Nonattainment Major New Source Review Implementation Under 8-Hour Ozone National Ambient Air Quality Standard: Reconsideration, 17018-17027 [05-6630]
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Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules
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BILLING CODE 4310–05–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 51
[E–Docket ID No. OAR–2003–0079, FRL–
7895–3]
RIN 2060–AJ99
Nonattainment Major New Source
Review Implementation Under 8-Hour
Ozone National Ambient Air Quality
Standard: Reconsideration
Environmental Protection
Agency (EPA).
ACTION: Proposed rule; notice of public
hearing.
AGENCY:
SUMMARY: The EPA is requesting
comment on issues raised in a petition
for reconsideration of EPA’s rule to
implement the 8-hour ozone national
ambient air quality standard (NAAQS or
8-hour standard). On April 30, 2004,
EPA took final action on key elements
of the program to implement the 8-hour
standard. In that final action, we (the
EPA) addressed certain implementation
issues related to the 8-hour standard,
including aspects of implementation of
the nonattainment major New Source
Review (NSR) program mandated by
part D of title I of the Act (CAA or Act).
Following this action, on June 29,
2004 and September 24, 2004, three
different parties each filed a petition for
reconsideration concerning
implementation of the 8-hour standard,
including both major NSR and other
issues. By letter dated September 23,
2004, EPA granted reconsideration of
three issues raised in the petition for
reconsideration filed by Earthjustice on
behalf of several environmental
organizations. On February 3, 2005, we
published a proposed rule providing
additional information and soliciting
comment on two of the issues on which
we granted reconsideration. Today, we
provide additional information and seek
comment on the third issue, which
relates to two aspects of the major NSR
provisions in the April 30, 2004 final
rules. Specifically, we request comment
on whether we should interpret the Act
to require areas to retain major NSR
requirements that apply to certain 1hour ozone nonattainment areas in
implementing the 8-hour standard, and
whether EPA properly concludes that a
State’s request to remove 1-hour major
NSR programs from its State
Implementation Plan (SIP) will not
interfere with any applicable
requirement within the meaning of
Section 110(l) of the Act.
DATES: Comments. Comments must be
received on or before May 4, 2005.
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Public Hearing. The public hearing
will convene at 9 a.m. and will end at
5 p.m. on April 18, 2005. All
individuals who have registered to
speak before the date of the public
hearing will be given an opportunity to
speak. Because of the need to resolve
the issues raised in this in a timely
manner, EPA will not grant requests for
extension of the public comment period.
For additional information on the public
hearing and requesting to speak, see the
SUPPLEMENTARY INFORMATION section of
this proposed rule.
ADDRESSES: Comments. Submit your
comments, identified by Docket ID No.
OAR–2003–0079, by one of the
following methods to the docket. If
possible, also send a copy of your
comments to Ms. Lynn Hutchinson by
either mail or e-mail as identified in the
FOR FURTHER INFORMATION CONTACT
section.
1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions for submitting
comments.
2. Agency Web site: https://
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.
3. E-mail: A-and-R-Docket@EPA.gov.
Attention E-Docket No. OAR–2003–
0079.
4. Fax: The fax number of the Air
Docket is (202) 566–1741. Attention EDocket No. OAR–2003–0079.
5. Mail: Air Docket, Environmental
Protection Agency, Attention E-Docket
No. OAR–2003–0079, Mailcode: 6102T,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460. In addition,
please mail a copy of your comments on
the information collection provisions to
the Office of Information and Regulatory
Affairs, Office of Management and
Budget (OMB), Attn: Desk Officer for
EPA, 725 17th St., NW., Washington, DC
20503.
6. Hand Delivery: Air Docket,
Attention E-Docket No. OAR–2003–
0079, Room B–102, Environmental
Protection Agency West, 1301
Constitution Avenue, NW., Washington,
DC 20460. 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–2003–0079. 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 https://
www.epa.gov/edocket, including any
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Industry group
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
https://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 and Radiation Docket,
EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington,
DC. This docket facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
Air and Radiation Docket telephone
number is (202) 566–1742. 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 (non-NSR notice says
566–1741).
SIC a
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 email 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
NAICS b
Electric Services .........................................
Petroleum Refining .....................................
Industrial Inorganic Chemicals ...................
Industrial Organic Chemicals .....................
Miscellaneous Chemical Products .............
Natural Gas Liquids ...................................
Natural Gas Transport ...............................
Pulp and Paper Mills ..................................
Paper Mills .................................................
Automobile Manufacturing .........................
491
291
281
286
289
132
492
261
262
371
Pharmaceuticals .........................................
283
Ms.
Lynn Hutchinson, Office of Air Quality
Planning and Standards, (C339–03),
U.S. EPA, Research Triangle Park, North
Carolina 27711, telephone number (919)
541–5795, fax number (919) 541–5509,
e-mail: hutchinson.lynn@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected by the
subject rule for today’s action include
sources in all industry groups. The
majority of sources potentially affected
are expected to be in the following
groups.
221111, 221112, 221113, 221119, 221121, 221122
324110
325181, 325120, 325131, 325182, 211112, 325998, 331311, 325188
325110, 325132, 325192, 325188, 325193, 325120, 325199
325520, 325920, 325910, 325182, 325510
211112
486210, 221210
322110, 322121, 322122, 322130
322121, 322122
336111, 336112, 336211, 336992, 336322, 336312, 336330, 336340, 336350,
336399, 336212, 336213
325411, 325412, 325413, 325414
a Standard
Industrial Classification.
b North American Industry Classification System.
Entities potentially affected by the
subject rule for today’s action also
include State, local, and Tribal
governments that are delegated
authority to implement these
regulations.
B. What Should I Consider as I Prepare
My Comments for EPA?
You may find the following
suggestions helpful for preparing your
comments.
• Explain your views as clearly as
possible.
• Describe any assumptions that you
used.
• Provide any technical information
and/or data you used that support your
views.
• If you estimate potential burden or
costs, explain how you arrived at your
estimate.
• Provide specific examples to
illustrate your concerns.
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• Offer alternatives.
• Make sure to submit your
comments by the comment period
deadline identified.
• To ensure proper receipt by EPA,
identify the appropriate docket
identification number in the subject line
on the first page of your response. It
would also be helpful if you provided
the name, date, and Federal Register
citation related to your comments.
C. Where Can I Get a Copy of This
Document and Other Related
Information?
In addition to being available in the
docket, an electronic copy of today’s
notice is also available on the World
Wide Web. Following signature by the
EPA Administrator, a copy of today’s
notice will be posted in the regulations
and standards section of the New
Source Review home page located at
https://www.epa.gov/nsr.
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D. What Information Should I Know
About the Public Hearing?
The public hearing will be held at the
EPA’s facility at 109 TW Alexander
Drive, Research Triangle Park, NC, or at
an alternate facility nearby. Please check
our Web site at https://www.epa.gov/nsr/
for information and updates concerning
the public hearing.
The public hearing will provide
interested parties the opportunity to
present data, views, or arguments
concerning the issues raised in this
notice. People interested in attending or
presenting oral testimony are
encouraged to register in advance by
contacting Ms. Chandra Kennedy,
OAQPS, Integrated Implementation
Group, Information Transfer and
Program Integration Division (C339–03),
U.S. Environmental Protection Agency,
Research Triangle Park, NC 27711;
telephone number (919) 541–5319 or e-
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mail kennedy.chandra@epa.gov no later
than April 14, 2005. Presentations will
be limited to 5 minutes each. We will
assign speaking times to speakers who
make a timely request to speak at the
hearing. We will notify speakers of their
assigned times by April 18, 2005. We
will attempt to accommodate all other
people who wish to speak, as time
allows.
The EPA’s planned seating
arrangement for the hearing is theater
style, with seating available on a first
come first served basis for about 250
people. Attendees should note that the
use of pickets or other signs will not be
allowed on either government or hotel
property.
As of the date of this announcement,
the Agency intends to proceed with the
hearing as announced; however,
unforeseen circumstances may result in
a postponement. Therefore, we advise
members of the public who plan to
attend the hearing to contact Ms.
Chandra Kennedy at the above
referenced address to confirm the
location and date of the hearing. You
may also check our New Source Review
Web site at https://www.epa.gov/nsr for
any changes in the date or location.
The record for this action will remain
open until May 19, 2005, to
accommodate submittal of information
related to the public hearing.
E. How Is This Notice Organized?
The information presented in this
notice is organized as follows:
I. General Information
A. Does This Action Apply To Me?
B. What Should I Consider as I Prepare My
Comments for EPA?
C. Where Can I Get a Copy of This
Document and Other Related
Information?
D. What Information Should I Know About
the Public Hearing?
E. How Is This Notice Organized?
II. Background
III. Today’s Action on Reconsideration
A. Reconsideration Petitions
B. Schedule for Reconsideration and Status
of Final Rules
IV. Rational and Legal Basis
A. Overview
B. The Clean Air Act Does Not Compel
EPA To Retain 1-Hour Major NSR
Requirements in Implementing the 8Hour Standard Because Major NSR Is
Not a ‘‘Control’’.
C. No State’s Removal of 1-Hour Major
NSR Requirements From the SIP Will
Interfere With Any Applicable
Requirement Under the Act Within the
Meaning of Section 110(l)
D. Request for Comment
V. Statutory and Executive Order Reviews
A. Executive Order 12866—Regulatory
Planning and Review
B. Paperwork Reduction Act
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C. Regulatory Flexibility Act (RFA), as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
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
Risks and Safety Risks
H. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898—Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
VI. Statutory Authority
II. Background
On July 18, 1997, we revised and
strengthened the ozone NAAQS to
change from a standard measured over
a 1-hour period (1-hour standard) to a
standard measured over an 8-hour
period (8-hour standard). Previously,
the 1 hour standard was 0.12 ppm. We
established the new 8-hour standard at
0.08 ppm. See 62 FR 38856. Following
revision of the standard, we
promulgated an implementation rule
that provided for implementation of the
8-hour standard under the general
nonattainment area provisions of
Subpart 1 of Part D of the Act. See 62
FR 38421. Subsequently, the Supreme
Court ruled that our implementation
approach was unreasonable because we
did not provide a role for the generally
more stringent ozone specific provisions
of Subpart 2 of Part D of the Act in
implementing the 8-hour standard. See
Whitman v. Amer. Trucking Assoc., 531
U.S. 457, 471–476, 121 S.Ct. 903, 911–
914 (2001). The Court remanded the
implementation strategy to EPA to
develop a reasonable approach for
implementation. Id. Accordingly, on
June 2, 2003 (68 FR 32802), we
proposed various options for
transitioning from the 1-hour to the 8hour standard, and for how the 8-hour
standard would be implemented under
both subpart 1 and subpart 2. On August
6, 2003 (68 FR 46536), we published a
notice of availability of draft regulatory
text to implement the 8-hour standard.
