[Federal Register Volume 65, Number 41 (Wednesday, March 1, 2000)]
[Proposed Rules]
[Pages 11024-11027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4519]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[FRL-6542-8]
RIN 2060-AH88


Stay of the Eight-Hour Portion of the Findings of Significant 
Contribution and Rulemaking 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 a final rule it 
issued under section 110 of the Clean Air Act (CAA) related to 
interstate transport of pollutants. The EPA is proposing to stay its 
finding in the nitrogen oxides State Implementation Plan Call 
(NOX SIP Call) related to the 8-hour ozone standards.
    In the final NOX SIP Call, EPA found that emissions of 
NOX from 22 States and the District of Columbia (23 States) 
significantly contribute to downwind areas' nonattainment of the 1-hour 
ozone National Ambient Air Quality Standards (NAAQS). The EPA also 
separately found that NOX emissions from the same 23 States 
significantly contribute to downwind nonattainment of the 8-hour ozone 
NAAQS. The EPA's findings under the 8-hour standards were completely 
separate from its 1-hour findings and were an independent basis for the 
rule.
    Subsequently, the revised 8-hour ozone standards were remanded in 
American Trucking Associations, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 
1999). On October 29, 1999, a panel of the U.S. Court of Appeals for 
the District of Columbia Circuit (D.C. Circuit) granted in part and 
denied in part EPA's rehearing request in that case, and the full Court 
denied EPA's request for rehearing en banc. The panel granted rehearing 
as to certain parts of its original opinion which address EPA's 
authority to implement the 8-hour ozone NAAQS. The rehearing decision 
continues to create uncertainty with respect to EPA's ability to rely 
upon the 8-hour standards as an alternative basis for the 
NOX SIP Call at this time.

DATES: The comment period on this notice of proposed rulemaking (NPR) 
ends on April 17, 2000. 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). The EPA must receive 
requests for a hearing by March 13, 2000. 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-96-56, 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-96-56, at the above address between 8 a.m. and 5:30 p.m., 
Monday though Friday, excluding legal holidays. A reasonable fee may be 
charged for copying.

FOR FURTHER INFORMATION CONTACT: Questions concerning today's action 
should be addressed to Kimber Scavo, Office of Air Quality Planning and 
Standards, Air Quality Strategies and Standards Division, MD-15, 
Research Triangle Park, NC, 27711, telephone (919) 541-3354, e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Public Hearing

    If you contact EPA requesting a public hearing, it will be held at 
Research Triangle Park, NC. If you wish to attend the hearing or wish 
to present oral testimony, you should notify Ms. 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]. The EPA will publish a 
notice of a hearing if a hearing is requested, in the Federal Register. 
Any hearing will be strictly limited to the subject matter of the 
proposal, the scope of which is discussed below. 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-96-56 at the above address. 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 NOX SIP Call rulemaking as 
well as the public

[[Page 11025]]

version of the record, has been established under docket number A-96-56 
(including comments and data submitted electronically as described 
below). The EPA has added new sections to that docket for purposes of 
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 CBI, is available for inspection 
from 8 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/.

Outline

I. Background
    A. Findings Under Section 110 to Reduce Interstate Ozone 
Transport
    B. Court Decisions
    1. 8-Hour NAAQS
    2. Stay of SIP Submittal Schedule for NOX SIP Call
II. Proposal
III. Administrative Requirements
    A. Executive Order 12866: Regulatory Impact Analysis
    B. Unfunded Mandates Reform Act
    C. Executive Order 13132: Federalism
    D. Executive Order 13084: Consultation and Coordination With 
Indian Tribal Governments
    E. Executive Order 12898: Environmental Justice
    F. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. National Technology Transfer and Advancement Act
    I. Paperwork Reduction Act

I. Background

A. Findings Under Section 110 To Reduce Interstate Ozone Transport

    On September 24, 1998 (63 FR 57356, October 27, 1998), EPA took 
final action to prohibit specified amounts of emissions of one of the 
main precursors of ground-level ozone, NOX, from 
transporting across State boundaries in the eastern half of the United 
States. The EPA found that sources and emitting activities in 23 States 
emit NOX in amounts that significantly contribute to 
nonattainment of the 1-hour and 8-hour ozone NAAQS downwind. The EPA 
set forth requirements for each of the affected upwind States to submit 
SIP revisions prohibiting those amounts of NOX emissions 
which significantly contribute to downwind air quality problems. The 
reduction of those NOX emissions will bring NOX 
emissions in each of those States to within the resulting statewide 
NOX emissions budget levels established in the rule.

