[Federal Register Volume 69, Number 107 (Thursday, June 3, 2004)]
[Rules and Regulations]
[Pages 31498-31505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12553]
[[Page 31497]]
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Part III
Environmental Protection Agency
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40 CFR Parts 52, 70, and 71
Rulemaking on Section 126 Petitions From New York and Connecticut
Regarding Sources in Michigan; Revision of Definition of Applicable
Requirement for Title V Operating Permit Programs; Final Rule
Federal Register / Vol. 69, No. 107 / Thursday, June 3, 2004 / Rules
and Regulations
[[Page 31498]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52, 70, and 71
[FRL-7669-6]
RIN 2060-AJ36
Rulemaking on Section 126 Petitions From New York and Connecticut
Regarding Sources in Michigan; Revision of Definition of Applicable
Requirement for Title V Operating Permit Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In today's action, EPA is revising one element of a final rule
published on January 18, 2000, regarding petitions filed by four
Northeastern States under section 126 of the Clean Air Act (CAA). The
petitions seek to mitigate interstate transport of nitrogen oxides
(NOX), one of the main precursors of ground-level ozone
pollution. The final rule partially approved the four petitions under
the 1-hour ozone national ambient air quality standard, thereby
requiring certain types of sources located in 12 States and the
District of Columbia to reduce their NOX emissions.
Subsequently, the U.S. Court of Appeals for the District of
Columbia Circuit issued a decision on a related EPA regulatory action,
the NOX State implementation plan call (NOX SIP
Call), that has relevance to the Section 126 Rule. Although the court
decision did not directly address the State of Michigan, the reasoning
of the court regarding the significance of NOX emissions
from sources in two other States called into question the inclusion of
a portion of Michigan in the area covered by the NOX SIP
Call. In response, the EPA is removing that portion of Michigan, known
as the ``coarse grid'' portion, from the NOX SIP Call. The
Section 126 Rule is based on many of the same analyses and information
used for the NOX SIP Call and covers part of Michigan. Thus,
in light of EPA's response to the court ruling on the NOX
SIP Call, EPA is also withdrawing its section 126 findings and denying
the petitions under the 1-hour ozone standard with respect to sources
located in the coarse grid portion of Michigan. The EPA has not
identified any existing section 126 sources located in the affected
portion of the coarse grid.
The EPA is also revising the definition of the ``applicable
requirement'' for title V operating permit programs by providing
expressly that any standard or other requirement under section 126 is
an applicable requirement and must be included in operating permits
issued under title V of the CAA.
DATES: This final rule is effective July 6, 2004.
ADDRESSES: Documents relevant to this action are available for public
inspection at the EPA Docket Center, Attention: Docket OAR-2001-2009,
located at 1301 Constitution Avenue, NW., Room B102, Washington, DC,
between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number is (202) 566-1742. A reasonable fee may
be charged for copying.
FOR FURTHER INFORMATION CONTACT: Questions concerning today's action
should be addressed to Carla Oldham, EPA Office of Air Quality Planning
and Standards, Air Quality Strategies and Standards Division, C539-02,
Research Triangle Park, NC, 27711, telephone (919) 541-3347, e-mail at
[email protected].
SUPPLEMENTARY INFORMATION:
How Can I Get Copies of This Document and Other Related Information?
Docket. The EPA has established an official public docket for this
action under Docket ID No. OAR-2001-2009. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the EPA Air Docket in the EPA Docket Center, (EPA/DC) EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
EPA Air Docket is (202) 566-1742. A reasonable fee may be charged for
copying documents.
The EPA has issued a separate rule on NOX transport
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,'' hereafter referred
to as the NOX SIP Call. The rulemaking docket for that rule
(Docket ID No. OAR-2001-0008) contains information and analyses that
EPA has relied upon in the section 126 rulemaking, and hence documents
in that docket are part of the rulemaking record for this rule.
Electronic Access. An electronic version of the public docket is
available through EPA's electronic public docket and comment system,
EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to
view public comments, access the index listing of the contents of the
official public docket, and to access those documents in the public
docket that are available electronically. Although not all docket
materials may be available electronically, you may still access any of
the publicly available docket materials through the docket facility
identified above. Once in the system, select ``search,'' then key in
the appropriate docket identification number.
