[Federal Register Volume 65, Number 134 (Wednesday, July 12, 2000)]
[Proposed Rules]
[Pages 42913-42919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17188]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RI041-6989b, FRL-6731-6]


Approval and Promulgation of Implementation Plans; Rhode Island; 
Nitrogen Oxides Budget and Allowance Trading Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In October 1999, the State of Rhode Island (RI) submitted a 
State Implementation Plan (SIP) to reduce air emissions of nitrogen 
oxides (NOX). The submittal responds to the EPA's regulation 
entitled, ``Finding of Significant Contribution and Rulemaking for 
Certain States in the Ozone Transport Assessment Group Region for 
Purposes of Reducing Regional Transport of Ozone,'' otherwise known as 
the ``NOX SIP Call.'' The submittal includes a narrative and 
a regulation that establish a statewide NOX budget and a 
NOX allowance trading program for large electricity 
generating and industrial sources beginning in 2003.
    The Environmental Protection Agency (EPA) is proposing approval of 
the RI's October 1999 SIP submittal including, RI's NOX 
control regulation, Regulation No. 41, ``Nitrogen Oxides Allowance 
Program,'' and the SIP narrative materials, ``NOX State 
Implementation Plan (SIP) Call Narrative,'' that includes a statewide 
emissions budget for the ozone season, i.e., May 1 to October 1, of 
2007 and each year after. EPA is proposing to approve Rhode Island's 
submittal for its strengthening effect pursuant to section 110 of the 
Clean Air Act (CAA).

DATES: EPA must receive written comments on or before August 11, 2000.

ADDRESSES: Comments may be mailed to David Conroy, Unit Manager, Air 
Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. 
Environmental Protection Agency, Region I, One Congress Street, Suite 
1100, Boston, MA 02114-2023. Copies of the documents relevant to this 
action are available for public inspection during normal business 
hours, by appointment at the Office Ecosystem Protection, U.S. 
Environmental Protection Agency, Region I, One Congress Street, 11th 
floor, Boston, MA, 02114, and at the Division of Air and Hazardous 
Materials, Rhode Island Department of Environmental Management, 291 
Promenade Street, Providence, RI 02908-5767.

[[Page 42914]]


FOR FURTHER INFORMATION CONTACT: Steven A. Rapp, (617) 918-1048 or at 
[email protected].

SUPPLEMENTARY INFORMATION:

Overview

    On October 1, 1999, RI submitted a package of regulatory and 
narrative materials in order to comply with the NOX SIP Call 
and strengthen its ozone SIP. EPA proposes full approval of RI's 
submittal.
    The following table of contents describes the format for this 
SUPPLEMENTARY INFORMATION:

I. EPA's Action
    A. What action is EPA proposing today?
    B. Why is EPA proposing this action?
    C. What are the general NOX SIP Call requirements?
    D. What is EPA's NOX budget and allowance trading 
program?
    E. What is the Compliance Supplement Pool?
    F. What guidance did EPA use to evaluate Rhode Island's 
submittal?
II. Rhode Island's NOX Budget Program
    A. What is Rhode Island's NOX SIP Call submittal?
    B. When did Rhode Island propose and adopt the program?
    C. When did Rhode Island submit the SIP revision to EPA and when 
did EPA find it technically and administratively complete?
    D. What is Rhode Island's NOX Budget Trading Program?
    E. How will Rhode Island and EPA enforce the program?
    F. How does Rhode Island's program protect the environment?
    G. What is the result of EPA's evaluation of Rhode Island's 
program?
    H. Why is EPA considering the NOX SIP Call submittals 
from CT, MA, and RI at the same time?
    I. What other significant items relate to Rhode Island's 
program?
    J. What issues are associated with the Rhode Island 
NOX SIP Call submittal?
III. Proposed Action
IV. Administrative Requirements

    In the following questions and answers, the term ``you'' refers to 
the reader of the notice and ``we'' refers to the EPA.

I. EPA's Action

A. What Action is EPA Proposing Today?

    EPA is proposing approval of RI's SIP submittal, including RI's 
NOX control regulation, Regulation No. 41, ``Nitrogen Oxides 
Allowance Trading Program,'' and the SIP narrative entitled, 
``NOX State Implementation Plan (SIP) Call Narrative.''
    RI submitted the adopted Regulation No. 41 and the SIP narrative 
with a request to revise the SIP on October 1, 1999. RI submitted the 
regulation and narrative in order to strengthen its one-hour ozone SIP 
and to comply with the NOX SIP Call in each ozone season, 
i.e., May 1 to October 1, beginning in 2003. EPA finds that RI's 
submittal is fully approvable as a SIP strengthening measure for Rhode 
Island's one-hour ground level ozone SIP and it meets the air quality 
objective of the NOX SIP Call requirements that EPA has 
published to date. EPA will take action in a separate future rulemaking 
on whether Rhode Island's submittal meets the applicable NOX 
SIP Call requirements themselves.