Among other things, this proposed rule
included certain provisions for
implementing major NSR. Specifically,
we proposed that major NSR would
generally be implemented in accordance
with an area’s 8-hour ozone
nonattainment classification, but we
would provide an exception for areas
that were designated nonattainment for
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the 1-hour standard at the time of
designation for the 8-hour standard. If
the classification for a 1-hour
nonattainment area is higher than its
classification under the 8-hour standard,
then under the proposed rule, the major
NSR requirements in effect for the 1hour standard would have continued to
apply under the 8-hour standard even
after we revoked the 1-hour standard.
(68 FR 32821).
On April 30, 2004 (69 FR 23951), we
promulgated Phase I of the new
implementation rule. In response to
comments received on the proposal, we
revised the implementation approach
for major NSR under the 8-hour
standard. Specifically, we determined
that major NSR would be implemented
in accordance with an area’s 8-hour
ozone nonattainment classification. For
those areas that we classify moderate
and above, major NSR is implemented
under subpart 2. We also indicated that,
when we revoke the 1-hour standard, a
State is no longer required to retain a
nonattainment major NSR program in its
SIP based on the requirements that
applied by virtue of the area’s previous
classification under the 1-hour standard.
We further indicated that we would
approve a request to remove these
requirements from a State’s SIP because
we determined based on section 110(l)
of the Act that such changes will not
interfere with any applicable
requirements of the Act, including a
State’s ability to reach attainment of the
8-hour standard or reasonable further
progress (RFP) (69 FR 23985). We noted
that States will be required to
implement a major NSR program based
on the 8-hour classifications. We also
emphasized that emission limitations
and other requirements in major NSR
permits issued under 1-hour major NSR
programs will remain in effect even after
we revoke the 1-hour standard (69 FR
23986).
III. Today’s Action on Reconsideration
A. Reconsideration Petitions
Following publication of the April 30,
2004 final rule, the Administrator
received three petitions, pursuant to
section 307(d)(7)(B) of the Act,
requesting reconsideration of certain
aspects of the final rule.1 On June 29,
1 Petitioners are: (1) Earthjustice on behalf of the
American Lung Association, Environmental
Defense, Natural Resources Defense Council, Sierra
Club, Clean Air Task Force, Conservation Law
Foundation, and Southern Alliance for Clean
Energy; (2) the National Petrochemical and Refiners
Association and the National Association of
Manufacturers; and (3) the American Petroleum
Institute, American Chemistry Council, American
Iron and Steel Institute, National Association of
Manufacturers and the U.S. Chamber of Commerce.
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2004, Earthjustice submitted one of the
three petitions that we received. This
petition seeks reconsideration of certain
elements of the Phase I Ozone
Implementation Rule, including
elements of the major NSR provisions.
With respect to major NSR, Petitioners
contend that the final rules are unlawful
because the rules violate Section 110(l)
and Section 172(e) of the Act by not
requiring 8-hour ozone nonattainment
areas to continue to apply major NSR
requirements based on the area’s 1-hour
ozone nonattainment classification.
Petitioners also allege that EPA acted
unlawfully by stating that we will
approve a State’s request to remove 1hour requirements from the SIP based
on our finding that such a revision
would not violate Section 110(l) for any
State. Petitioners assert that these major
NSR provisions and our rationale for
them were added to the final action after
the close of the public comment period.
Thus, Petitioners claim, EPA failed to
provide notice and opportunity for
public comment concerning these
provision as required under CAA
Section 307(d)(5). On September 23,
2004, we granted reconsideration of
three issues raised in the Earthjustice
Petition. In an action dated February 3,
2005, we issued a Federal Register
notice addressing two of those issues:
(1) The provision that section 185 fees
would no longer apply for a failure to
attain the 1-hour standard once we
revoke the 1-hour standard; and (2) the
timing for determining what is an
‘‘applicable requirement.’’ 70 FR 5593.
Today, we seek comment on the third
issue raised in that petition, which
related to elements of the major NSR
program. Specifically, we request
comment on: (1) Whether we must
interpret the Act to require States to
continue major NSR requirements under
the 8-hour standard based on an area’s
higher classification under the 1-hour
standard; and (2) whether revising a
State SIP to remove 1-hour major NSR
requirements is consistent with Section
110(l) of the Act. As previously
discussed, we proposed an approach
concerning whether 1-hour
nonattainment major NSR requirements
must remain in the SIP after we revoke
the 1-hour standard. (68 FR at 32821–
22.) The public had an opportunity to
comment on the approach we proposed,
and in fact some commenters advocated
replacing the 1-hour major NSR program
with the 8-hour program. Nonetheless,
we want Petitioners and others to have
every opportunity to comment on our
We are continuing to review the issues raised in the
second and third of these petitions for
reconsideration.
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approach and to provide additional
information that they believe to be
relevant. For these reasons, we provide
further explanation of our rationale for
this action and request public comment
on this approach. We will consider
these comments and then make a final
decision regarding the implementation
of the NSR program under the 8-hour
standard.
B. Schedule for Reconsideration and
Status of Final Rules
We plan to take final action on our
grant of reconsideration by the end of
May 2005. A State can only remove 1hour NSR SIP provisions after we
revoke the 1-hour standard. We plan to
revoke the standard on June 15, 2005.
Accordingly, no changes in 1-hour
major NSR SIP programs could occur
before June 15, 2005. The final rules
concerning applicability of major NSR
under the 8-hour standard remain in
effect as promulgated until our final
action on this reconsideration.
IV. Rationale and Legal Basis
A. Overview
It is a basic tenet of administrative
law that expert agencies have discretion
to interpret ambiguous statutory terms.
Chevron, U.S.A., Inc. v. NRDC, 467 U.S.
387 (1984). We exercised this discretion
in determining how to implement
subpart 2 requirements for major NSR
under the 8-hour standard, an issue that
the Supreme Court has recognized is
‘‘ambiguous.’’ 2
In determining how to implement the
provisions of subpart 2 for the major
NSR program under the 8-hour
standard, we considered the statutory
requirements, Congressional intent as
expressed in the CAA legislative
history, the history of the NSR
regulatory program, and our actions on
1-hour ozone Rate of Progress (ROP)
plans and attainment demonstrations in
general as they relate to nonattainment
major NSR programs. We discuss this
information below.
Our review of this information, as
well as public comments on the
proposed rule, supports our conclusion
that once we revoke the 1-hour
standard, the Act does not require States
to retain a nonattainment major NSR
program in their SIPs based on the
requirements that applied by virtue of
the area’s previous classification under
the 1-hour standard. It also supports our
conclusion that, based on section 110(l)
2 See Whitman, 531 U.S. at 484 (‘‘The statute is
in our view ambiguous concerning the manner in
which Subpart 1 and Subpart 2 interact with regard
to revised ozone standards, and we would defer to
the EPA’s reasonable resolution of that ambiguity.’’)
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17021
of the Act, removing the 1-hour major
NSR program does not interfere with
any applicable requirements of the Act,
including a State’s ability to reach
attainment of the 8-hour standard and
RFP.
B. The Clean Air Act Does Not Compel
EPA To Retain 1-Hour Major NSR
Requirements in Implementing the 8Hour Standard Because Major NSR Is
Not a ‘‘Control’’
Section 172(e) applies when we relax
a NAAQS. It specifies that we ‘‘shall
provide for controls which are not less
stringent than the controls applicable to
areas designated nonattainment before
such relaxation.’’ By its terms, it does
not directly apply to requirements to
implement the 8-hour standard, because
we strengthened the ozone NAAQS
when we enacted the 8-hour standard.
Nonetheless, we view this provision as
an expression of Congressional intent
that States may not remove control
measures in areas which are not
attaining a NAAQS when EPA revises
that standard to make it more stringent,
as is the case with the 8-hour standard.
See 68 FR 32819. Accordingly, we
required States to retain certain
requirements associated with the 1-hour
ozone nonattainment classification in
implementing the 8-hour standard. See
generally 69 FR 23951.
Notwithstanding the requirement to
retain certain 1-hour control measures,
we determined that Section 172(e) and
our interpretation of Congressional
intent does not mandate that States
retain 1-hour major NSR requirements
under the 8-hour standard, because the
major NSR program does not impose
emissions ‘‘controls’’ that reduce a
nonattainment area’s emissions below
that area’s baseline year inventory. In
this respect, major NSR is not a
‘‘control’’ within the meaning of Section
172(e). Thus, we concluded that because
major NSR programs based on 1-hour
classifications would not contribute
emissions reductions below baseline
levels, those provisions are not
‘‘controls’’ that need to be preserved in
implementing the 8-hour standard.
The term ‘‘controls’’ as used in
Section 172(e) is ambiguous. In
determining whether the reference to
‘‘controls’’ in Section 172(e) covers 1hour NSR requirements, and thus
whether we should interpret the Act as
requiring such controls to remain
effective after revocation of the 1-hour
standard, we looked first to the CAA
statutory language and structure. We
reasoned that ‘‘[t]he role of the NSR
permitting program as a growth
measure, rather than a control measure,
is evidenced in the structure of the Act,
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which delineates nonattainment NSR
and control measures as separate SIP
requirements,’’ citing, among other
things, Section 110(a)(2)(A) and
110(a)(2)(C). (69 FR at 23986). Similarly,
Section 172(c), which identifies the
requirements for nonattainment plans,
lists requirements for implementation of
control measures separately from the
provision requiring permits for new and
modified major stationary sources.