You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
http://www.epa.gov/fedrgstr/. In addition, the Federal Register
rulemaking actions and certain associated documents are located at
http://www.epa.gov/ttn/naaqs/ozone/rto/126/index.html.
Outline
I. Background
A. What Action Did EPA Take in the January 18, 2000 Section 126
Rule?
B. What Was the Geographic Scope of the 1-Hour Findings for
Michigan Sources?
C. What Was the March 3, 2000 Court Decision on the
NOX SIP Call?
1. What is the Relevance of the NOX SIP Call Court
Decision to the Section 126 Rule?
2. What is the NOX SIP Call Court Decision Regarding
Coarse Grid Sources?
3. What is EPA's Response to the NOX SIP Call Court
Decision Regarding Coarse Grid Sources?
II. Final Rule Regarding Michigan Sources
A. What is Today's Rule Regarding Michigan Coarse Grid Sources
Under the 1-Hour Standard?
B. Does Today's Rule Affect the Section 126 Requirements for
Michigan Fine Grid Sources or Sources Located in Other States?
III. What is Today's Revision to the Definition of ``Applicable
Requirement'' for Title V Operating Permit Programs?
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
[[Page 31499]]
G. Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
K. Judicial Review
I. Background
A. What Action Did EPA Take in the January 18, 2000 Section 126 Rule?
In a final rule published on January 18, 2000 (65 FR 2674) (January
2000 Rule), EPA took action on petitions filed by four Northeastern
States under section 126 of the CAA. Each petition requested that EPA
make a finding that certain stationary sources located in other
specified States are emitting NOX in amounts that
significantly contribute to ozone nonattainment and maintenance
problems in the petitioning State. The petitions targeted electric
utilities, industrial boilers and turbines, and certain other
stationary sources of NOX. The four States that submitted
petitions are Connecticut, Massachusetts, New York, and Pennsylvania.
In the January 2000 Rule, EPA found that sources in 12 upwind
States and the District of Columbia were significantly contributing to
ozone nonattainment problems in the petitioning States under the 1-hour
ozone standard. The EPA promulgated the Federal NOX Budget
Trading Program as the control remedy. Only a portion of Michigan was
affected by the rule.
To determine whether emissions from States named in the petitions
were significantly contributing to 1-hour nonattainment problems in the
petitioning States, EPA relied on the technical analyses from the final
NOX SIP Call rulemaking (63 FR 57356; October 27, 1998). The
technical analyses used to support the Section 126 Rule are discussed
in detail in previous section 126 rulemaking actions (63 FR 56292;
October 21, 1998 and 64 FR 28250; May 25, 1999) and in the final
NOX SIP Call.
Section 126 of the CAA authorizes a downwind State to petition EPA
for a finding that any new (or modified) or existing major stationary
source or group of stationary sources upwind of the State emits or
would emit in violation of the prohibition of section 110(a)(2)(D)(i)
because their emissions contribute significantly to nonattainment, or
interfere with maintenance, of a national ambient air quality standard
in the State. Sections 110(a)(2)(D)(i), 126(b)-(c). If EPA makes the
requested finding, the sources must shut down within 3 months from the
finding unless EPA directly regulates the sources by establishing
emissions limitations and a compliance schedule, extending no later
than 3 years from the date of the finding, to eliminate the prohibited
interstate transport of pollutants as expeditiously as possible. See
sections 110(a)(2)(D)(i) and 126(c).
B. What Was the Geographic Scope of the 1-Hour Findings for Michigan
Sources?
In the January 2000 Section 126 Rule, the 1-hour findings for
sources in Michigan were linked to the petitions from Connecticut and
New York. Both States defined the geographic scope of their petitions
in terms of the Ozone Transport Assessment Group (OTAG) Subregions. The
OTAG was a group of 37 States in the Eastern half of the United States
that was active in the 1995-1997 timeframe. The OTAG assessed ozone
transport affecting member States and submitted recommendations to EPA
on control strategies to mitigate the ozone transport.\1\ These
Subregions were delineated by OTAG for use in some of the early air
quality modeling analyses to determine the spatial scale of transport.