B. Why is EPA Proposing this Action?

    EPA is proposing this action in order to:
     Fulfill RI's and EPA's requirements under the Clean Air 
Act (the Act);
     Make RI's control regulation federally-enforceable and 
available for credit in the SIP;
     Make RI's SIP narrative, including the ozone season 
NOX budget, federally enforceable as part of the RI SIP; and
     Give you the opportunity to submit written comments on 
EPA's proposed actions, as discussed in the DATES and ADDRESSES 
sections.

C. What Are the General NOX SIP Call Requirements?

    On October 27, 1998, EPA published a final rule entitled, ``Finding 
of Significant Contribution and Rulemaking for Certain States in the 
Ozone Transport Assessment Group Region for Purposes of Reducing 
Regional Transport of Ozone,'' otherwise known as the ``NOX 
SIP Call.'' See 63 FR 57356. The NOX SIP Call requires 22 
States and the District of Columbia \1\ to meet statewide 
NOX emission budgets during the five month period between 
May 1 and October 1 in order to reduce the amount of ground level ozone 
that is transported across the eastern United States. The 
NOX SIP Call set out a schedule that required the affected 
states to adopt regulations by September 30, 1999 \2\, and implement 
control strategies by May 1, 2003.
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    \1\ Alabama, Connecticut, District of Columbia, Delaware, 
Georgia, Illinois, Indiana, Kentucky, Massachusetts, Maryland, 
Michigan, Missouri, North Carolina, New Jersey, New York, Ohio, 
Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, 
Wisconsin, and West Virginia.
    \2\ 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).
    On October 1, 1999, Rhode Island voluntarily submitted this 
revision to EPA for approval notwithstanding the court's stay of the 
SIP submission deadline. On March 3, 2000, the D.C. Circuit ruled on 
Michigan v. EPA, affirming many aspects of the SIP call and 
remanding certain other portions to the Agency. The court's ruling 
does not affect this action because it is being proposed as a SIP-
strengthening measure regardless of the status of the case.
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    The NOX SIP Call allowed states the flexibility to 
decide which source categories to regulate in order to meet the 
statewide budgets. But, the SIP Call notice suggested that imposing 
statewide NOX emissions caps on large fossil-fuel fired 
industrial boilers and electricity generating units would provide a 
highly cost effective means for States to meet their NOX 
budgets. In fact, the state-specific budgets were set assuming an 
emission rate of 0.15 pounds NOX per million British thermal 
units (lb. NOX/mmBtu) at EGUs, multiplied by the projected 
heat input (mmBtu) from burning the quantity of fuel needed to meet the 
2007 forecast for electricity demand. See 63 FR 57407. The calculation 
of the 2007 EGU emissions assumed that an emissions trading program 
would be part of an EGU control program. The NOX SIP Call 
state budgets also assumed on average a 30% NOX reduction 
from cement kilns, a 60% reduction from industrial boilers and 
combustion turbines, and a 90% reduction from internal combustion 
engines. The non-EGU control assumptions were applied at units where 
the heat input capacities were greater than 250 mmBtu per hour, or in 
cases where heat input data were not available or appropriate, at units 
with actual emissions greater than one ton per day.
    To assist the states in their efforts to meet the SIP Call, the 
NOX SIP Call final rulemaking notice included a model 
NOX allowance trading regulation, called ``NOX 
Budget Trading Program for State Implementation Plans,'' (40 CFR Part 
96), that could be used by states to develop their regulations. The 
NOX SIP Call notice explained that if states developed an 
allowance trading regulation consistent with the EPA model rule, they 
could participate in a regional allowance trading program that would be 
administered by the EPA. See 63 FR 57458-57459.