Compare Sections 172(c)(1) and (c)(6)
(referring to control measures) with
Section 172(c)(5) (referring to permits
for new and modified major stationary
sources).
Second, to resolve the ambiguity over
whether the term ‘‘controls’’ in section
172(e) covers 1-hour NSR requirements,
we further looked to Congress’ purpose
in creating the major NSR program. The
1970 statute did not contain any
provisions concerning permitting of
new sources, either in attainment or
nonattainment areas. The statute set
1975 as the deadline to meet the
NAQQS in most regions, with some
extensions until 1977. By the time of the
1977 Amendments, many areas had
missed their attainment deadlines, and
it became apparent that, despite
significant progress, SIPs were
inadequate to achieve the NAAQS in
many areas of the country.
In 1977 Congress considered whether
new source growth could be allowed in
areas not attaining the NAAQS.
A major weakness in implementation of
the 1970 Act has been the failure to assess
the impact of emissions from new sources of
pollution on State plans to attain air quality
standards by statutory deadlines. States have
permitted growth on the assumption that a
deadline was sufficiently distant so that
future emissions reductions could be made to
compensate for the initial increases. It can
now be seen that these assumptions were
wrong. Some mechanism is needed to assure
that before new or expanded facilities are
permitted, a State demonstrate that these
facilities can be accommodated within its
overall plan to provide for attainment of air
quality standards.
One mechanism is a case-by-case review of
each new or modified major source of
pollution that seeks to locate in a region
exceeding an ambient standard. Such a
review requires matching reductions from
existing sources against emissions expected
from the new source in order to assure that
introduction of the new source will not
prevent attainment of the applicable
standard by the statutory deadline. This is
the mechanism adopted by the Committee as
a condition for approval of an
implementation plan revision under section
110(a)(3) and for extensions of the oxidant
and carbon monoxide attainment deadlines
beyond 1982. Sen. Rep. 95–127 at 55 (May
10, 1977).
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Congress thus recognized the need for
a balance between the goals of attaining
air quality standards and providing for
new economic growth. As part of the
1977 Amendments, Congress amended
the Act to, among other things, establish
a statutory approach to permit growth in
polluted areas, while requiring
attainment of the NAAQS by specific
deadlines.3 This approach established
the basic SIP process and requirements
for attaining the NAAQS.
The major NSR program’s purpose ‘‘is
to permit States to allow continued
growth or expansion in nonattainment
areas, so long as this growth or
expansion is undertaken in a manner
consistent with the goals and objectives
of the Clean Air Act.’’ See H.R. Rpt. 95–
294 at 210 (May 12, 1977). Section
172(a)(2) of the Act requires attainment
as expeditiously as practicable
considering the availability and
feasibility of control measures and
Section 172(c)(1) and (c)(6) require
implementation of all reasonably
available control measures as
expeditiously as practicable to provide
for attainment of the NAAQS by the
area’s attainment date. Conversely,
Section 173(a)(1)(A) requires only that
growth due to proposed sources, when
considered together with the other plan
provisions required under Section 172,
be sufficient to ensure RFP toward
attainment. Thus, unlike the control
measures required by Section 172(c)(1)
and (c)(6), major NSR is not a measure
to reduce emissions to assure
attainment; nor did Congress identify
the program as a control measure to
help areas achieve attainment ‘‘as
expeditiously as practicable.’’ Rather,
Congress intended that the effectiveness
of major NSR in minimizing the impact
of increased emissions should be
considered together with the State’s
other SIP measures to assure, consistent
with Section 172(a)(2), that emissions
from new sources will be consistent
with RFP. Our interpretation is
supported by the legislative record
wherein Congress stated that
In allowing new sources to locate, and
existing sources to expand, in presently
unhealthy air areas, the committee realizes
that some worsening of air quality or delay
in actual attainment of the national ambient
air standards will result. This is inevitable,
as a result the committee had to accept as a
consequence of allowing additional
economic growth in these area. Id. at 214–
215.
Accordingly, based on our analysis of
the statutory language and structure,
3 Sections 107(d) and 172 of the Act (42 U.S.C.
7407(d) and 7502; Sections 129(a) and (c) of the
1977 Amendments, Pub. L. No. 95–95.
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and Congress’ purpose in creating the
major NSR as a measure to mitigate
emissions growth rather than a measure
to reduce existing emissions levels, we
conclude that Congress did not mean to
include major NSR within the
‘‘controls’’ that are required to be
maintained in the SIP under our
antibacksliding approach and Section
172(e).
We note that recent case law upheld
the Agency’s approach of looking to
Section 110 to determine the meaning of
a similar phrase, ‘‘measures with respect
to the control,’’ of pollutants in Section
175A of the Act concerning
maintenance plans.4 Greenbaum v. U.S.
EPA, 370 F.3d 527, 536–37 (7th Cir.
2004). In reviewing EPA’s determination
that the phrase did not include
nonattainment major NSR, the court
found the phrase ambiguous, and stated:
It was entirely permissible, and indeed
logical, for the EPA to look to § 110 to
determine the meaning of the word
‘‘measure’’ in § 175A as § 110 lists the
provisions required to be included in a
nonattainment SIP.
Likewise, the EPA’s argument that the
reference to the Part D NSR program in
subparagraph C of § 110 [110(a)(2)(C)] would
be surplusage if it were among the control
measures mentioned in subparagraph A of
§ 110 [110(a)(2)(A)] is reasonable.
The Court then deferred to EPA’s
determination that the phrase did not
include nonattainment major NSR, and
thus that major NSR provisions need not
be retained in contingency plans. Thus,
although major NSR, when triggered,
results in the requirement to impose
LAER and the requirement to obtain
offsetting emissions, neither of these
requirements are considered a ‘‘measure
with respect to the control’’ of the
relevant NAAQS pollutant within the
meaning of Section 175A. That is, it is
not relevant for determining which
former nonattainment SIP provisions
States must include in contingency
provisions. We believe this decision
supports our determination that a 1hour major NSR program is not a
‘‘control’’ measure within the meaning
of Section 172(e). Accordingly, we find
that the Act does not mandate that
States retain the program under the
antibacksliding approach implemented
in transitioning from the 1-hour to the
8-hour standard.
4 Section 175A requires that when an area is
redesignated from nonattainment to attainment, it
must submit a plan to provide for maintenance of
the Standard. The plan must include contingency
provisions that, in the event of a violation of the
Standard, would require the State to implement
‘‘measures with respect to the control’’ of the
Standard pollutant that were in the SIP prior to
redesignation.
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Petitioners cite EPA’s past
characterization of major NSR in a
Supreme Court brief and a Federal
Register notice as a ‘‘pollution-control
measure’’ and ‘‘pollution control
technology program.’’ Pet. at 5 (June 29,
2004) (quoting EPA Opening Merits
Brief in Chevron, U.S.A. v. NRDC, S.Ct.
82–1005 (Aug. 31, 1983), 1982 Lexis
U.S. Briefs 1005, at n.5; accord, 67 FR
80187 (Dec. 31 2002)). These citations
are somewhat misleading, however,
because petitioners isolate single
phrases and ignore the broader context
in which we wrote the words. The
Supreme Court brief addresses whether
EPA reasonably used a plantwide
definition of ‘‘source’’ in the NSR
program, and the quoted phrase occurs
in the context of comparing the NSR
and New Source Performance Standards
(NSPS) programs. See Chevron U.S.A.,
Inc. v. NRDC, 1982 LEXIS Briefs 1005 at
n.55 (Aug. 31, 1983). The Federal
Register notice provision cited by
Petitioners makes the statement in a
background section generally describing
the NSR program as a combination of an
air quality planning and control
technology program. In that same
paragraph of the notice, we also stated
that one of the program’s purposes is
‘‘* * * to maximize opportunities for
economic development consistent with
the preservation of clean air resources.’’
Moreover, this alleged characterization
has no persuasive value in interpreting
the meaning of ‘‘controls’’ in Section
172(e) nor the appropriateness of
interpreting the Act as a whole with
respect to backsliding because the cited
brief and Federal Register notice do not
address this issue, nor even touch on
the subject of antibacksliding generally.
Petitioners also reference a 1990
House Report describing the Subpart 2
classification system as a ‘‘graduated
control program’’. Pet. at 7. That Report
states:
Also included in the graduated control
requirements are increasing offset ratios that
require a greater level of pollution reductions
from other sources in the nonattainment area
to offset increases in pollution from new
sources or modifications. This program is
intended to allow economic growth and the
development of new pollution sources and
modifications to continue in seriously
polluted areas, while assuring that emissions
are actually reduced. H.R. Comm. on Energy
and Commerce, The Clean Air Act
Amendments of 1990—Hearings of H.R.
3030—101st Cong. 234 (May 17, 1990)
Read out of context, this legislative
history could be interpreted to imply
that Congress intended the higher offset
requirements in subpart 2 to act as
‘‘controls.’’ However, this language must
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be read in context of the statutory
framework.
First, unlike control measures for
which emissions reductions can be
quantified and relied on in a modeling
demonstration to show how the measure
helps an area reach attainment, the
benefits of offsets are uncertain. This is
because States generally do not know in
advance when and if any major
stationary source will become subject to
the major NSR offsetting requirements.
Accordingly, as discussed further
below, States do not use the higher
offset ratios as a SIP control strategy
within their attainment plans. But even
if a State could project the number of
sources that would trigger the offset
requirement, the State, still could not
necessarily rely on the higher emissions
offset ratios to reduce emissions in the
area. This is because, in Section
173(c)(1), Congress allows a major
stationary source to obtain offsets from
other nonattainment areas. Such an area
may be located in another State. In this
context, offsets serve as a valuable tool
in reducing regional pollutant transport,
but may achieve no actual reductions in
the area where the new emissions are
locating. Accordingly, it would be
inappropriate for a State to expressly
rely on offsets as a State-imposed
regulatory measure or ‘‘control’’ to
achieve a defined quantity of emissions
reductions from sources within the State
for the purpose of reducing the existing
emissions inventory. Based on this
information, and because the legislative
history does not address the issue of
Congress’s intent in using the term
‘‘controls’’ in Section 172(e), or the
subject of antibacksliding generally, we
conclude that it lacks persuasive value
in interpreting the term ‘‘controls’’ in
Section 172(e) or elsewhere in the Act.