The Subregional divisions were not used for the purpose of evaluating
various control strategies. (See 62 FR 60318; November 7, 1997.) Both
the New York and Connecticut petitions targeted sources located in OTAG
Subregion 2, among other areas. Part of Michigan is included in
Subregion 2 (see Figure 1 below).
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\1\ The OTAG recommendations are provided in appendix B of the
November 7, 1997 NOX SIP Call propoosal (62 FR 60376).
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BILLING CODE 6560-50-P
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[GRAPHIC] [TIFF OMITTED] TR03JN04.017
BILLING CODE 6560-50-C
As part of the January 2000 Rule, EPA made findings that large
electric generating units (EGUs) and large industrial boilers and
turbines (non-EGUs) located in the OTAG Subregion 2 portion of Michigan
are significantly contributing to both Connecticut and New York under
the 1-hour ozone standard. The Subregion 2 portion of Michigan covers
the area south of 45 degrees latitude and east of 86 degrees longitude.
The rest of Michigan was not covered by the section 126 findings
because the New York and Connecticut petitions did not target any other
areas.
C. What Was the March 3, 2000 Court Decision on the NOX SIP
Call?
1. What Is the Relevance of the NOX SIP Call Court Decision
to the Section 126 Rule?
On March 3, 2000, the United States Court of Appeals for the
District of Columbia Circuit Court issued its decision on the
NOX SIP Call, largely upholding the rule. Michigan v. EPA,
213 F.3d 663 (D.C. Cir., 2000).
However, the Court ruled against EPA on several points, one of
which is relevant to today's rulemaking. Specifically, the court
vacated the inclusion of Georgia and Missouri in the NOX SIP
Call in light of the OTAG's conclusions that emissions from coarse grid
portions of States did not merit controls. The court remanded this
issue concerning Georgia and Missouri to EPA for further consideration.
The Section 126 Rule is based on NOX SIP Call analyses and
also affects a coarse grid area, in this case, in Michigan. (See the
following section for an explanation of coarse grid versus fine grid
areas of States.) Therefore, EPA's response to the NOX SIP
Call court decision related to coarse grid sources is being taken into
consideration in the Section 126 Rule.
2. What Is the NOX SIP Call Court Decision Regarding Coarse
Grid Sources?
In the NOX SIP Call, Georgia and Missouri industry
litigants challenged EPA's decision to calculate NOX budgets
for these two States based on NOX emissions throughout the
entirety of each State. The litigants maintained that the record
supports including only eastern Missouri and northern Georgia as
contributing to downwind ozone problems.
The challenge from these litigants generally stems from the
recommendations of the OTAG. The OTAG recommended NOX
controls to reduce transport for areas within the ``fine grid'' of the
air quality modeling domain, but recommended that areas within the
``coarse grid'' not be subject to additional controls, other than those
required by the CAA.\2\
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\2\ The OTAG recommendations on Utility NOX Controls
approved by the Policy Group, June 3, 1997 (62 FR 60318, appendix B,
November 7, 1997).
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In its modeling, OTAG used grids drawn across most of the eastern
half of the United States. The ``fine grid'' has grid cells of
approximately 12 kilometers on each side (144 square kilometers). The
``coarse grid'' extends beyond the perimeter of the fine grid and has
cells with 36 kilometer resolution. As shown in Figure F-10, appendix F
of part 52.34, the fine grid includes the area encompassed by a box
with the following geographic coordinates: Southwest Corner: 92 degrees
West longitude, 32 degrees North latitude; Northeast Corner: 69.5
degrees West longitude, 44 degrees North latitude (OTAG Final Report,
Chapter 2). The OTAG could not include the entire Eastern U.S. within
the fine grid because of computer hardware constraints.
It is important to note that there were two key factors directly
related to air quality that OTAG considered in determining the location
of the fine grid-coarse grid line.\3\ (See OTAG Technical Supporting
Document, Chapter 2, page 6; http://www.epa.gov/
[[Page 31501]]
ttn/otag/finalrpt/.) Specifically, the fine grid-coarse grid line was
drawn to: (1) Include within the fine grid as many of the 1-hour ozone
nonattainment problem areas as possible and still stay within the
computer and model run time constraints, (2) avoid dividing any
individual major urban area between the fine grid and coarse grid, and
(3) be located along an area of relatively low emissions density. As a
result, the fine grid-coarse grid line did not track State boundaries,
and Missouri and Georgia were among several States that were split
between the fine and coarse grids. Eastern Missouri and northern
Georgia were in the fine grid while western Missouri and southern
Georgia were in the coarse grid.