D. What is EPA's NOX Budget and Allowance Trading Program?

    EPA's model NOX budget and allowance trading rule for 
SIPs, 40 CFR Part 96, sets forth a NOX emissions trading 
program for large electric generating units (EGUs) and non-electric 
generating units (non-EGUs). A state can voluntarily choose to adopt 
EPA's model rule in order to allow sources

[[Page 42915]]

within its borders to participate in regional allowance trading. The 
October 27, 1998 Federal Register notice contains a full description of 
the EPA's model NOX budget trading program. See 63 FR 57514-
57538 and 40 CFR Part 96.
    In general, air emissions trading uses market forces to reduce the 
overall cost of compliance for pollution sources, such as power plants, 
while maintaining emission reductions and environmental benefits. One 
type of market-based program is an emissions budget and allowance 
trading program, commonly referred to as a ``cap and trade'' program.
    In an emissions budget and allowance trading program, the state or 
EPA sets a regulatory limit, or emissions budget, in mass emissions 
from a specific group of sources. The budget limits the total number of 
allocated allowances during a particular control period. When the 
budget is set at a level lower than the current emissions, the effect 
is to reduce the total amount of emissions during the control period. 
After setting the budget, the state or EPA then assigns, or allocates, 
allowances to the participating entities up to the level of the budget. 
Each allowance authorizes the emission of a quantity of pollutant, 
e.g., one ton of airborne NOX.
    At the end of the control period, each source must demonstrate that 
its actual emissions during the control period were less than or equal 
to the number of available allowances it holds. Sources that reduce 
their emissions below their allocated allowance level may sell their 
extra allowances. Sources that emit more than the amount of their 
allocated allowance level may buy allowances from the sources with 
extra reductions. In this way, the budget is met in the most cost-
effective manner. An example of a budget and allowance trading program 
is EPA's Acid Rain Program for reducing sulfur dioxide emissions.

E. What is the Compliance Supplement Pool?

    To provide additional flexibility for complying with emission 
control requirements associated with the NOX SIP Call, the 
final NOX SIP Call provided each affected state with a 
``compliance supplement pool.'' The compliance supplement pool is a 
quantity of NOX allowances that may be used to cover excess 
emissions from sources that are unable to meet control requirements 
during the 2003 and 2004 ozone seasons. Allowances from the compliance 
supplement pool will not be valid for compliance past the 2004 ozone 
season. Despite disagreeing with commenters' concerns, EPA included 
these voluntary provisions in the NOX SIP Call to address 
commenters' concerns about the possible adverse effect that the control 
requirements might have on the reliability of the electricity supply or 
on other industries required to install controls as the result of a 
state's response to the SIP Call.
    A state may issue some or all of the compliance supplement pool via 
two mechanisms. First, a state may issue some or all of the pool to 
sources with credits from implementing NOX reductions beyond 
all applicable requirements after September 30, 1999 but before May 1, 
2003 (i.e., early reductions). In this way, sources that cannot install 
controls prior to May 1, 2003, can purchase other sources' early 
reduction credits in order to comply. Second, a state may issue some or 
all of the pool to sources that demonstrate a need for an extension of 
the May 1, 2003 compliance deadline due to undue risk to the 
electricity or other industrial sectors and where early reductions are 
not available. See 40 CFR 51.121(e)(3).

F. What Guidance Did EPA Use to Evaluate Rhode Island's Submittal?

    EPA evaluated RI's NOX SIP Call submittal using EPA's 
``NOX SIP Call Checklist,'' (the checklist), issued on April 
9, 1999. The checklist reflects and follows the requirements of the 
NOX SIP Call set forth in 40 CFR 51.121 and 51.122. The 
checklist outlines the criteria that the EPA Regional Office used to 
determine the completeness and approvability of RI's submittal.
    As noted in the checklist, the key elements of an approvable 
submittal under the NOX SIP Call are: a budget 
demonstration; enforceable measures for control; legal authority to 
implement and enforce the control measures; compliance dates and 
schedules; monitoring, recordkeeping, and emissions reporting; as well 
as elements that apply to states that choose to adopt an emissions 
trading rule in response to the NOX SIP Call. The checklist 
is available to the public on EPA's website at: http://www.epa.gov/ttn/otag/sip/related.html.
    As described above, the final NOX SIP Call rule included 
a model NOX budget trading program regulation. See 40 CFR 
Part 96. EPA used the model rule to evaluate Regulation No. 41. 
Additionally, EPA used the October 1998 final NOX SIP Call 
rulemaking notice, as well as the subsequent technical amendments to 
the NOX SIP Call, published in May 1999 (64 FR 26298) and 
March 2000 (65 FR 11222), to evaluate the approvability of RI's 
submittal. EPA also used Sec. 110 of the CAA, Implementation Plans, to 
evaluate the approvability of RI's submittal as a revision to the SIP.

