additional section 126
petitions from the States of New Jersey (dated April 14, 1999),
Maryland (dated April 29, 1999), and Delaware (dated June 8, 1999).
(See Docket A-99-21.) These petitions seek findings under both the 1-
hour and 8-hour standards for large EGUs and large non-EGUs located in
specified upwind States. The EPA is currently developing a schedule to
take action on at least the 1-hour portions of these new section 126
petitions. Under section 126, EPA is required to take action to grant
or deny the petitions within 60 days of receipt. However, section
307(d) of the CAA authorizes EPA to extend the timeframe for action up
to 6 months if EPA determines that the extension is necessary to meet
the CAA's rulemaking requirements. The EPA has issued a final rule
determining that a 6-month extension for action on these petitions is
necessary to allow EPA adequate time to develop the proposals and to
provide the public sufficient time to comment. The EPA is also
evaluating these
[[Page 33966]]
petitions in light of the recent Court decisions.
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Impact Analysis
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The EPA believes that this action is not a ``significant regulatory
action.''
B. Impact on Small Entities
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), provides that
whenever an agency is required to publish a general notice of proposed
rulemaking, it must prepare and make available an initial Regulatory
Flexibility Analysis, unless it certifies that the proposed rule, if
promulgated, will not have ``a significant economic impact on a
substantial number of small entities.''
This proposal, if promulgated, will not have a significant impact
on a substantial number of small entities because it does not create
any new requirements.
With respect to the affirmative technical determinations based on
the 8-hour standard, this proposal would stay the effectiveness of
those determinations, thereby relieving regulatory requirements.
With respect to the deletion of the automatic trigger mechanism for
making findings under section 126 for sources for which EPA has made
affirmative technical determinations and the replacement of the
automatic trigger with findings in the final rule, the regulatory
requirements on sources would be unaffected by this proposed action.
Because States are no longer subject to schedule for compliance
established in the NOX SIP call, it is extremely likely that
under the April 30 NFR, the findings under section 126 for all sources
for which EPA has made affirmative technical determinations would be
automatically triggered on November 30, 1999. Making a final finding
through a separate rulemaking by November 30, 1999, rather than an
automatic finding under the existing rule, makes no practical
difference whatsoever for the resulting regulatory requirements.
Therefore, because this proposal does not create any new
requirements, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 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, 2
U.S.C. 1532, EPA generally must prepare a written statement, including
a cost-benefit analysis, for any proposed or final rule that ``includes
any Federal mandate that may result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more * * * in any one year.'' A ``Federal mandate'' is
defined to include a ``Federal intergovernmental mandate'' and a
``Federal private sector mandate'' (2 U.S.C. 658(6)). A ``Federal
intergovernmental mandate,'' in turn, is defined to include a
regulation that ``would impose an enforceable duty upon State, local,
or tribal governments (2 U.S.C. 658(5)(A)(i)), except for, among other
things, a duty that is ``a condition of Federal assistance (2 U.S.C.
658(5)(A)(i)(I)). A ``Federal private sector mandate'' includes a
regulation that ``would impose an enforceable duty upon the private
sector,'' with certain exceptions (2 U.S.C. 658(7)(A)).
The EPA has determined that this action does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector. This Federal action does not propose any new
requirements, as discussed above. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, would
result from this action.
D. Paperwork Reduction Act
This action does not propose any new information collection
requirements. Therefore, an Information Collection Request document is
not required.
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The Executive Order 13045 applies to any rule that EPA determines
is (1) ``economically significant'' as defined under Executive Order
12866, and (2) addresses an environmental health or safety risk that
has a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
proposal is not subject to Executive Order 13045, entitled ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant
under E.O. 12866 and does not involve decisions on environmental health
risks or safety risks that may disproportionately affect children.
F. Executive Order 12898: Environmental Justice
Executive Order 12898 requires that each Federal agency 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. In the April 30
NFR, the Agency referred to an analysis it conducted in conjunction
with the final NOX SIP call rulemaking. This was a general
analysis of the potential changes in ozone and PM levels that may be
experienced by minority and low-income populations as a result of the
NOX SIP call. The findings from this analysis are presented
in volume 2 of the RIA for the NOX SIP call. (Office of Air
& Radiation Docket, #A-96-56, VI-B-09(vvvv), Regulatory Impact Analysis
for the NOX SIP Call, FIP, and section 126 Petitions. Volume
2, Health and Welfare Benefits. December 1998. EPA-452/R-98-003.)
G. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal
[[Page 33967]]
government provides the funds necessary to pay the direct compliance
costs incurred by those governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 12875
requires EPA to provide to OMB a description of the extent of EPA's
prior consultation with representatives of affected State, local and
tribal governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's action does not propose a mandate on State, local or tribal
governments. The action does not propose any enforceable duties on
these entities. Accordingly, the requirements of section 1(a) of E.O.
12875 do not apply to this rule.
H. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to OMB, in a separately identified section of
the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's proposal does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not propose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this
rulemaking.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub. L. No. 104-113, directs EPA to use voluntary
consensus standards 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 voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This action does not propose any new technical standards.
Therefore, NTTAA requirements are not applicable to today's proposal.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Emissions trading,
Nitrogen oxides, Ozone transport, Reporting and recordkeeping
requirements.
Dated: June 15, 1999.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 52 of chapter I of
title 40 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
2. Section 52.34 is amended by revising paragraphs (i) and (k) to
read as follows:
Sec. 52.34 Action on petitions submitted under section 126 relating to
emissions of nitrogen oxides.
* * * * *
(i) Action on petitions for section 126(b) findings.
(1) The Administrator finds that each existing or new major source
for which the Administrator has made an affirmative technical
determination as described in paragraphs (c) through (h) of this
section as to impacts on nonattainment or maintenance of a particular
NAAQS for ozone in a particular petitioning State, emits or would emit
NOX in violation of the prohibition of Clean Air Act section
110(a)(2)(D)(i)(I) with respect to nonattainment or maintenance of such
standard in such petitioning State.
(2) Notwithstanding any other provision of this paragraph (i), a
finding under paragraph (i)(1) of this section as to a particular major
source or group of stationary sources in a particular State will be
deemed to be withdrawn, and the corresponding part of the relevant
petition(s) denied, if the Administrator issues a final action putting
in place implementation plan provisions that comply with the
requirements of 40 CFR 51.121 and 51.122 for such State.
* * * * *
(k) Stay of affirmative technical determinations with respect to
the 8-hour standard. Notwithstanding any other provisions of this
subpart, the effectiveness of paragraphs (d), (e)(3) and (e)(4), (f),
(h)(3) and (h)(4) is stayed.
[FR Doc. 99-15829 Filed 6-23-99; 8:45 am]
BILLING CODE 6560-50-P