Petitioners further claim that CAA
Sections 173(d) and 173(a)(5), referring
to lowest achievable emission reduction
(LAER) requirements as a control
technology and control technique,
indicate NSR is a control measure. As
we discuss in this proposed rule, the
statute, our regulations, and our
guidance have established NSR as a
growth measure for SIP planning
purposes. LAER is not a control
measure, but instead is an emission
limitation based on application of a
particular control technology. Control
measures such as reasonably available
control technology (RACT),
transportation control measures (TCM),
and inspection and maintenance
programs (I/M) reduce base year
emissions to assure RFP and meet
attainment. The LAER’s purpose is to
minimize the amount of emissions
increase resulting from new or modified
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17023
major stationary sources, not reduce
emissions below the base year
inventory. CAA Sections 173(d) and
173(a)(5) instead contain specific
requirements related to LAER. CAA
Section 173(d) requires States to report
information on LAER to the RACT/
BACT/LAER Clearinghouse.5 CAA
Section 173(a)(5) requires consideration
of LAER in the alternative sites analysis.
While petitioners present a possible
interpretation of the term ‘‘controls’’ as
used by Congress in Section 172(e), we
do not believe that the Statute compels
this interpretation. Moreover, to accept
the Petitioners’ interpretation would
essentially define ‘‘controls’’ in a way
that would require States to retain all
requirements in a SIP upon relaxation of
the standard. If Congress meant to
require States to retain all requirements,
Congress would have stated so
expressly. Instead, by using only the
term ‘‘controls,’’ Congress implied an
intent that some requirements under the
old standard would no longer apply
under the new standard. We think it is
reasonable to interpret the term
‘‘controls’’ to exclude major NSR, whose
purpose is to ensure that emissions
growth does not interfere with
attainment, and for which States can not
reliably estimate the benefits of
mitigating emissions increases for SIP
planning purposes.
C. No State’s Removal of 1-Hour Major
NSR Requirements From the SIP Will
Interfere With Any Applicable
Requirement Under the Act Within the
Meaning of Section 110(l)
Section 110(l) provides us the legal
authority to approve revisions to SIPs
when we determine that such revisions
will not ‘‘interfere with any applicable
requirement concerning attainment and
reasonable further progress (as defined
in section 171), or any other applicable
requirement of the Act.’’ Petitioners
suggest that Section 110(l) limits the
Administrator’s ability to approve any
change in a State SIP if that change
would relax requirements previously
contained in the SIP. We disagree.
Rather, we interpret Section 110(l) to
allow such changes if the revision is
consistent with reasonable further
progress, and will not interfere either
with the area’s ability to achieve
attainment or with any other
requirement of the Act.
5 In framing 173(d), Congress did not identify
LAER as a control obligation. Instead, Congress
clearly stated the purpose of including 173(d) was
to make sure that the LAER control technology
information is widely available. See The Clean Air
Act Amendments of 1990–Hearings of H.R. 3030,
101st Cong. at 226.
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To determine whether a change in
major NSR requirements could satisfy
these criteria, we first reviewed the
statutory role of major NSR. As
discussed above, Congress designed the
major NSR program to mitigate emission
increases from economic growth—not as
a program to generate emissions
reductions to bring an area into
attainment. Congress distinguished
those ‘‘reasonably available control
measures’’ required to bring an area into
attainment ‘‘as expeditiously as
practicable’’ as specified in Section
172(c)(1) from the requirements of the
major NSR program specified in Section
172(c)(4) and (5). Moreover, Congress
recognized in allowing for growth in
nonattainment areas, that some
worsening of air quality may be
inevitable. Accordingly, States do not
rely on major NSR to achieve emissions
reductions and reach attainment as
expeditiously as practicable and thus a
change in the program will not interfere
with any applicable requirement
concerning attainment and reasonable
further progress.
We also reviewed the role major NSR
plays in State attainment planning.
While we disagree with Petitioners’
assertion that the Section 110(l) analysis
requires us to analyze changes relative
to the 1-hour standard (after we revoke
that standard), and we are not granting
reconsideration on that issue, we
nonetheless looked at the effect of
removing the major NSR requirements
on the State’s existing 1-hour attainment
plans to determine what effect it may
have for future planning under the 8hour standard.
Before 1990, Congress provided States
with two options for managing the
impact of economic growth on
emissions. A State could either provide
a case-by-case review of each new or
modified major source and require such
source to obtain offsetting emissions, or
the State could implement a waiver
provision which allowed the State to
develop an alternative to the case-bycase emissions offset requirement. This
alternative program became known as
the ‘‘growth allowance’’ approach. In
1990, Congress invalidated some of the
existing growth allowances and shifted
the emphasis for managing growth from
using growth allowances to using the
case-by-case offset approach.
Nonetheless, we still interpreted the
inventory and SIP demonstration
requirements in the Act to require States
to continue to account for future growth
in their demonstrations. See 57 FR
13554, 13567. In this way, State SIPs
analyze the impact of growth on
emissions in two overlapping ways: (1)
By establishing a growth projection in
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the attainment demonstration, and (2)
by requiring major sources to comply
with the major NSR requirements.
In general, States use information
from the Bureau of Economic Analysis
(BEA) to derive growth factors which
are then applied to different industrial
categories to project emissions growth
within the nonattainment area. Some
States project growth based on industry
data that is specific to their jurisdiction,
rather than using national BEA data to
project the source category increases. A
few States project growth based on NOX
emissions caps imposed by SIPapproved regulations (e.g. NOX-SIP
call). Finally, a few States project no
point source growth based on SIPapproved rules that limit VOC and NOX
emissions in the area. Regardless of
which process is used, each State
arrives at a specific tonnage of
emissions that represents the expected
increase in emissions due to economic
growth in the State. This growth
projection represents increases in
emissions that come from a variety of
different activities such as major and
minor modifications and increases in
utilization at existing sources. The SIPs
then provide sufficient emissions
reductions to bring the areas into
attainment and provide reasonable
further progress even accounting for this
projected growth.
The next critical question in
determining what effect a change in the
major NSR requirements might have is
whether States adjust this growth
projection based on applicability of the
major NSR program. A survey of current
nonattainment areas shows that in
general States do not discount the
growth projection based on an
assumption of the quantity of emissions
increases that may be ‘‘offset.’’ In fact,
we discourage States from including
offsets as a source of emissions
reductions in the attainment model
because of the difficulties in accurately
predicting the number of sources that
will trigger offset reductions and the
number of offsets actually achieved.
Moreover, the method used to derive the
growth projection allows no
consideration of the major stationary
source thresholds that apply under the
1-hour ozone classification. Finally, we
are aware of only one district in
California that discounts the growth
projection assuming a LAER level of
control in projecting emissions.
However, this particular district also has
a very stringent SIP-approved
nonattainment major NSR rule in which
LAER applies to all sources with
potential to emit (PTE) greater than 1 lb/
day and offsets are required for all
sources with PTE greater than 4 tpy
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VOC or NOX. A lower classification
under the 8-hour standard than under
the 1-hour standard thus would not
change the number of sources in this
district subject to LAER or offsets.
Therefore, this district similarly did not
rely on the major stationary source
thresholds or the offset ratios that
applied under the 1-hour classification
as opposed to those that would apply
under the 8-hour standard to assure RFP
or attainment of the 1-hour standard.6
Once a State computes the growth
projection, these emissions are added to
the base year emissions inventory and
used to project growth for rate of
progress plan purposes, and to project
growth through the attainment year in
the attainment demonstration model. In
the attainment demonstration model,
States must demonstrate that other
emissions reduction programs in the SIP
will allow the area to reduce emissions
over time to achieve attainment by the
attainment date despite the economic
growth. Furthermore, the State must
also demonstrate that the phasing in of
emission reductions over time is
sufficient to achieve reasonable further
progress toward attainment. This
effectively means that whether or not
major NSR applies to a given activity
that increases emissions, the area is
projected to reach attainment based on
other control measures in the SIP.
This information shows that States
have not directly relied on the major
NSR program as a control measure to
achieve reductions and move the area
toward attainment. For the 8-hour
standard, States will generally account
for growth in the same manner to show
attainment of the 8-hour standard. The
only change may be that some States
rely on EPA’s Economic Growth
Analysis System rather than BEA
information, but these two systems are
fundamentally similar in that they rely
on economic forecasts to project growth
in emissions. Accordingly, EPA
concludes that the removal of 1-hour
major NSR requirements from the SIP
will not interfere with reasonable
further progress or attainment in any
area because all States’ attainment
demonstrations will account for
emissions increases related to growth
within the attainment demonstration,
and these projections will not differ
based upon the major NSR program
6 We are referring to South Coast Air Quality
Management District. There are several other State
and local agencies, including some in California, in
which the classification under the 8-hour standard
is lower than that under the 1-hour standard. We
are not aware of any of these agencies relying on
the major stationary source thresholds or the offset
ratios under the 1-hour classification to assure RFP
or attain the 1-hour standard.
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applicable to the area under its ozone
classification.
Petitioners argue that if this logic is
accepted, ‘‘a state could pluck out any
other requirement (including
requirements such as enhanced I/M or
stage II) * * * and argue that the
requirement is dispensable in light of
the area’s attainment and RFP plans.’’
Pet. at 12. We disagree that our logic as
described here would lead to the same
conclusion for all programs, because
States rely on these other programs to
generate emissions reductions in the
modeling demonstration. Nonetheless,
we agree with Petitioners that Congress
‘‘prescribed specific program elements
like NSR’’ and each State must show
how these statutory requirements are
being met through their SIP programs.
Id.