II. Rhode Island's NOX Budget Program

A. What is Rhode Island's NOX SIP Call Submittal?

    Rhode Island's October 1, 1999, SIP submittal included the 
following:
     Adopted control regulations which require emission 
reductions beginning in 2003, i.e., Regulation No. 41;
     A description of how the state intends to use the 
compliance supplement pool, i.e., as part of the control regulation;
     A baseline inventory of NOX mass emissions from 
EGUs, non-EGUs, area, highway and non-road mobile sources in the year 
2007 as published in the May 14, 1999, technical amendments to the 
NOX SIP Call, i.e., as part of the SIP narrative;
     A 2007 projected inventory (budget) reflecting 
NOX reductions achieved by the state control measures 
contained in the submittal, i.e., as part of the SIP narrative; and
     A commitment to meet the annual, triennial, and 2007 
reporting requirements, i.e., as part of the SIP narrative.
    As described above, in order to reduce NOX emissions 
statewide from 2003 and beyond, RI adopted Regulation No. 41. The 
regulation applies to all EGUs with nameplate electricity generating 
capacities greater than 15 megaWatts that sell any amount of 
electricity as well as any non-EGU units that have a heat input 
capacity equal to or greater than 250 mmBtu per hour. Regarding other 
non-EGUs, RI has no cement kilns or internal combustion (IC) engines 
with emissions large enough to exceed the applicability threshold for 
assumed control requirements, i.e., one ton per day. So, RI's SIP 
submittal does not assume any additional reductions from those sources. 
Furthermore, you should note that RI is not relying on any reductions 
beyond anticipated federal measures in the mobile and area sectors.
    Below is a table of the 2007 baseline and budget emission levels 
that Rhode Island has submitted with as part of its SIP narrative.

[[Page 42916]]



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                                          2007 baseline NOX         2007 NOX budget
           Source category                emissions  (tons/        emissions  (tons/       Projected deductions
                                               season)                  season)               (tons/season)
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EGUs.................................                    1,082                      985                       97
Non-EGU Point........................                    2,031                    2,031                        0
Area Sources.........................                      448                      448                        0
Non-Road Mobile......................                    2,455                    2,455                        0
Highway Mobile.......................                    3,879                    3,879                        0
                                      --------------------------------------------------------------------------
    RI Total.........................                    9,895                    9,798                       97
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B. When Did Rhode Island Propose and Adopt the Program?

    On July 19, 1999, Rhode Island proposed a draft of Regulation No. 
41 and the SIP narrative. The release of the proposal began a 30 day 
public comment period. On August 17, 1998, EPA provided written 
comments to the public record. On August 20, 1999, a public hearing was 
held on Regulation No. 41 and the SIP narrative. On October 1, 1999, 
the final Regulation No. 41 was filed with the Secretary of State. The 
regulation became effective on that date.

C. When Did Rhode Island Submit the SIPr Revision to EPA and When did 
EPA Find the Submittal Technically and Administratively Complete?

    On October 1, 1999, RI DEM submitted Regulation No. 41 and the SIP 
narrative to EPA with a request to revise the RI SIP. On October 26, 
1999, EPA sent a letter to RI deeming the SIP submittal technically and 
administratively complete.