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\3\ In addition to these two factors, OTAG considered three
other factors in establishing the geographic resolution, overall
size, and the extent of the fine grid. These other factors dealt
with the computer limitations and the resolution of available model
inputs.
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The analysis OTAG conducted found that emissions controls examined
by OTAG, when modeled in the entire coarse grid (i.e., all States and
portions of States in the OTAG region that are in the coarse grid) had
little impact on high 1-hour ozone levels in the downwind ozone problem
areas of the fine grid.\4\
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\4\ The OTAG recommendation on Major Modeling/Air Quality
Conclusions approved by the Policy Group, June 3, 1997 (62 FR 60318,
appendix B, November 7, 1997)
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The Court vacated EPA's determination of significant contribution
for all of Georgia and Missouri. Michigan v. EPA, 213 F.3d at 685. The
Court did not seem to call into question the proposition that the fine
grid portion of each State should be considered to make a significant
contribution downwind. However, the Court emphasized that ``EPA must
first establish that there is a measurable contribution,'' id., at 684,
from the coarse grid portion of the State before determining that the
coarse grid portion of the State significantly contributes to ozone
nonattainment downwind.
3. What Is EPA's Response to the NOX SIP Call Court Decision
Regarding Coarse Grid Sources?
In a separate rulemaking on the NOX SIP Call, known as
the Phase 2 rulemaking, EPA is addressing several issues remanded by
the court in its March 3, 2000 decision. (The Phase 2 rule was proposed
on February 22, 2002 (67 FR 8396) and is being finalized in the same
time frame as today's section 126 action). One of the Phase 2 issues is
the geographic applicability of the NOX SIP Call for States
located partially in the coarse grid. With regard to Georgia and
Missouri, EPA is retaining the existing determination that sources in
the fine grid parts of these States contribute significantly to
nonattainment downwind but is not including the coarse grid portions of
States. The EPA explained that the reasoning of the court regarding
control requirements for Georgia and Missouri also calls into question
the inclusion of the coarse grid portions of Michigan and Alabama in
the NOX SIP Call. Therefore, EPA is extending this rationale
to the States of Michigan and Alabama and EPA is revising the
NOX SIP Call to exclude the coarse grid portions of Michigan
and Alabama.
II. Final Rule Regarding Michigan Sources
A. What Is Today's Rule Regarding Michigan Coarse Grid Sources Under
the 1-Hour Standard?
In a February 22, 2002 action, EPA proposed to withdraw the section
126 findings made in response to the petitions from Connecticut and New
York under the 1-hour standard for sources that are or will be located
in the coarse grid portion of Michigan (67 FR 8386). The EPA proposed
this action to be consistent with EPA's action regarding coarse grid
sources under the NOX SIP Call. As discussed above, the
Section 126 Rule is based on many of the same analyses and information
from the NOX SIP Call. In today's action, EPA is finalizing
the rulemaking as proposed. Under today's rule, any existing or new
sources located in that affected segment of the coarse grid (north of
44 degrees latitude, south of 45.0 degrees latitude, and east of 86.0
degrees latitude) are no longer subject to the control requirements of
the Section 126 Rule.\5\ The EPA has not identified any existing
section 126 sources located in that area. There are no coarse grid
areas in other States covered by the Section 126 Rule under the 1-hour
standard. The EPA will address the coarse grid sources under the 8-hour
standard in a separate rulemaking.
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\5\ The EPA is taking a different approach to interpreting the
fine-coarse grid split for purposes of the Phase 2 NOX
SIP Call rule. The X SIP Call establishes State emissions
budget rather than regulating individual sources. Because of the
uncertainties with accurately dividing emissions between the fine
and coarse grid portions of individual counties, EPA is basing the
Phase 2 NOX SIP Call emissions budgets on all counties
that are wholly contained within the fine grid. That is, counties
that are in the coarse grid or that straddle the fine-coarse grid
line are excluded. Because the section 126 action regulates specific
stationary sources, the issue of how to apportion a full
NOX inventory on a partial-county basis does not arise.