States satisfy this requirement by
having the authority to issue permits in
8-hour nonattainment areas consistent
with the requirements of major NSR for
the 8-hour standard. Major NSR plays a
role in assuring that growth from major
stationary sources occurs consistent
with States’ plans for meeting
reasonable further progress and reaching
attainment. In 1990, Congress
recognized that some States were not
accurately predicting the growth within
their attainment demonstrations.
Accordingly, in Subpart 2 of the Act,
Congress specified that areas with more
severe ozone nonattainment problems
should implement higher offset ratios
and lower major stationary source
thresholds. Likewise, we followed the
same approach for the 8-hour standard
by basing the major NSR requirements
on the severity of the area’s 8-hour
ozone nonattainment problem. As a
policy matter, we believe that it is
appropriate to look at areas’ present day
air quality in determining what major
NSR program requirements are
necessary to assure future air quality
improvements, because an area’s ability
to accommodate economic growth is
related to its current air quality
conditions. An area’s classification
under the 8-hour standard is a more
accurate reflection of current day air
quality then the classification we
assigned under a different standard as
far back as the early 1990’s.
Together, the growth projection
methods used in preparing attainment
demonstrations and the 8-hour major
NSR program requirements provide
overlapping assurance that removing the
1-hour major NSR program from the SIP,
will not ‘‘interfere with any applicable
requirement concerning attainment and
reasonable further progress (as defined
in section 171), or any other applicable
requirement of the Act.’’
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D. Request for Comment
For the reasons discussed in this
section, we continue to assert that at the
time we revoke the 1-hour standard, a
State is no longer required to retain a
nonattainment major NSR program in its
SIP based on the requirements that
applied by virtue of the area’s previous
classification under the 1-hour standard.
Instead, States must have authority to
issue major NSR permits consistent with
the requirements that are associated
with the area’s designation and
classification under the 8-hour standard.
For the reasons discussed in this
section, we also continue to assert,
based on section 110(l) of the Act, that
removing the 1-hour nonattainment
major NSR program will not interfere
with any State’s ability to achieve
attainment of the 8-hour standard and
will be consistent with RFP.
We request comment on our
determination that the Act does not
require States to apply major NSR
requirements under the 8-hour standard
based on an area’s higher classification
under the 1-hour standard after we
revoke the 1-hour standard, and on our
interpretation that the term ‘‘control’’ as
used in Section 172(e) of the Act does
not include major NSR requirements.
We also request comment on our
conclusion that a State’s removal of 1hour major NSR programs from its SIP
will not interfere with any applicable
requirements of the Act including
attainment and RFP. We specifically
request comment on our discussion
regarding State and local agency
emission projections used for RFP and
attainment, including whether the
statements we have made regarding
those emission projections are accurate.
We also request specific information on
any instance in which a State or local
agency relied on major NSR as a control
measure to reduce overall base year
emissions in a rate of progress plan or
attainment demonstration.
V. Statutory and Executive Order
Reviews
On April 30, 2004, we took final
action on key elements of the program
to implement the 8-hour NAAQS,
including applicability of the
nonattainment major NSR programs
under the 8-hour ozone NAAQS. In that
action, we did not revise the
nonattainment major NSR regulations.
With today’s action we are also
proposing no changes to the
nonattainment major NSR rules.
However, we are seeking additional
comments on some of the provisions
finalized in the April 2004 Federal
Register notice (69 FR 23951).
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17025
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.
Pursuant to the terms of Executive
Order 12866, it has been determined
that this proposed rule is not a
‘‘significant regulatory action.’’ Today’s
reconsideration notice proposes to
retain the position we adopted in the
final Phase I rule.
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. This rule
interprets the requirements to develop
State or tribal implementation plans to
satisfy the statutory requirements for
major NSR. We are not imposing any
new paperwork requirements. However,
OMB previously approved the
information collection requirements
contained in the existing regulations (40
CFR parts 51 and 52) under the
provisions of the Paperwork Reduction
Act. A copy of the OMB approved
Information Collection Request (ICR)
may be obtained from Susan Auby,
Collection Strategies Division, U.S.
Environmental Protection Agency
(2822T), 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, or by calling
(202) 566–1672. Please refer to OMB
control number 2060–0003, EPA ICR
number 1230.17 when making your
request.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
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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 (RFA), as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agency
to prepare a regulatory flexibility
analysis of any rule subject to notice
and comment rulemaking requirements
under the Administrative 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 that is a small industrial
entity as defined in the U.S. Small
Business Administration (SBA) size
standards (See 13 CFR 121.201); (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; or (3) a
small organization that is any not-forprofit enterprise that 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. This proposed rule will not
impose any requirements on small
entities. The Phase 1 Rule addressed key
elements of the program to implement
the 8-hour ozone NAAQS, including the
obligations under the major NSR
program. This reconsideration notice
addresses the statutory obligations for
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States and Tribes to implement the
major NSR program for the 8-hour ozone
NAAQS. For the same reasons that we
concluded that the Phase 1 Rule will not
have a significant economic impact on
a substantial number of small entities,
we conclude that our further action on
aspects of that rule also not have a
significant impact on small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Pub. L.
104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘Federal mandates’’ that may
result in expenditures to State, local,
and tribal governments, in the aggregate,
or to the private sector, of $100 million
or more in any 1 year. Before
promulgating an EPA 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 as to 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.
In promulgating the Phase 1 Rule we
determined that this proposed rule does
not contain a Federal mandate that may
result in expenditures of $100 million or
more for State, local, and Tribal
governments, in the aggregate, or the
private sector in any 1 year. Therefore,
we concluded that the Phase 1 Rule is
not subject to the requirements of
sections 202 and 205 of the UMRA. For
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Fmt 4702
Sfmt 4702
the same reasons stated when we
promulgated the Phase I Rule, we
conclude that the issues addressed in
this notice on reconsideration of an
aspect of that rule is not subject to the
UMRA.
EPA also determined that this rule
contains no regulatory requirements that
might significantly or uniquely affect
small governments, including tribal
governments.
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. This rule
specifies the statutory obligations of
States and Tribes in implementing the
major NSR program in 8-hour ozone
nonattainment areas. The Act
establishes the scheme whereby States
take the lead in developing plans for
EPA to approve into the state plan for
implementing the major NSR program.
This rule would not modify the
relationship of the States and EPA for
purposes of developing programs to
implement major NSR. Thus, Executive
Order 13132 does not apply to this rule.
Nonetheless, 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
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regulatory policies that have tribal
implications.’’ This proposed rule does
not have ‘‘tribal implications,’’ as
specified in Executive Order 13175. The
purpose of this proposed rule is to seek
comment on EPA’s reconsideration of
an aspect of the Phase 1 8-hour ozone
rule specifying the statutory obligations
of States and Tribes in implementing
the major NSR program in 8-hour ozone
nonattainment areas. The tribal
authority rule (TAR) gives Tribes the
opportunity to develop and implement
Act programs such as the major NSR
program, but it leaves to the discretion
of the Tribe whether to develop these
programs and which programs, or
appropriate elements of a program, they
will adopt. For the same reasons that we
stated in the Phase 1 Rule, we conclude
that this proposed rule does not have
Tribal implications as defined by
Executive Order 13175. To date, no
Tribe has chosen to implement a major
NSR program. Moreover, this rule does
not affect the relationship or
distribution of power and
responsibilities between the Federal
government and Indian Tribes. Thus,
Executive Order 13175 does not apply
to this rule.
G. Executive Order 13045—Protection of
Children From Environmental Health
Risks 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
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 relates to
reconsideration of one aspect of the
Phase 1 Rule to implement the 8-hour
ozone NAAQS. For the same reasons
stated with respect to the Phase 1 Rule,
we do not believe the Rule, or this
reconsideration notice, is subject to
Executive Order 13045. The Phase 1
Rule implements a previously
promulgated health based Federal
standard, the 8-hour ozone NAAQS.
Nonetheless, we have evaluated the
environmental health or safety effects of
the 8-hour ozone NAAQS on children.
The results of this evaluation are
contained in 40 CFR Part 50, National
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15:01 Apr 01, 2005
Jkt 205001
Ambient Air Quality Standards for
Ozone, Final Rule (62 FR 38855–38896;
specifically, 62 FR 38855, 62 FR 38860
and 62 FR 38865).
H. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not a ‘‘significant energy
action’’ as defined in Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)) because it is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
Information on the methodology and
data regarding the assessment of
potential energy impacts in
implementing programs under the 8hour ozone NAAQS is found in Chapter
6 of U.S. EPA 2003, Cost, Emission
Reduction, Energy, and Economic
Impact Assessment of the Proposed Rule
Establishing the Implementation
Framework for the 8-hour, 0.08 ppm
Ozone National Ambient Air Quality
Standard, prepared by the Innovative
Strategies and Economics Group, Office
of Air Quality Planning and Standards,
Research Triangle Park, N.C. April 24,
2003.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub. L. 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 (for example,
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.
Today’s proposed rule 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
Executive Order 12898 requires that
each Federal agency make achieving
environmental justice part of its mission
by identifying and addressing, as
appropriate, disproportionate high and
PO 00000
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Fmt 4702
Sfmt 4702
17027
adverse human health or environmental
effects of its programs, policies, and
activities on minorities and low-income
populations.
The EPA concluded that the Phase 1
Rule should not raise any
environmental justice issues; for the
same reasons, the issues raised in this
reconsideration notice should not raise
any environmental justice issues. The
health and environmental risks
associated with ozone were considered
in the establishment of the 8-hour, 0.08
ppm ozone NAAQS. The level is
designed to be protective with an
adequate margin of safety. The proposed
rule provides a framework for
improving environmental quality and
reducing health risks for areas that may
be designated nonattainment.
VI. Statutory Authority
The statutory authority for this action
is provided by sections 307(d)(7)(B),
101, 111, 114, 116, and 301 of the Act
as amended (42 U.S.C. 7401, 7411, 7414,
7416, and 7601). This notice is also
subject to section 307(d) of the Act (42
U.S.C. 7407(d)).
