[Federal Register Volume 70, Number 39 (Tuesday, March 1, 2005)]
[Proposed Rules]
[Pages 9897-9901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3450]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51, 78, and 97

[Docket No. OAR-2004-0440; FRL-7876-2]
RIN 2060-AJ16


Stay of the Findings of Significant Contribution and Rulemaking 
for Georgia for Purposes of Reducing Ozone Interstate Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In this action, EPA is proposing to stay the effectiveness of 
a final rule we issued under section 110 of the Clean Air Act (CAA) 
related to the interstate transport of nitrogen oxides 
(NOX). On April 21, 2004, EPA issued a final rule that 
required the State of Georgia to submit State implementation plan (SIP) 
revisions that prohibit specified amounts of NOX emissions--
one of the precursors to ozone (smog) pollution--for the purposes of 
reducing

[[Page 9898]]

NOX and ozone transport across State boundaries in the 
eastern half of the United States. This rule became effective on June 
21, 2004.
    Subsequently, the Georgia Coalition for Sound Environmental Policy 
(GCSEP or Petitioners) filed a petition for reconsideration requesting 
that EPA reconsider the inclusion of the State of Georgia in the 
NOX SIP Call Rule and also requested a stay of the 
effectiveness of the rule as it relates to the State of Georgia only.
    In response to this petition, EPA is proposing to stay the 
effectiveness of the April 21, 2004 rule as it relates to the State of 
Georgia only, while EPA conducts notice-and-comment rulemaking to 
further address the issues raised by the Petitioners.

DATES: Comments must be received on or before March 31, 2005. A public 
hearing, if requested, will be held in Atlanta, Georgia on March 15, 
2005, beginning at 9 a.m.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0440, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-1741.
     Mail: Air Docket, Environmental Protection Agency, 
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of 2 copies.
     Hand Delivery: EPA Docket Center (Air Docket), U.S. 
Environmental Protection Agency, 1301 Constitution Avenue, NW., Room 
B108, Washington, DC 20004. Such deliveries are only accepted during 
the Docket's normal hours of operation, and special arrangements should 
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. OAR-2004-0440. 
The EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the Federal regulations.gov Web sites are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through EDOCKET or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Air Docket, U.S. Environmental Protection Agency, EPA West, 
Room B102, 1301 Constitution Ave., NW., Washington, DC. The 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 Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: General questions concerning today's 
action should be addressed to Jan King, Office of Air Quality Planning 
and Standards, Air Quality Strategies and Standards Division, C539-02, 
Research Triangle Park, NC 27711, telephone (919) 541-5665, e-mail 
[email protected]. Legal questions should be directed to Winifred Okoye, 
Office of General Counsel, (2344A), 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, telephone (202) 564-5446, e-mail 
[email protected].


SUPPLEMENTARY INFORMATION:

Public Hearing

    A public hearing, if requested, will be held on March 15, 2005, 
beginning at 9 a.m in Atlanta, Georgia. The hearing will be held at the 
U.S. Tax Court, Courtroom 1136, Russell Federal Building and 
Courthouse, 75 Spring Street, SW., Atlanta, Georgia 30303. If you wish 
to request a hearing and present testimony or attend the hearing, you 
should notify, on or before March 9, 2005, Jan King, Office of Air 
Quality Planning and Standards, Air Quality Strategies and Standards 
Division, C539-02, Research Triangle Park, NC 27711, telephone (919) 
541-5665, e-mail [email protected]. Oral testimony will be limited to 5 
minutes each. The hearing will be strictly limited to the subject 
matter of the proposal, the scope of which is discussed below. Any 
member of the public may file a written statement by the close of the 
comment period. Written statements (duplicate copies preferred) should 
be submitted to Docket OAR-2004-0440, at the address listed above for 
submitted comments. The hearing schedule, including lists of speakers 
will be posted on EPA's Web page at http://www.epa.gov/ttn/naaqs/ozone/rto/rto.html. A verbatim transcript of the hearing and written 
statements will be made available for copying during normal working 
hours at the Office of Air and Radiation Docket and Information Center 
at the address listed for inspection of documents.
    If no requests for a public hearing are received by close of 
business on March 9, 2005, the hearing will be cancelled. The 
cancellation will be announced on the Web page at the address shown 
above.