Therefore, today's section 126 action to remove the coarse grid of
Michigan follows the fine-coarse grid line exactly. Sources located
in the fine grid portion of a county that straddles the fine-coarse
grid line are covered by the Section 126 Rule. the EPA notes that
the Section 126 Rule has already covered partial counties for
Michigan in its January 2000 Rule. In that rule, only sources east
of 86 degrees longitude and south of 45 degrees latitude were
affected.
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The EPA received only one short comment via e-mail on the proposal.
The commenter asserted that many utilities want a ``level playing
field'' with regard to emissions standards and that as a result of the
proposed action, utilities could be planned for one area with a
different set of rules. He stated that the proposal would also be a
deterrent to developing new emissions technologies if new plants could
be built without having emissions controls installed. The commenter
also suggested that many power plants could be built in a 70 by 120
mile area. He was concerned that an emissions plume from the affected
area could affect Ontario and States in the northeast.
The commenter appears not to be aware that the Section 126 Rule
under the 1-hour standard never covered the whole State of Michigan
because the relevant section 126 petitions only targeted sources in a
specific portion of the State. Under section 126, EPA must limit its
action to addressing the sources within the geographical boundaries
specified in the petitions. Today's rule shifts the boundary between
the area that is affected by the Section 126 Rule and the area that is
not affected. Only a small portion of the State is at issue and, as
mentioned above, EPA is not aware of any existing section 126 sources
in that area. The commenter did not provide any evidence that new large
EGU's are planned for the area or on what effect emissions from such
sources might have on downwind States.
The EPA disagrees with the commenter that today's action would be a
deterrent to the development of new emissions control technologies.
Only a very small portion of the Section 126 Rule is affected by
today's action. The control remedy for the Section 126 Rule is a
NOX budget trading program. Trading programs are one of the
most cost-effective means to reduce emissions. They provide the
flexibility and incentive for technology development. The EPA notes
that although the Section 126 Rule does not cover the whole State,
Michigan has adopted a statewide trading NOX rule. Any new
sources locating in the affected area, that as a result of today's rule
would no longer be subject to the Section 126 Rule, would be subject to
Michigan's statewide NOX rule. In addition, there are a
number of other emissions control requirements that sources locating in
the affected portion of Michigan would have to meet, such as new source
performance standards, new source review technology standards, and
title V acid rain
[[Page 31502]]
requirements. Thus, today's action does not result in sources being
built without emissions control requirements.
As discussed above, in the Michigan v. EPA decision on the
NOX SIP Call, the court indicated that ``EPA must first
establish that there is a measurable contribution'' from the coarse
grid portion of the State before holding the coarse grid portion of the
State partly responsible for the significant contribution of downwind
ozone nonattainment in another State. Michigan v. EPA, 213 F.3d at 684.
Elsewhere, the Court seemed to identify the standard as ``material
contribution []''. Id. In response to the court opinion, EPA is
revising the NOX SIP Call to include only the fine grid
portion, and not the coarse grid portion, of Michigan at this time. The
EPA is applying the same reasoning to the Section 126 Rule because the
Section 126 Rule relies on the technical record for the NOX
SIP Call. Therefore, EPA is finalizing the February 22, 2002 action as
proposed: EPA is revising the Section 126 Rule and denying the New York
and Connecticut petitions under the 1-hour standard with respect to
sources that are or will be located in the coarse grid portion of
Michigan.
B. Does Today's Rule Affect the Section 126 Requirements for Michigan
Fine Grid Sources or Sources Located in Other States?
Today's rule does not affect the NOX allowance
allocations for Michigan sources located in the fine grid that were
established in the January 2000 Rule. In addition, today's rule does
not affect the section 126 trading budget for Michigan or the
compliance supplement pool. Because EPA has not identified any existing
large EGUs and large non-EGUs in the coarse grid portion of Michigan
affected by today's rule, the NOX allowance calculations in
the January 2000 Rule were already based only on fine grid emissions.
This rule does not affect any of the Section 126 Rule requirements for
sources located in other States. Therefore, today's rule does not
affect the ability of any sources located in the fine grid to comply
with the section 126 requirements by the compliance deadline.
III. What Is Today's Revision to the Definition of ``Applicable
Requirement'' for Title V Operating Permit Programs?