List of Subjects in 40 CFR Part 51
Environmental protection,
Administrative practice and procedure,
Air pollution control, Nitrogen oxides,
Ozone, Volatile organic compounds.
Dated: March 25, 2005.
Jeffrey Holmstead,
Assistant Administrator for Office of Air and
Radiation.
[FR Doc. 05–6630 Filed 4–1–05; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[R03–OAR–2005–PA–0002; FRL–7894–6]
Approval and Promulgation of Air
Quality Implementation Plans;
Pennsylvania; VOC and NOX RACT
Determinations for Three Individual
Sources
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA proposes to approve the
State Implementation Plan (SIP)
revision submitted by the
Commonwealth of Pennsylvania for the
purpose of establishing and requiring
reasonably available control technology
(RACT) for three major sources of
volatile organic compounds (VOC) and
nitrogen oxides (NOX). In the Final
Rules section of this Federal Register,
E:\FR\FM\04APP1.SGM
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Agencies
[Federal Register Volume 70, Number 63 (Monday, April 4, 2005)]
[Proposed Rules]
[Pages 17018-17027]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6630]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[E-Docket ID No. OAR-2003-0079, FRL-7895-3]
RIN 2060-AJ99
Nonattainment Major New Source Review Implementation Under 8-Hour
Ozone National Ambient Air Quality Standard: Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: The EPA is requesting comment on issues raised in a petition
for reconsideration of EPA's rule to implement the 8-hour ozone
national ambient air quality standard (NAAQS or 8-hour standard). On
April 30, 2004, EPA took final action on key elements of the program to
implement the 8-hour standard. In that final action, we (the EPA)
addressed certain implementation issues related to the 8-hour standard,
including aspects of implementation of the nonattainment major New
Source Review (NSR) program mandated by part D of title I of the Act
(CAA or Act).
Following this action, on June 29, 2004 and September 24, 2004,
three different parties each filed a petition for reconsideration
concerning implementation of the 8-hour standard, including both major
NSR and other issues. By letter dated September 23, 2004, EPA granted
reconsideration of three issues raised in the petition for
reconsideration filed by Earthjustice on behalf of several
environmental organizations. On February 3, 2005, we published a
proposed rule providing additional information and soliciting comment
on two of the issues on which we granted reconsideration. Today, we
provide additional information and seek comment on the third issue,
which relates to two aspects of the major NSR provisions in the April
30, 2004 final rules. Specifically, we request comment on whether we
should interpret the Act to require areas to retain major NSR
requirements that apply to certain 1-hour ozone nonattainment areas in
implementing the 8-hour standard, and whether EPA properly concludes
that a State's request to remove 1-hour major NSR programs from its
State Implementation Plan (SIP) will not interfere with any applicable
requirement within the meaning of Section 110(l) of the Act.
DATES: Comments. Comments must be received on or before May 4, 2005.
Public Hearing. The public hearing will convene at 9 a.m. and will
end at 5 p.m. on April 18, 2005. All individuals who have registered to
speak before the date of the public hearing will be given an
opportunity to speak. Because of the need to resolve the issues raised
in this in a timely manner, EPA will not grant requests for extension
of the public comment period. For additional information on the public
hearing and requesting to speak, see the SUPPLEMENTARY INFORMATION
section of this proposed rule.
ADDRESSES: Comments. Submit your comments, identified by Docket ID No.
OAR-2003-0079, by one of the following methods to the docket. If
possible, also send a copy of your comments to Ms. Lynn Hutchinson by
either mail or e-mail as identified in the FOR FURTHER INFORMATION
CONTACT section.
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Agency Web site: https://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.
3. E-mail: A-and-R-Docket@EPA.gov. Attention E-Docket No. OAR-2003-
0079.
4. Fax: The fax number of the Air Docket is (202) 566-1741.
Attention E-Docket No. OAR-2003-0079.
5. Mail: Air Docket, Environmental Protection Agency, Attention E-
Docket No. OAR-2003-0079, Mailcode: 6102T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. In addition, please mail a copy of your comments
on the information collection provisions to the Office of Information
and Regulatory Affairs, Office of Management and Budget (OMB), Attn:
Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503.
6. Hand Delivery: Air Docket, Attention E-Docket No. OAR-2003-0079,
Room B-102, Environmental Protection Agency West, 1301 Constitution
Avenue, NW., Washington, DC 20460. 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-2003-0079.
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
[[Page 17019]]
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 https://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 and Radiation Docket, EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. This docket facility is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The Air and Radiation Docket telephone number is (202) 566-
1742. 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 (non-NSR notice says 566-
1741).
FOR FURTHER INFORMATION CONTACT: Ms. Lynn Hutchinson, Office of Air
Quality Planning and Standards, (C339-03), U.S. EPA, Research Triangle
Park, North Carolina 27711, telephone number (919) 541-5795, fax number
(919) 541-5509, e-mail: hutchinson.lynn@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected by the subject rule for today's
action include sources in all industry groups. The majority of sources
potentially affected are expected to be in the following groups.
------------------------------------------------------------------------
Industry group SIC \a\ NAICS \b\
------------------------------------------------------------------------
Electric Services................ 491 221111, 221112, 221113,
221119, 221121, 221122
Petroleum Refining............... 291 324110
Industrial Inorganic Chemicals... 281 325181, 325120, 325131,
325182, 211112, 325998,
331311, 325188
Industrial Organic Chemicals..... 286 325110, 325132, 325192,
325188, 325193, 325120,
325199
Miscellaneous Chemical Products.. 289 325520, 325920, 325910,
325182, 325510
Natural Gas Liquids.............. 132 211112
Natural Gas Transport............ 492 486210, 221210
Pulp and Paper Mills............. 261 322110, 322121, 322122,
322130
Paper Mills...................... 262 322121, 322122
Automobile Manufacturing......... 371 336111, 336112, 336211,
336992, 336322, 336312,
336330, 336340, 336350,
336399, 336212, 336213
Pharmaceuticals.................. 283 325411, 325412, 325413,
325414
------------------------------------------------------------------------
\a\ Standard Industrial Classification.
\b\ North American Industry Classification System.
Entities potentially affected by the subject rule for today's
action also include State, local, and Tribal governments that are
delegated authority to implement these regulations.
B. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments.
Explain your views as clearly as possible.
Describe any assumptions that you used.
Provide any technical information and/or data you used
that support your views.
If you estimate potential burden or costs, explain how you
arrived at your estimate.
Provide specific examples to illustrate your concerns.
Offer alternatives.
Make sure to submit your comments by the comment period
deadline identified.
To ensure proper receipt by EPA, identify the appropriate
docket identification number in the subject line on the first page of
your response. It would also be helpful if you provided the name, date,
and Federal Register citation related to your comments.
C. Where Can I Get a Copy of This Document and Other Related
Information?
In addition to being available in the docket, an electronic copy of
today's notice is also available on the World Wide Web. Following
signature by the EPA Administrator, a copy of today's notice will be
posted in the regulations and standards section of the New Source
Review home page located at https://www.epa.gov/nsr.
D. What Information Should I Know About the Public Hearing?
The public hearing will be held at the EPA's facility at 109 TW
Alexander Drive, Research Triangle Park, NC, or at an alternate
facility nearby. Please check our Web site at https://www.epa.gov/nsr/ for information and updates concerning the public hearing.
The public hearing will provide interested parties the opportunity
to present data, views, or arguments concerning the issues raised in
this notice. People interested in attending or presenting oral
testimony are encouraged to register in advance by contacting Ms.
Chandra Kennedy, OAQPS, Integrated Implementation Group, Information
Transfer and Program Integration Division (C339-03), U.S. Environmental
Protection Agency, Research Triangle Park, NC 27711; telephone number
(919) 541-5319 or e-
[[Page 17020]]
mail kennedy.chandra@epa.gov no later than April 14, 2005.
Presentations will be limited to 5 minutes each. We will assign
speaking times to speakers who make a timely request to speak at the
hearing. We will notify speakers of their assigned times by April 18,
2005. We will attempt to accommodate all other people who wish to
speak, as time allows.
The EPA's planned seating arrangement for the hearing is theater
style, with seating available on a first come first served basis for
about 250 people. Attendees should note that the use of pickets or
other signs will not be allowed on either government or hotel property.
As of the date of this announcement, the Agency intends to proceed
with the hearing as announced; however, unforeseen circumstances may
result in a postponement. Therefore, we advise members of the public
who plan to attend the hearing to contact Ms. Chandra Kennedy at the
above referenced address to confirm the location and date of the
hearing. You may also check our New Source Review Web site at https://
www.epa.gov/nsr for any changes in the date or location.
The record for this action will remain open until May 19, 2005, to
accommodate submittal of information related to the public hearing.
E. How Is This Notice Organized?
The information presented in this notice is organized as follows:
I. General Information
A. Does This Action Apply To Me?
B. What Should I Consider as I Prepare My Comments for EPA?
C. Where Can I Get a Copy of This Document and Other Related
Information?
D. What Information Should I Know About the Public Hearing?
E. How Is This Notice Organized?
II. Background
III. Today's Action on Reconsideration
A. Reconsideration Petitions
B. Schedule for Reconsideration and Status of Final Rules
IV. Rational and Legal Basis
A. Overview
B. The Clean Air Act Does Not Compel EPA To Retain 1-Hour Major
NSR Requirements in Implementing the 8-Hour Standard Because Major
NSR Is Not a ``Control''.
C. No State's Removal of 1-Hour Major NSR Requirements From the
SIP Will Interfere With Any Applicable Requirement Under the Act
Within the Meaning of Section 110(l)
D. Request for Comment
V. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA), as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
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 Risks and Safety Risks
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
VI. Statutory Authority
II. Background
On July 18, 1997, we revised and strengthened the ozone NAAQS to
change from a standard measured over a 1-hour period (1-hour standard)
to a standard measured over an 8-hour period (8-hour standard).
Previously, the 1 hour standard was 0.12 ppm. We established the new 8-
hour standard at 0.08 ppm. See 62 FR 38856. Following revision of the
standard, we promulgated an implementation rule that provided for
implementation of the 8-hour standard under the general nonattainment
area provisions of Subpart 1 of Part D of the Act. See 62 FR 38421.