B. 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. In response to 
EPA's petition for rehearing, the D.C. Circuit on October 29, 1999 
granted in part and denied in part EPA's rehearing request. The panel 
granted rehearing as to certain parts of its original opinion, which 
address EPA's authority to implement the 8-hour ozone NAAQS. The 
rehearing decision continues to create uncertainty with respect to 
EPA's ability to rely upon the 8-hour standards as an alternative basis 
for the NOX SIP Call at this time. On January 27, 2000, the 
Administration filed a petition of certiorari with the Supreme Court 
seeking review of this opinion.
2. Stay of SIP Submittal Schedule for NOX SIP Call
    On May 25, 1999, the D.C. Circuit stayed the deadline for 
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

    The EPA is proposing in this action to amend the final 
NOX SIP Call to address the issues raised by the Court's 
rulings on the 8-hour NAAQS. 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 final NOX SIP Call 
for public comment and reconsideration.
    The EPA's belief is that EPA should not continue implementation 
efforts under section 110 with respect to the 8-hour standard that 
could be construed as inconsistent with the Court's ruling. In light of 
the uncertainty, EPA believes the most prudent course--and one 
respectful of the Court's conclusions in American Trucking--is to stay 
the findings in the SIP Call that emissions in certain States 
contribute significantly to nonattainment of the 8-hour ozone standards 
in certain downwind States.\1\ The effect of such a stay would be to 
remove the 8-hour findings as an independent basis for the SIP Call. 
Given this position, EPA believes that the Agency should not continue 
to move forward with findings under section 110 based on the 8-hour 
standard. Thus, EPA is proposing to stay indefinitely the findings of 
significant contribution based on the 8-hour standard, pending further 
developments in the NAAQS litigation. The requirements of the SIP Call, 
including the findings of significant contribution by the 23 States, 
the emissions reductions that must be achieved, and the requirement for 
States to submit SIPs meeting statewide NOX emissions 
budgets, are fully and independently supported by EPA's findings under 
the 1-hour NAAQS alone. Since the rule was based independently on the 
1-hour standards, a stay of the findings based on the 8-hour standards 
would have no effect on the required remedy. Therefore, this stay does 
not affect EPA's findings based on the 1-hour standards and the 
requirements of the SIP Call remain in effect.
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    \1\ The EPA's approach here is consistent with its action on a 
rule related to the NOX SIP Call, commonly referred to as 
the ``Section 126 Rule.'' On December 17, 1999, EPA took final 
action on the section 126 petitions. This action indefinitely stayed 
its technical findings on the 8-hour ozone standards.
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III. Administrative Requirements

A. Executive Order 12866: Regulatory Impact Analysis

    Under Executive Order 12866, (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and is 
therefore not subject to review by the Office of Management and Budget 
(OMB) because this action is simply proposing to stay its finding in 
the NOX SIP Call related to the 8-hour

[[Page 11026]]

ozone standards. The final NOX SIP Call was submitted to OMB 
for review. The EPA prepared a regulatory impact analysis (RIA) for the 
final NOX SIP Call titled ``Regulatory Impact Analysis for 
the NOX SIP Call, FIP, and Section 126 Petitions.'' The RIA 
and any written comments from OMB to EPA and any written EPA responses 
to those comments are included in the docket. The docket is available 
for public inspection at the EPA's Air Docket Section, which is listed 
in the ADDRESSES section of this preamble. This proposed action does 
not create any additional impacts beyond what was promulgated in the 
final NOX SIP Call; therefore, no additional RIA is needed.

B. Unfunded Mandates Reform Act

    This proposed action also does not impose any additional 
enforceable duty, contain any unfunded mandate, or impose any 
significant or unique impact on small governments as described in the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). The EPA 
did not reach a final conclusion as to the applicability of the 
requirements of the UMRA to the final NOX SIP Call. The EPA 
prepared a statement that would be required by UMRA if its statutory 
provisions applied and has consulted with governmental entities as 
would be required by UMRA. Because today's action does not create any 
additional mandates, no further UMRA analysis is needed.

C. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. The EPA also may not issue a 
regulation that has federalism implications and that preempts State 
law, unless the Agency consults with State and local officials early in 
the process of developing the proposed regulation.
    This proposed action does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Today's action does not impose 
an enforceable duty on these entities. This action proposes to stay its 
finding in the NOx SIP Call related to the 8-hour ozone standards and 
imposes no additional burdens beyond those imposed by the final NOx SIP 
Call. Thus, the requirements of section 6 of the Executive Order do not 
apply to this rule.

D. 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 the 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 action does not significantly or uniquely affect the 
communities of Indian tribal governments. The EPA stated in the final 
NOx SIP Call that Executive Order 13084 did not apply because the final 
rule does not significantly or uniquely affect the communities of 
Indian tribal governments or call on States to regulate NOx sources 
located on tribal lands. Accordingly, the requirements of section 3(b) 
of Executive Order 13084 do not apply to this rule.

E. Executive Order 12898: Environmental Justice

    In addition, this action does not involve special consideration of 
environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994). For the final NOx SIP Call, the 
Agency conducted a general analysis of the potential changes in ozone 
and particulate matter levels that may be experienced by minority and 
low-income populations as a result of the requirements of the rule. 
These findings are presented in the RIA. Today's action does not affect 
that analysis.

F. Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
in the Small Business Administration's (SBA) regulations at 13 CFR 
12.201; (2) a small governmental jurisdiction that is a government of a 
city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's technical 
amendment on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    This proposed action will not impose any requirements on small 
entities. This action proposes to stay its finding in the 
NOX SIP Call related to the 8-hour ozone standards and does 
not itself establish requirements applicable to small entities.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This proposed action also is not subject to Executive Order 13045

[[Page 11027]]

(Protection of Children from Environmental Health Risks and Safety 
Risks) (62 FR 19885, April 23, 1997) because EPA interprets Executive 
Order 13045 as applying only to those regulatory actions that are based 
on health or safety risks, such that the analysis required under 
section 5-501 of the Order has the potential to influence the 
regulation. This action is not subject to Executive Order 13045 because 
it does not establish an environmental standard intended to mitigate 
health or safety risks and is not economically significant under 
Executive Order 12866.

H. National Technology Transfer and Advancement Act

    In addition, the National Technology Transfer and Advancement Act 
of 1997 does not apply because today's proposed action does not require 
the public to perform activities conducive to the use of voluntary 
consensus standards under that Act. The EPA's compliance with these 
statutes and Executive Orders for the underlying rule, the final 
NOX SIP Call, is discussed in more detail in 63 FR 57477-81 
(October 27, 1998).

I. Paperwork Reduction Act

    The EPA stated in the final NOX SIP Call that an 
information collection request was pending. Today's action imposes no 
additional burdens beyond those imposed by the final NOX SIP 
Call. Any issues relevant to satisfaction of the requirements of the 
Paperwork Reduction Act will be resolved during review and approval of 
the pending information collection request for the NOX SIP 
Call.

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Transportation, Volatile 
organic compounds.

    Dated: February 18, 2000.
Carol M. Browner,
Administrator.
    For the reasons set forth in the preamble, part 51 of chapter I of 
title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

    1. The authority citation for part 51 continues to read as follows:

    Authority: 42 U.S.C. 7410, 7414, 7421, 7470-7479, 7491, 7492, 
7601, and 7602.

Subpart G--Control Strategy

    2. Section 51.121 is amended by adding paragraph (q) to read as 
follows:


Sec. 51.121  Findings and requirements for submission of State 
implementation plan revisions relating to emissions of oxides of 
nitrogen.

* * * * *
    (q) Stay of Findings of Significant Contribution with respect to 
the 8-hour standards. Notwithstanding any other provisions of this 
subpart, the effectiveness of the provisions in paragraph (a)(2) of 
this section is stayed.

[FR Doc. 00-4519 Filed 2-29-00; 8:45 am]
BILLING CODE 6560-50-P