Outline

I. Background
II. What is the Scope of This Proposal?
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    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. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

[[Page 9899]]

I. Background

    On October 27, 1998, EPA found that emissions of NOX 
from 22 States and the District of Columbia (23 States) were 
significantly contributing to downwind areas' nonattainment of the 1-
hour ozone national ambient air quality standard (NAAQS). (Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone, 63 FR 57354, October 27, 1998 (NOX SIP 
Call Rule)). More specifically, EPA found that the State of Georgia was 
significantly contributing to 1-hour ozone nonattainment in Birmingham, 
Alabama and Memphis, Tennessee. (63 FR 57394). The EPA set forth 
requirements for each of the affected upwind States to submit SIP 
revisions prohibiting those amounts of NOX emissions which 
significantly contribute to downwind nonattainment. The EPA further 
required that each State SIP provide for NOX reductions in 
amounts that any remaining emissions would not exceed the level 
specified in EPA's NOX SIP Call regulations for that State 
in 2007.
    A number of parties, including certain States as well as industry 
and labor groups, challenged the NOX SIP Call Rule. More 
specifically, Georgia and Missouri industry petitioners citing to the 
Ozone Transport Assessment Group (OTAG), modeling and recommendations, 
maintained that EPA had record support only for the inclusion of 
eastern Missouri and northern Georgia, as significantly contributing to 
downwind nonattainment. And in Michigan v. EPA, 213 F. 3d 663 (DC Cir., 
2000), cert. denied, 121 S. Ct. 1225 (2001) (Michigan), the DC Circuit 
Court vacated and remanded EPA's inclusion of the entire States of 
Georgia and Missouri, on grounds that OTAG had recommended 
NOX controls to reduce transport for areas within the fine 
grid parts of its modeling but recommended no additional controls for 
areas within the coarse grid of its modeling. Eastern Missouri and 
northern Georgia lie within the fine grid. The Court, however, did not 
question EPA's proposition that eastern Missouri and northern Georgia 
should be considered as significantly contributing to downwind 
nonattainment.
    On February 22, 2002, EPA proposed the inclusion of only the fine 
grid parts of Georgia and Missouri in the NOX SIP Call. 
(Response to Court Decisions on the NOX SIP Call, 
NOX SIP Call Technical Amendments, and Section 126 Rules, 67 
FR 8396, February 22, 2002.) The EPA also proposed revised 
NOX budgets for Georgia and Missouri that included only 
these portions of each State.
    On April 21, 2004, EPA finalized, as proposed, the inclusion of 
eastern Missouri and northern Georgia in the NOX SIP Call 
Rule, allocated revised NOX budgets that reflected the 
inclusion of sources located in only these areas and set revised SIP 
submittal and full compliance dates of April 1, 2005, and May 1, 2007, 
respectively (69 FR 21604).
    On June 16, 2004, the GCSEP filed a petition for reconsideration of 
the inclusion of the State of Georgia in the NOX SIP Call, 
under section 307(d) of the CAA. Petitioners maintained that grounds 
that were of central relevance had occurred after the close of notice-
and-comment period for the February 22, 2002, proposal. More 
specifically, Petitioners cited EPA's March 12, 2004, 1-hour ozone 
attainment redesignation of Birmingham, Alabama (69 FR 11798). 
Additionally, GCSEP cited to the earlier January 17, 1995, Memphis, 
Tennessee, 1-hour ozone attainment redesignation (60 FR 3352), and 
maintained that the State of Georgia should not be subject to the 
NOX SIP Call Rule because it was no longer significantly 
contributing to 1-hour nonattainment in any downwind areas. Petitioners 
also raised other issues such as the effect of EPA's approval and the 
State of Georgia's implementation of the Atlanta, Georgia attainment 
demonstration SIP since May 1, 2003. Petitioners further requested a 
stay of the effectiveness of the April 21, 2004, rule as it relates to 
the State of Georgia, under section 307(d)(7)(B). Finally, GCSEP filed 
a challenge in the Court of Appeals for the 11th Circuit, which has 
since been transferred to the DC Circuit.