Subsequently, the Supreme Court ruled that our implementation approach
was unreasonable because we did not provide a role for the generally
more stringent ozone specific provisions of Subpart 2 of Part D of the
Act in implementing the 8-hour standard. See Whitman v. Amer. Trucking
Assoc., 531 U.S. 457, 471-476, 121 S.Ct. 903, 911-914 (2001). The Court
remanded the implementation strategy to EPA to develop a reasonable
approach for implementation. Id. Accordingly, on June 2, 2003 (68 FR
32802), we proposed various options for transitioning from the 1-hour
to the 8-hour standard, and for how the 8-hour standard would be
implemented under both subpart 1 and subpart 2. On August 6, 2003 (68
FR 46536), we published a notice of availability of draft regulatory
text to implement the 8-hour standard. Among other things, this
proposed rule included certain provisions for implementing major NSR.
Specifically, we proposed that major NSR would generally be implemented
in accordance with an area's 8-hour ozone nonattainment classification,
but we would provide an exception for areas that were designated
nonattainment for the 1-hour standard at the time of designation for
the 8-hour standard. If the classification for a 1-hour nonattainment
area is higher than its classification under the 8-hour standard, then
under the proposed rule, the major NSR requirements in effect for the
1-hour standard would have continued to apply under the 8-hour standard
even after we revoked the 1-hour standard. (68 FR 32821).
On April 30, 2004 (69 FR 23951), we promulgated Phase I of the new
implementation rule. In response to comments received on the proposal,
we revised the implementation approach for major NSR under the 8-hour
standard. Specifically, we determined that major NSR would be
implemented in accordance with an area's 8-hour ozone nonattainment
classification. For those areas that we classify moderate and above,
major NSR is implemented under subpart 2. We also indicated that, when
we revoke the 1-hour standard, a State is no longer required to retain
a nonattainment major NSR program in its SIP based on the requirements
that applied by virtue of the area's previous classification under the
1-hour standard. We further indicated that we would approve a request
to remove these requirements from a State's SIP because we determined
based on section 110(l) of the Act that such changes will not interfere
with any applicable requirements of the Act, including a State's
ability to reach attainment of the 8-hour standard or reasonable
further progress (RFP) (69 FR 23985). We noted that States will be
required to implement a major NSR program based on the 8-hour
classifications. We also emphasized that emission limitations and other
requirements in major NSR permits issued under 1-hour major NSR
programs will remain in effect even after we revoke the 1-hour standard
(69 FR 23986).
III. Today's Action on Reconsideration
A. Reconsideration Petitions
Following publication of the April 30, 2004 final rule, the
Administrator received three petitions, pursuant to section
307(d)(7)(B) of the Act, requesting reconsideration of certain aspects
of the final rule.\1\ On June 29,
[[Page 17021]]
2004, Earthjustice submitted one of the three petitions that we
received. This petition seeks reconsideration of certain elements of
the Phase I Ozone Implementation Rule, including elements of the major
NSR provisions. With respect to major NSR, Petitioners contend that the
final rules are unlawful because the rules violate Section 110(l) and
Section 172(e) of the Act by not requiring 8-hour ozone nonattainment
areas to continue to apply major NSR requirements based on the area's
1-hour ozone nonattainment classification. Petitioners also allege that
EPA acted unlawfully by stating that we will approve a State's request
to remove 1-hour requirements from the SIP based on our finding that
such a revision would not violate Section 110(l) for any State.
Petitioners assert that these major NSR provisions and our rationale
for them were added to the final action after the close of the public
comment period. Thus, Petitioners claim, EPA failed to provide notice
and opportunity for public comment concerning these provision as
required under CAA Section 307(d)(5). On September 23, 2004, we granted
reconsideration of three issues raised in the Earthjustice Petition. In
an action dated February 3, 2005, we issued a Federal Register notice
addressing two of those issues: (1) The provision that section 185 fees
would no longer apply for a failure to attain the 1-hour standard once
we revoke the 1-hour standard; and (2) the timing for determining what
is an ``applicable requirement.'' 70 FR 5593.
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\1\ Petitioners are: (1) Earthjustice on behalf of the American
Lung Association, Environmental Defense, Natural Resources Defense
Council, Sierra Club, Clean Air Task Force, Conservation Law
Foundation, and Southern Alliance for Clean Energy; (2) the National
Petrochemical and Refiners Association and the National Association
of Manufacturers; and (3) the American Petroleum Institute, American
Chemistry Council, American Iron and Steel Institute, National
Association of Manufacturers and the U.S. Chamber of Commerce. We
are continuing to review the issues raised in the second and third
of these petitions for reconsideration.
---------------------------------------------------------------------------
Today, we seek comment on the third issue raised in that petition,
which related to elements of the major NSR program. Specifically, we
request comment on: (1) Whether we must interpret the Act to require
States to continue major NSR requirements under the 8-hour standard
based on an area's higher classification under the 1-hour standard; and
(2) whether revising a State SIP to remove 1-hour major NSR
requirements is consistent with Section 110(l) of the Act. As
previously discussed, we proposed an approach concerning whether 1-hour
nonattainment major NSR requirements must remain in the SIP after we
revoke the 1-hour standard. (68 FR at 32821-22.) The public had an
opportunity to comment on the approach we proposed, and in fact some
commenters advocated replacing the 1-hour major NSR program with the 8-
hour program. Nonetheless, we want Petitioners and others to have every
opportunity to comment on our approach and to provide additional
information that they believe to be relevant. For these reasons, we
provide further explanation of our rationale for this action and
request public comment on this approach. We will consider these
comments and then make a final decision regarding the implementation of
the NSR program under the 8-hour standard.
B. Schedule for Reconsideration and Status of Final Rules
We plan to take final action on our grant of reconsideration by the
end of May 2005. A State can only remove 1-hour NSR SIP provisions
after we revoke the 1-hour standard. We plan to revoke the standard on
June 15, 2005. Accordingly, no changes in 1-hour major NSR SIP programs
could occur before June 15, 2005. The final rules concerning
applicability of major NSR under the 8-hour standard remain in effect
as promulgated until our final action on this reconsideration.
IV. Rationale and Legal Basis
A. Overview
It is a basic tenet of administrative law that expert agencies have
discretion to interpret ambiguous statutory terms. Chevron, U.S.A.,
Inc. v. NRDC, 467 U.S. 387 (1984). We exercised this discretion in
determining how to implement subpart 2 requirements for major NSR under
the 8-hour standard, an issue that the Supreme Court has recognized is
``ambiguous.'' \2\
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\2\ See Whitman, 531 U.S. at 484 (``The statute is in our view
ambiguous concerning the manner in which Subpart 1 and Subpart 2
interact with regard to revised ozone standards, and we would defer
to the EPA's reasonable resolution of that ambiguity.'')
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In determining how to implement the provisions of subpart 2 for the
major NSR program under the 8-hour standard, we considered the
statutory requirements, Congressional intent as expressed in the CAA
legislative history, the history of the NSR regulatory program, and our
actions on 1-hour ozone Rate of Progress (ROP) plans and attainment
demonstrations in general as they relate to nonattainment major NSR
programs. We discuss this information below.
Our review of this information, as well as public comments on the
proposed rule, supports our conclusion that once we revoke the 1-hour
standard, the Act does not require States to retain a nonattainment
major NSR program in their SIPs based on the requirements that applied
by virtue of the area's previous classification under the 1-hour
standard. It also supports our conclusion that, based on section 110(l)
of the Act, removing the 1-hour major NSR program does not interfere
with any applicable requirements of the Act, including a State's
ability to reach attainment of the 8-hour standard and RFP.
B. The Clean Air Act Does Not Compel EPA To Retain 1-Hour Major NSR
Requirements in Implementing the 8-Hour Standard Because Major NSR Is
Not a ``Control''
Section 172(e) applies when we relax a NAAQS. It specifies that we
``shall provide for controls which are not less stringent than the
controls applicable to areas designated nonattainment before such
relaxation.'' By its terms, it does not directly apply to requirements
to implement the 8-hour standard, because we strengthened the ozone
NAAQS when we enacted the 8-hour standard. Nonetheless, we view this
provision as an expression of Congressional intent that States may not
remove control measures in areas which are not attaining a NAAQS when
EPA revises that standard to make it more stringent, as is the case
with the 8-hour standard. See 68 FR 32819. Accordingly, we required
States to retain certain requirements associated with the 1-hour ozone
nonattainment classification in implementing the 8-hour standard. See
generally 69 FR 23951.
Notwithstanding the requirement to retain certain 1-hour control
measures, we determined that Section 172(e) and our interpretation of
Congressional intent does not mandate that States retain 1-hour major
NSR requirements under the 8-hour standard, because the major NSR
program does not impose emissions ``controls'' that reduce a
nonattainment area's emissions below that area's baseline year
inventory. In this respect, major NSR is not a ``control'' within the
meaning of Section 172(e). Thus, we concluded that because major NSR
programs based on 1-hour classifications would not contribute emissions
reductions below baseline levels, those provisions are not ``controls''
that need to be preserved in implementing the 8-hour standard.
The term ``controls'' as used in Section 172(e) is ambiguous. In
determining whether the reference to ``controls'' in Section 172(e)
covers 1-hour NSR requirements, and thus whether we should interpret
the Act as requiring such controls to remain effective after revocation
of the 1-hour standard, we looked first to the CAA statutory language
and structure. We reasoned that ``[t]he role of the NSR permitting
program as a growth measure, rather than a control measure, is
evidenced in the structure of the Act,
[[Page 17022]]
which delineates nonattainment NSR and control measures as separate SIP
requirements,'' citing, among other things, Section 110(a)(2)(A) and
110(a)(2)(C). (69 FR at 23986). Similarly, Section 172(c), which
identifies the requirements for nonattainment plans, lists requirements
for implementation of control measures separately from the provision
requiring permits for new and modified major stationary sources.