In the February 22, 2002 action, EPA proposed to revise the
definitions of the ``applicable requirement'' in 40 CFR 70.2 and 71.2
by providing expressly that any standard or other requirement under
section 126 of the CAA is an applicable requirement and must be
included in operating permits issued under title V of the CAA. The EPA
did not receive any public comments on that proposal. Therefore, EPA is
finalizing the definitions as proposed.
Section 504(a) of the CAA explicitly requires that each permit
include ``enforceable emission limitations and standards, a schedule of
compliance, * * * and such other conditions as are necessary to assure
compliance with applicable requirements of this Act, including the
requirements of the applicable implementation plan.'' 42 U.S.C.
7661c(a). Previously, the Sec. 70.2 and Sec. 71.2 definitions of
``applicable requirement'' did not include requirements that are
imposed under section 126, even though section 126 authorizes the
Administrator to adopt standards and requirements under certain
circumstances as discussed above. Today's action remedies this omission
and clarifies the treatment, in title V operating permits, of section
126 requirements promulgated by the Administrator. Therefore, the
requirements of the Section 126 NOX Budget Trading Program
promulgated on January 18, 2000 must be included in the title V
operating permits for units subject to the program.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the 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.
Under Executive Order 12866, today's action is not a ``significant
regulatory action'' and is therefore not subject to review by OMB. In
the January 2000 Rule titled ``Findings of Significant Contribution and
Rulemaking on Section 126 Petitions for Purposes of Reducing Interstate
Ozone Transport,'' (65 FR 2674), EPA partially approved four section
126 petitions under the 1-hour ozone standard. Today's action withdraws
the section 126 findings and denies the petitions under the 1-hour
ozone standard with respect to sources located in a small portion of
Michigan.
This action does not create any additional impacts beyond what was
promulgated in the January 2000 Rule. This rule also does not raise
novel legal or policy issues. Therefore, EPA believes that this action
is not a ``significant regulatory action.''
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Today's rule does not create new requirements. Instead, this action
withdraws the section 126 requirements for sources that are or would be
located in a specified portion of Michigan.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (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
[[Page 31503]]
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the proposed rule on small
entities, small entity is defined as: (1) A small business according to
the U.S. Small Business Administration size standards for the NAIAS
codes listed in the following table;
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Size standard in number of
NAIAS code Economic activity or industry employees, millions of dollars of
revenues, or output
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322121, 322122......................... Pulp mills....................... 750
325211................................. Plastics materials, synthetic 750
resins, and nonvulcanized
elastomers.
325188, 325199......................... Industrial organic chemicals..... 1,000
324110................................. Petroleum refining............... 1,500
331111................................. Steel works, blast furnaces, and 1,000
rolling mills.
333611................................. Steam, gas, and hydraulic 1,000
turbines.
333618................................. Stationary internal combustion 1,000
engines.
333415................................. Air-conditioning and warm-air 750
heating equipment and commercial
and industrial refrigeration
equipment.
222111, 222112......................... Electric utilities............... 4 million megawatt hrs.
486210................................. Natural gas transmission......... $6.0
221330................................. Steam and air conditioning supply $10.5
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(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.
Today's rule does not create new requirements for small entities or
other sources. Instead, this action withdraws the section 126
requirements for sources that are or would be located in a specified
portion of Michigan. Therefore, I certify that this action will not
have a significant economic impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 rules with ``Federal
mandates'' that may result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 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)). 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 for
either State, local, or Tribal governments in the aggregate, or for the
private sector. This Federal action does not establish any new
requirements, as discussed above. Accordingly, no additional costs to
State, local, or Tribal governments, or to the private sector, result
from this action.
E. 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.
Today's 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 imposes no
additional burdens beyond those imposed by the January 2000 Rule. Thus,
the requirements of section 6 of the Executive Order do not apply to
this rulemaking action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' ``Policies that have Tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on
[[Page 31504]]
the distribution of power and responsibilities between the Federal
government and Indian tribes.''
This rule does not have Tribal implications. It will not have
substantial direct effects on Tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Today's action does not significantly or uniquely affect the
communities of Indian Tribal governments. As discussed above, today's
action imposes no new requirements that would impose compliance burdens
beyond those that would already apply under the January 2000 Rule.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children From Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have 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.