II. What Is the Scope of This Proposal?

    The EPA, in response to GCSEP's request, intends to initiate 
notice-and-comment rulemaking that will address the issues raised by 
GCSEP. In the upcoming proposal, EPA expects to provide notice-and-
comment opportunity to the general public on the issues raised by GCSEP 
and several other issues as they relate to the continued applicability 
of the NOX SIP Call Rule to the State of Georgia. 
Accordingly, in this action, EPA is proposing to stay the effectiveness 
of the April 21, 2004, rule with respect to the State of Georgia only, 
during the pendency of the notice-and-comment rulemaking proceedings 
that will address the petition for reconsideration.

III. 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.
    OMB has exempted this regulatory action from Executive Order 12866 
review. This action is proposing to stay its finding in Phase II of the 
NOX SIP Call related to Georgia and does not impose any 
additional control requirements or costs.

B. Paperwork Reduction Act

    Today's action does not add any information collection requirements 
or increase burden under the provisions of the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.), and therefore is not subject to these 
requirements.

C. Regulatory Flexibility Act (RFA)

    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 
Procedures Act or any other statute unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined in the Small Business Administration's (SBA)

[[Page 9900]]

regulations at 13 CFR 12.201; (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district or 
special district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    This action neither imposes requirements on small entities nor will 
there be impacts on small entities beyond those, if any, required by or 
resulting from the NOX SIP Call and the Section 126 Rules. 
We have therefore concluded that today's proposed rule will relieve 
regulatory burden for all small entities affected by this rule. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

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, 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 to State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year. Before promulgating a rule for which a 
written statement is needed, section 205 of the UMRA generally requires 
EPA to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows EPA to adopt an 
alternative other than the least costly, most cost-effective or least 
burdensome alternative if the Administrator publishes with the final 
rule an explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or Tribal 
governments or the private sector. The EPA prepared a statement for the 
final NOX SIP Call that would be required by UMRA if its 
statutory provisions applied. Today's action does not create any 
additional requirements beyond those of the final NOX SIP 
Call, therefore, no further UMRA analysis is needed. This proposed rule 
stays the portion of the NOX SIP Call that would require the 
State of Georgia to implement NOX emissions controls 
requirements.

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.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Today's action does not impose 
an enforceable duty on these entities. This action proposes to stay the 
NOX SIP Call requirements as they relate to Georgia and 
therefore, imposes no additional burdens beyond those imposed by the 
final NOX SIP Call. Thus, Executive Order 13132 does not 
apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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 9, 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.'' This proposed rule does not 
have Tribal implications, as specified in Executive Order 13175. 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. The EPA stated in the final 
NOX SIP Call Rule that Executive Order 13084 did not apply 
because that final rule does not significantly or uniquely affect the 
communities of Indian Tribal governments or call on States to regulate 
NOX sources located on Tribal lands. The same is true of 
today's action. Thus, Executive Order 13175 does 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 Risks 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

[[Page 9901]]

the planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. This action does not impose 
requirements beyond those, if any, required by or resulting from the 
NOX SIP Call and Section 126 Rules.
    The public is invited to submit or identify peer-reviewed studies 
and data, of which the Agency may not be aware, that assessed results 
of early life exposure to NOX (or ground-level ozone, of 
which NOX is a precursor).

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, Actions 
Concerning Regulations 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.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 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. This proposed 
rulemaking does not involve technical standards, therefore, EPA is not 
considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

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

List of Subjects

40 CFR Part 51

    Administrative practice and procedure, Air pollution control, 
Environmental protection, Intergovernmental relations, Ozone, Reporting 
and recordkeeping requirements.

40 CFR Part 78

    Air pollution control, Nitrogen oxides, Ozone, Acid Rain Program, 
Trading budget, Compliance supplement pool.

40 CFR Part 97

    Administrative practice and procedure, Air pollution control, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements.

    Dated: February 15, 2005.
Jeffrey R. Holmstead,
Assistant Administrator for Air and Radiation.
[FR Doc. 05-3450 Filed 2-28-05; 8:45 am]
BILLING CODE 6560-50-P