D. What Is Rhode Island's NOX Budget Trading Program?

    In response to the NOX SIP Call, RI adopted Regulation 
No. 41, ``Nitrogen Oxides Allowance Program.'' With Regulation No. 41, 
RI is establishing a NOX cap and allowance trading program 
for the ozone seasons of 2003 and beyond. RI developed the regulation 
in order to reduce NOX emissions and allow its sources to 
participate in the interstate NOX allowance trading program 
described in Sec. 51.121(b)(2).
    Under Regulation No. 41, RI allocates NOX allowances to 
its EGUs. Each NOX allowance permits a source to emit one 
ton of NOX during the seasonal control period. 
NOX allowances may be bought or sold. Unused NOX 
allowances may also be banked for future use, with certain limitations. 
For each ton of NOX emitted in a control period, EPA will 
remove one allowance from the source's NOX Allowance 
Tracking System (NATS) account. Once the allowance has been retired in 
this way, no one can use the allowance again.
    Source owners will monitor their NOX emissions by using 
systems that meet the requirements of 40 CFR Part 75, subpart H, and 
report resulting data to EPA electronically. Each budget source 
complies with the program by demonstrating at the end of each control 
period that actual emissions do not exceed the amount of allowances 
held for that period. However, regardless of the number of allowances a 
source holds, it cannot emit at levels that would violate other federal 
or state limits, for example, reasonably available control technology 
(RACT), new source performance standards, or Title IV (the federal Acid 
Rain program).
    Generally, Regulation No. 41 differs from EPA's model 
NOX budget trading rule in three ways. First, Regulation No. 
41 is applicable to smaller electric generating sources than the model 
rule. Second, Regulation No. 41 does not allow early reduction credits 
and does not allocate any allowances from the compliance supplement 
pool. Finally, Regulation No. 41 describes a different methodology for 
allocating allowances from that set forth in the model rule but still 
ensures that the total allowance allocation does not exceed the state 
program budget. These differences make the regulation more stringent 
than 40 CFR Part 96 would be and are allowed under Sec. 51.121(p). 
Therefore, Regulation No. 41 can be considered substantively identical 
to 40 CFR Part 96.
    The NOX SIP Call allotted RI with a compliance 
supplement pool. However, Regulation No. 41 does not provide for the 
distribution of early reductions. All of the sources affected are well 
controlled, gas-fired EGUs, with emission rates below the assumed 0.15 
lb. NOX/mmBtu assumed in the development of the state 
budgets. This means that no EGU sources in RI will have to reduce their 
emissions from current permitted levels in order to comply with the 
projected 2007 budget. Therefore, RI decided not to include provisions 
for distributing allowances from the compliance supplement pool.
    For additional information regarding RI's NOX SIP Call 
submittal, the reader should refer to the document entitled, 
``Technical Support Document for Rhode Island's NOX SIP Call 
Submittal,'' dated May 5, 2000. Copies of the technical support 
document (TSD) can be obtained at either of the addresses listed in the 
ADDRESSES section of this notice.

E. How Will Rhode Island and EPA Enforce the Program?

    Once approved into RI's SIP, both RI and EPA will be able to 
enforce the requirements of the NOX budget and allowance 
trading program in Regulation No. 41. All of the sources subject to the 
NOX allowance trading program will have federally-
enforceable operating permits that contain source specific 
requirements, such as emissions monitoring or pollution control 
equipment requirements. RI and EPA will be able to enforce the source 
specific requirements of those permits, as well as the requirements of 
Regulation No. 41.
    Additionally, in order to determine compliance with the emission 
requirements of the program, at the end of each ozone season, RI and 
EPA will compare sources' allowance and emission accounts in the 
NOX Allowance Tracking System (NATS). To be in compliance, 
sources must hold a number of available allowances that meets or 
exceeds the number of tons of NOX emitted by that source and 
recorded in the Emissions Tracking System (ETS) for a particular ozone 
season. For sources with excess emissions, penalties include EPA 
deducting three times the unit's excess emissions from the unit's 
allocation for the next control period.

F. How Does Rhode Island's Program Protect the Environment?

    Based on air quality modeling assessments performed for the 
NOX SIP Call, EPA believes that the NOX 
reductions in RI and other states subject to the SIP Call will reduce 
the transport of ozone starting in 2003.
    Decreases of NOX emissions will also help improve the 
environment in several important ways. Decreases in NOX 
emissions will decrease acid deposition, nitrates in drinking water,

[[Page 42917]]

excessive nitrogen loadings to aquatic and terrestrial ecosystems, and 
ambient concentrations of nitrogen dioxide, particulate matter and 
toxics. On a global scale, decreases in NOX emissions reduce 
greenhouse gases and stratospheric ozone depletion.

