[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 
[email protected].

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 [email protected], 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