The 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 rule is not subject to
Executive Order 13045, because this action is not ``economically
significant'' as defined under Executive Order 12866 and the Agency
does not have reason to believe the environmental health risks or
safety risks addressed by this action present a disproportionate risk
to children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355; May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866. Today's action does not establish any new
regulatory requirements.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (``NTTAA,'' Public Law 104-113, section 12(d), 15 U.S.C. 272
note) 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.
The NTTAA does not apply because today's action does not establish
any new technical standards. This action amends the January 2000 Rule
by reducing the portion of Michigan that is covered by the rule.
J. Congressional Review Act
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 of the CRA provides an
exception to this requirement. For any rule for which an agency for
good cause finds that notice and comment are impracticable,
unnecessary, or contrary to the public interest, the rule may take
effect on the date set by the Agency. The EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This
action does not impose any additional costs and compliance burdens
under the Section 126 Rule. Instead, this action withdraws the section
126 requirements for sources that are or would be located in a
specified portion of Michigan. This rule will be effective July 6,
2004.
K. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by EPA. This
section provides, in part, that petitions for review must be filed in
the Court of Appeals for the District of Columbia Circuit (i) when the
agency action consists of ``nationally applicable regulations
promulgated, or final actions taken, by the Administrator,'' or (ii)
when such action is locally or regionally applicable, if ``such action
is based on a determination of nationwide scope or effect and if in
taking such action the Administrator finds and publishes that such
action is based on such a determination.''
For the reasons discussed in the May 25, 1999 final rule (64 FR
28250), the Administrator determined that final action regarding the
section 126 petitions is of nationwide scope and effect for purposes of
section 307(b)(1). Thus, any petitions for review of final actions
regarding the section 126 rulemaking must be filed in the Court of
Appeals for the District of Columbia Circuit within 60 days from the
date final action is published in the Federal Register.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Intergovernmental relations, Reporting and recordkeeping requirements.
40 CFR Part 71
Administrative practice and procedure, Air pollution control,
Reporting and recordkeeping requirements.
Dated: May 27, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons set forth in the preamble, chapter I of title 40 of the
Code of Federal Regulations is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
0
2. Section 52.34 is amended by revising paragraphs (c)(2)(vi) and
(g)(2)(vi) to read as follows:
[[Page 31505]]
Sec. 52.34 Action on petitions submitted under section 126 relating
to emissions of nitrogen oxides.
* * * * *
(c) * * *
(2) * * *
(vi) Portion of Michigan located south of 44 degrees latitude in
OTAG Subregion 2, as shown in appendix F, Figure F-2, of this part.
* * * * *
(g) * * *
(2) * * *
(vi) Portion of Michigan located south of 44 degrees latitude in
OTAG Subregion 2, as shown in appendix F, Figure F-6, of this part.
* * * * *
Appendix F--[Amended]
0
3. Appendix F is amended by adding a new figure F-10 in numerical order
to read as follows:
APPENDIX F TO PART 52--CLEAN AIR ACT SECTION 126 PETITIONS FROM EIGHT
NORTHEASTERN STATES: NAMED SOURCE CATEGORIES AND GEOGRAPHIC COVERAGE
* * * * *
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[GRAPHIC] [TIFF OMITTED] TR03JN04.018
PART 70--STATE OPERATING PERMIT PROGRAMS
0
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Section 70.2 is amended by renumbering paragraphs (7) through (12)
of the definition of ``applicable requirement'' as paragraphs (8)
through (13) and adding a new paragraph (7) to read as follows:
Sec. 70.2 Definitions.
* * * * *
Applicable requirement * * *
(7) Any standard or other requirement under section 126(a)(1) and
(c) of the Act;
* * * * *
PART 71--FEDERAL OPERATING PERMIT PROGRAMS
0
1. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Section 71.2 is amended by renumbering paragraphs (7) through (12)
of the definition of ``applicable requirement'' as paragraphs (8)
through (13) and adding a new paragraph (7) to read as follows:
Sec. 71.2 Definitions.
* * * * *
Applicable requirement * * *
(7) Any standard or other requirement under section 126(a)(1) and
(c) of the Act;
* * * * *
[FR Doc. 04-12553 Filed 6-2-04; 8:45 am]
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