G. What is the Result of EPA's Evaluation of Rhode Island's SIP 
Submittal?

    EPA has evaluated RI's October 1, 1999, SIP submittal and finds it 
fully approvable. The submittal will strengthen RI's SIP for reducing 
ground level ozone by providing NOX reductions beginning in 
2003. EPA also finds that the submittal meets the air quality 
objectives of the NOX SIP Call. EPA finds the NOX 
control measures, Regulation No. 41, the SIP narrative that includes 
RI's 2007 NOX baseline and controlled budgets fully 
approvable. EPA finds that the submittal contained the information 
necessary to demonstrate that RI has the legal authority to implement 
and enforce the control measures, as well as a description of how the 
state intends to use the compliance supplement pool. Furthermore, EPA 
finds that the submittal demonstrates that the compliance dates and 
schedules, and the monitoring, record keeping and emission reporting 
requirements will be met.
    EPA finds that RI's control regulation and SIP narrative materials 
are consistent with EPA's guidance and meet the air quality objectives 
of the NOX SIP Call, including, 40 CFR Part 51, Sec. 51.121 
and Sec. 51.122 as well as the general SIP submittal requirements of 
the Act, Sec. 110, 42 U.S.C. 7401 et seq. Regulation No. 41 does 
contain differences from the model rule but such differences are 
allowed under Sec. 51.121(p). Therefore, EPA considers Regulation No. 
41 to be substantively identical to 40 CFR Part 96.
    Regarding RI's SIP narrative, EPA finds that the submittal contains 
the required elements, including: the baseline inventory of 
NOX mass emissions from EGUs, non-EGUs, area, highway and 
non-road mobile sources in the year 2007; the 2007 projected inventory 
reflecting NOX reductions achieved by the state control 
measures contained in the submittal; and the commitment to meet the 
annual, triennial, and 2007 state reporting requirements. EPA further 
finds that RI's 2007 projected inventory, reflecting the control 
strategies, is approvable, reflecting the air quality objectives of the 
NOX SIP Call.
    In order to approve RI's 2007 projected inventory as meeting the 
air quality objectives of the NOX SIP Call, however, it is 
necessary to consider the adopted 2007 emission budgets and adopted 
NOX reducing measures in Connecticut (CT) and Massachusetts 
(MA) as well. Comparing the most recent technical amendments to the 
NOX SIP Call budgets to the adopted and submitted 
NOX SIP Call related measures from the three states, you can 
see that the adopted measures in CT, MA, and RI will reduce more 
NOX from the EGU and non-EGU sectors than the NOX 
SIP Call notices have required.

H. Why is EPA Considering the NOX SIP Call Submittals from 
CT, MA, and RI at the Same Time?

    In February 1999, CT, MA, RI, and EPA signed a memorandum of 
understanding (i.e., ``the Three State MOU'') agreeing to redistribute 
the EGU portions of the three states' budgets, as well as the 
compliance supplement pool allocations, amongst themselves. Under the 
Three State MOU, the combined 2007 controlled emission level and 
compliance supplement pool did not change for the three states, only 
the individual state EGU allocations and supplement pools were 
redistributed to provide CT with additional flexibility.
    On September 15, 1999, EPA published a Notice of Proposed 
Rulemaking (NPR) to approve the redistribution of the three states' 
allocations as described in the MOU and modified by the EPA's May 1999 
NOX SIP Call technical corrections.\3\ See 64 FR 50036. As 
described in the NPR, the sum of the 2007 budgets and supplement pool 
allocations for the three states after redistribution is identical to 
the sum of the three budgets and supplement pool allocations for the 
states as published in the May 1999 technical corrections Federal 
Register notice. In other words, the total NOX reduction 
expected from the three states due to the SIP Call would be the same 
before and after the redistribution of budgets under the Three State 
MOU. In fact, both the May 1999 technical amendments and the September 
1999 NPR required a NOX reduction of 5,491 tons by the three 
states each ozone season from 2007 onward and provided a combined 
allocation of 961 tons from the compliance supplement pool.
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    \3\ You should note that EPA took comments on the Three State 
MOU NPR and intends to address those comments in a future 
rulemaking. Therefore, we are not seeking comments on the specifics 
of the Three State MOU NPR at this time.
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    On March 2, 2000, EPA published additional technical amendments to 
the NOX SIP Call in the Federal Register (65 FR 11222). As 
can be seen in the tables below, the March 2, 2000 technical 
corrections primarily changed the highway mobile and non-EGU 2007 
baselines and budgets for CT, MA, and RI. However, these changes 
largely cancel each other out, e.g., the 2007 highway sub-inventory 
baselines and budgets increased by the same amounts. The March 2000 
technical corrections, however, did not effect the amount of reduction 
expected from the EGU sector. The tables below compare the 2007 
baselines and budgets for each sub-inventory sector for CT, MA, and RI 
as published in the May 1999 and March 2000 technical amendment Federal 
Register notices.

----------------------------------------------------------------------------------------------------------------
                                        5/99         3/00      Change in                              Change in
                CT                    baseline     baseline     baseline   5/99 budget  3/00 budget     budget
----------------------------------------------------------------------------------------------------------------
EGU...............................        5,636        5,636            0        2,652        2,652            0
Non-EGU...........................        5,124        5,397          273        4,970        5,216          246
Area..............................        4,821        4,821            0        4,821        4,821            0
Nonroad...........................       10,736       10,736            0       10,736       10,736            0
Highway...........................       19,902       19,424         -478       19,902       19,424         -478
                                   -----------------------------------------------------------------------------
    Total.........................       46,220       46,015         -205       43,081       42,849         -232
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                        5/99         3/00      Change in                              Change in
                MA                    baseline     baseline     baseline   5/99 budget  3/00 budget     budget
----------------------------------------------------------------------------------------------------------------
EGU...............................       16,479       16,479            0       15,145       15,146            1

[[Page 42918]]

 
Non-EGU...........................       11,229       11,210          -19       10,296       10,298            2
Area..............................       12,048       11,048            0       11,048       11,048            0
Nonroad...........................       20,166       20,166            0       20,166       20,166            0
Highway...........................       28,641       28,190         -451       28,641       28,190         -451
                                   -----------------------------------------------------------------------------
    Total.........................       87,563       87,092         -471       85,296       84,848         -448
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                        5/99         3/00      Change in                              Change in
                RI                    baseline     baseline     baseline   5/99 budget  3/00 budget     budget
----------------------------------------------------------------------------------------------------------------
EGU...............................        1,082        1,082            0          997          997            0
Non-EGU...........................        2,031        1,635         -396        2,031        1,635         -396
Area..............................          448          448            0          448          448            0
Nonroad...........................        2,455        2,455            0        2,455        2,455            0
Highway...........................        3,879        3,843          -36        3,879        3,843          -36
                                   -----------------------------------------------------------------------------
    Total.........................        9,895        9,463         -432        9,810        9,378         -432
----------------------------------------------------------------------------------------------------------------

    The March 2000 Federal Register listed 2007 ozone season baseline 
emissions from CT, MA, and RI as 46,015 tons, 87,092 tons, and 9,463 
tons, respectively. The March 2000 Federal Register listed the 2007 
ozone season budgets for CT, MA, and RI as 42,849 tons, 84,848 tons, 
and 9,378 tons, and provided the three states with compliance 
supplement pools of 569 tons, 404 tons, and 15 tons, respectively, or a 
total of 988 tons. In total, the March 2000 notice required the three 
states to reduce their NOX emissions by 5,495 tons per ozone 
season beginning in 2007.
    In the Fall of 1999, CT, MA, and RI all adopted and submitted SIP 
packages in response to the NOX SIP Call. All three states 
adopted and submitted NOX control regulations that rely on 
reductions from the EGU and large non-EGU units to achieve their 
emission budgets. The 2007 baseline ozone season emissions adopted by 
the states were 46,219 tons, 87,563 tons, and 9,895 tons, respectively, 
or a three state total of 143,677 tons per ozone season. The SIP 
packages adopted and submitted by CT, MA, and RI, included 2007 
projected NOX inventories of 44,993 tons, 83,345 tons, and 
9,798 tons, respectively, or a three state total of 138,136 tons per 
ozone season. Therefore, the total NOX reduction expected 
from the adopted and submitted SIP packages from CT, MA, and RI is 
5,541 tons per ozone season.
    As discussed above, EPA signed the Three State MOU between CT, MA, 
and RI. We endorse the concept that states can voluntarily join 
together and redistribute their NOX SIP Call budgets and 
compliance supplement pool allocations, provided that the total after 
the redistribution is less than or equal to before redistribution, and 
provided that the states have formalized such an agreement in an MOU or 
similar device to which EPA also agrees. EPA supports this concept 
because such a redistribution is no different than the effects of 
trading. For a detailed discussion of why EPA supports the concept that 
states can collectively redistribute their NOX SIP Call 
budgets, see the proposed Three State MOU notice, 64 FR 49989, 
September 15, 1999. Given the fact that together the three states' 
regulations achieve at least the same NOX reduction and 
allocate fewer than required compliance supplement pool allocations, 
EPA finds that the NOX SIP Call SIP submittals from the 
three states collectively meet the air quality objectives of the 
NOX SIP Call as published to date. In separate Federal 
Register notices today, EPA is also proposing approval of CT's and MA's 
NOX SIP Call submittals.
    You can find the NOX SIP Call 2007 baselines, budgets, 
and compliance supplement pool allocations from the March 2000 
technical amendments and the state adopted SIPs summarized in the table 
below.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    SIP call      State                                 SIP call
                                                      2007       adopted      SIP call      State      projected      State      Compliance     State
                                                    baseline       2007     2007 budget    adopted     reduction    projected    supplement    adopted
                      State                        (tons NOX     baseline   as of 03/00  2007 budget   (tons NOX    reduction    pool state   compliance
                                                   per ozone    (tons NOX     (tons NOX    (tons NOX   per ozone    (tons NOX   allocations   supplement
                                                   season) as   per ozone    per ozone    per ozone    season) as   per ozone   as of 03/00      pool
                                                    of 03/00     season)      season)      season)      of 03/00     season)
--------------------------------------------------------------------------------------------------------------------------------------------------------
CT..............................................       46,015       46,219       42,849       44,993        3,166        1,226          569          473
MA..............................................       87,092       87,563       84,848       83,345        2,244        4,218          404          473
RI..............................................        9,463        9,895        9,378        9,798           85           97           15           15
                                                 -------------------------------------------------------------------------------------------------------
    Total.......................................      142,570      143,677      137,075      138,136        5,495        5,541          988          961
--------------------------------------------------------------------------------------------------------------------------------------------------------

    For additional information regarding EPA's evaluation of RI's 
NOX SIP Call submittal, the reader should refer to the TSD 
available at either of the addresses listed in the ADDRESSES section of 
this notice.

I. What Other Significant Items Relate to Rhode Island's Program?

    Regulation No. 41 is also related to the Ozone Transport 
Commission's (OTC's) ozone season NOX budget program. On 
September 27, 1994, OTC adopted a Memorandum of Understanding (MOU) 
that committed the signatory states, including RI, to the development 
and proposal of a region-wide reduction in NOX emissions. 
The OTC agreement committed the states to one phase of NOX 
reductions by 1999

[[Page 42919]]

and another phase of reductions by 2003.
    As a signatory state of the MOU, RI adopted its NOX 
budget and allowance trading regulation, Regulation No. 38, on June 10, 
1997. Regulation No. 38 contained a NOX emissions budget and 
allowance trading system for the ozone seasons of 1999 through 2002, 
the period known as ``OTC Phase II.'' RI's phase II budget is 626 tons 
per ozone season. EPA approved RI's phase II OTC NOX budget 
regulation on June 2, 1999. See 64 FR 29567. Regulation No. 41 contains 
a new NOX emissions budget and allowance trading program for 
the ozone seasons of 2003 and thereafter, in order to control 
NOX emissions during the period described in the OTC program 
as ``OTC phase III.''

J. What Issues Are Associated With Rhode Island's NOX SIP 
Call Submittal?

    On March 3, 2000, the D.C. Circuit ruled on Michigan v. EPA, 
affirming many aspects of the NOX SIP Call and remanding 
certain other portions to the Agency (e.g., the definition of an EGU 
and the control assumptions for internal combustion engines). Due to 
the Court's remanding of the EGU definition and IC engine control 
assumptions, EPA must now recalculate the final 2007 baseline, 2007 
budget, and compliance supplement allocation for each state subject to 
the NOX SIP Call, including RI. Those recalculated budgets 
are expected to be published in the next few months. However, this 
means that RI may be required to revisit its NOX SIP Call 
program due to potential forthcoming changes to the NOX SIP 
Call requirements. At such time as EPA publishes new emission budget 
requirements, RI and other NOX SIP Call subject states will 
be informed as to what, if any, changes are needed.
    Additionally, as described above, the March 2, 2000 technical 
corrections changed the 2007 baselines and budgets for the highway and 
non-EGU sub-inventories in CT, MA, and RI. Therefore, when those states 
make the changes needed due to the remanded portions of the 
NOX SIP Call, they will need to adopt changes to the highway 
and non-EGU 2007 baselines and budgets as well.

III. Proposed Action

    EPA has reviewed RI's October 1, 1999, SIP submittal using the 
NOX SIP Call rulemaking notices and checklist. EPA has 
reviewed RI's control measures and projected reductions and finds them 
approvable. Therefore, EPA is proposing to approve Regulation No. 41 
and RI's NOX SIP Call narrative into the RI SIP at this 
time.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the ADDRESSES section of 
this action.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any State implementation plan. Each request for revision to 
the State implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Regional Administrator certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Because this rule approves pre-existing requirements under state law 
and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same 
reason, this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule 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 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: June 21, 2000.
Mindy S. Lubber,
Regional Administrator, EPA-New England.
[FR Doc. 00-17188 Filed 7-11-00; 8:45 am]
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