Compare Sections 172(c)(1) and (c)(6) (referring to control measures)
with Section 172(c)(5) (referring to permits for new and modified major
stationary sources).
Second, to resolve the ambiguity over whether the term ``controls''
in section 172(e) covers 1-hour NSR requirements, we further looked to
Congress' purpose in creating the major NSR program. The 1970 statute
did not contain any provisions concerning permitting of new sources,
either in attainment or nonattainment areas. The statute set 1975 as
the deadline to meet the NAQQS in most regions, with some extensions
until 1977. By the time of the 1977 Amendments, many areas had missed
their attainment deadlines, and it became apparent that, despite
significant progress, SIPs were inadequate to achieve the NAAQS in many
areas of the country.
In 1977 Congress considered whether new source growth could be
allowed in areas not attaining the NAAQS.
A major weakness in implementation of the 1970 Act has been the
failure to assess the impact of emissions from new sources of
pollution on State plans to attain air quality standards by
statutory deadlines. States have permitted growth on the assumption
that a deadline was sufficiently distant so that future emissions
reductions could be made to compensate for the initial increases. It
can now be seen that these assumptions were wrong. Some mechanism is
needed to assure that before new or expanded facilities are
permitted, a State demonstrate that these facilities can be
accommodated within its overall plan to provide for attainment of
air quality standards.
One mechanism is a case-by-case review of each new or modified
major source of pollution that seeks to locate in a region exceeding
an ambient standard. Such a review requires matching reductions from
existing sources against emissions expected from the new source in
order to assure that introduction of the new source will not prevent
attainment of the applicable standard by the statutory deadline.
This is the mechanism adopted by the Committee as a condition for
approval of an implementation plan revision under section 110(a)(3)
and for extensions of the oxidant and carbon monoxide attainment
deadlines beyond 1982. Sen. Rep. 95-127 at 55 (May 10, 1977).
Congress thus recognized the need for a balance between the goals
of attaining air quality standards and providing for new economic
growth. As part of the 1977 Amendments, Congress amended the Act to,
among other things, establish a statutory approach to permit growth in
polluted areas, while requiring attainment of the NAAQS by specific
deadlines.\3\ This approach established the basic SIP process and
requirements for attaining the NAAQS.
---------------------------------------------------------------------------
\3\ Sections 107(d) and 172 of the Act (42 U.S.C. 7407(d) and
7502; Sections 129(a) and (c) of the 1977 Amendments, Pub. L. No.
95-95.
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The major NSR program's purpose ``is to permit States to allow
continued growth or expansion in nonattainment areas, so long as this
growth or expansion is undertaken in a manner consistent with the goals
and objectives of the Clean Air Act.'' See H.R. Rpt. 95-294 at 210 (May
12, 1977). Section 172(a)(2) of the Act requires attainment as
expeditiously as practicable considering the availability and
feasibility of control measures and Section 172(c)(1) and (c)(6)
require implementation of all reasonably available control measures as
expeditiously as practicable to provide for attainment of the NAAQS by
the area's attainment date. Conversely, Section 173(a)(1)(A) requires
only that growth due to proposed sources, when considered together with
the other plan provisions required under Section 172, be sufficient to
ensure RFP toward attainment. Thus, unlike the control measures
required by Section 172(c)(1) and (c)(6), major NSR is not a measure to
reduce emissions to assure attainment; nor did Congress identify the
program as a control measure to help areas achieve attainment ``as
expeditiously as practicable.'' Rather, Congress intended that the
effectiveness of major NSR in minimizing the impact of increased
emissions should be considered together with the State's other SIP
measures to assure, consistent with Section 172(a)(2), that emissions
from new sources will be consistent with RFP. Our interpretation is
supported by the legislative record wherein Congress stated that
In allowing new sources to locate, and existing sources to
expand, in presently unhealthy air areas, the committee realizes
that some worsening of air quality or delay in actual attainment of
the national ambient air standards will result. This is inevitable,
as a result the committee had to accept as a consequence of allowing
additional economic growth in these area. Id. at 214-215.
Accordingly, based on our analysis of the statutory language and
structure, and Congress' purpose in creating the major NSR as a measure
to mitigate emissions growth rather than a measure to reduce existing
emissions levels, we conclude that Congress did not mean to include
major NSR within the ``controls'' that are required to be maintained in
the SIP under our antibacksliding approach and Section 172(e).
We note that recent case law upheld the Agency's approach of
looking to Section 110 to determine the meaning of a similar phrase,
``measures with respect to the control,'' of pollutants in Section 175A
of the Act concerning maintenance plans.\4\ Greenbaum v. U.S. EPA, 370
F.3d 527, 536-37 (7th Cir. 2004). In reviewing EPA's determination that
the phrase did not include nonattainment major NSR, the court found the
phrase ambiguous, and stated:
\4\ Section 175A requires that when an area is redesignated from
nonattainment to attainment, it must submit a plan to provide for
maintenance of the Standard. The plan must include contingency
provisions that, in the event of a violation of the Standard, would
require the State to implement ``measures with respect to the
control'' of the Standard pollutant that were in the SIP prior to
redesignation.
It was entirely permissible, and indeed logical, for the EPA to
look to Sec. 110 to determine the meaning of the word ``measure''
in Sec. 175A as Sec. 110 lists the provisions required to be
included in a nonattainment SIP.
Likewise, the EPA's argument that the reference to the Part D
NSR program in subparagraph C of Sec. 110 [110(a)(2)(C)] would be
surplusage if it were among the control measures mentioned in
subparagraph A of Sec. 110 [110(a)(2)(A)] is reasonable.
The Court then deferred to EPA's determination that the phrase did not
include nonattainment major NSR, and thus that major NSR provisions
need not be retained in contingency plans. Thus, although major NSR,
when triggered, results in the requirement to impose LAER and the
requirement to obtain offsetting emissions, neither of these
requirements are considered a ``measure with respect to the control''
of the relevant NAAQS pollutant within the meaning of Section 175A.
That is, it is not relevant for determining which former nonattainment
SIP provisions States must include in contingency provisions. We
believe this decision supports our determination that a 1-hour major
NSR program is not a ``control'' measure within the meaning of Section
172(e). Accordingly, we find that the Act does not mandate that States
retain the program under the antibacksliding approach implemented in
transitioning from the 1-hour to the 8-hour standard.
[[Page 17023]]
Petitioners cite EPA's past characterization of major NSR in a
Supreme Court brief and a Federal Register notice as a ``pollution-
control measure'' and ``pollution control technology program.'' Pet. at
5 (June 29, 2004) (quoting EPA Opening Merits Brief in Chevron, U.S.A.
v. NRDC, S.Ct. 82-1005 (Aug. 31, 1983), 1982 Lexis U.S. Briefs 1005, at
n.5; accord, 67 FR 80187 (Dec. 31 2002)). These citations are somewhat
misleading, however, because petitioners isolate single phrases and
ignore the broader context in which we wrote the words. The Supreme
Court brief addresses whether EPA reasonably used a plantwide
definition of ``source'' in the NSR program, and the quoted phrase
occurs in the context of comparing the NSR and New Source Performance
Standards (NSPS) programs. See Chevron U.S.A., Inc. v. NRDC, 1982 LEXIS
Briefs 1005 at n.55 (Aug. 31, 1983). The Federal Register notice
provision cited by Petitioners makes the statement in a background
section generally describing the NSR program as a combination of an air
quality planning and control technology program. In that same paragraph
of the notice, we also stated that one of the program's purposes is ``*
* * to maximize opportunities for economic development consistent with
the preservation of clean air resources.'' Moreover, this alleged
characterization has no persuasive value in interpreting the meaning of
``controls'' in Section 172(e) nor the appropriateness of interpreting
the Act as a whole with respect to backsliding because the cited brief
and Federal Register notice do not address this issue, nor even touch
on the subject of antibacksliding generally.
Petitioners also reference a 1990 House Report describing the
Subpart 2 classification system as a ``graduated control program''.
Pet. at 7. That Report states:
Also included in the graduated control requirements are
increasing offset ratios that require a greater level of pollution
reductions from other sources in the nonattainment area to offset
increases in pollution from new sources or modifications. This
program is intended to allow economic growth and the development of
new pollution sources and modifications to continue in seriously
polluted areas, while assuring that emissions are actually reduced.
H.R. Comm. on Energy and Commerce, The Clean Air Act Amendments of
1990--Hearings of H.R. 3030--101st Cong. 234 (May 17, 1990)
Read out of context, this legislative history could be interpreted to
imply that Congress intended the higher offset requirements in subpart
2 to act as ``controls.'' However, this language must be read in
context of the statutory framework.
First, unlike control measures for which emissions reductions can
be quantified and relied on in a modeling demonstration to show how the
measure helps an area reach attainment, the benefits of offsets are
uncertain. This is because States generally do not know in advance when
and if any major stationary source will become subject to the major NSR
offsetting requirements. Accordingly, as discussed further below,
States do not use the higher offset ratios as a SIP control strategy
within their attainment plans. But even if a State could project the
number of sources that would trigger the offset requirement, the State,
still could not necessarily rely on the higher emissions offset ratios
to reduce emissions in the area. This is because, in Section 173(c)(1),
Congress allows a major stationary source to obtain offsets from other
nonattainment areas. Such an area may be located in another State. In
this context, offsets serve as a valuable tool in reducing regional
pollutant transport, but may achieve no actual reductions in the area
where the new emissions are locating. Accordingly, it would be
inappropriate for a State to expressly rely on offsets as a State-
imposed regulatory measure or ``control'' to achieve a defined quantity
of emissions reductions from sources within the State for the purpose
of reducing the existing emissions inventory. Based on this
information, and because the legislative history does not address the
issue of Congress's intent in using the term ``controls'' in Section
172(e), or the subject of antibacksliding generally, we conclude that
it lacks persuasive value in interpreting the term ``controls'' in
Section 172(e) or elsewhere in the Act.
Petitioners further claim that CAA Sections 173(d) and 173(a)(5),
referring to lowest achievable emission reduction (LAER) requirements
as a control technology and control technique, indicate NSR is a
control measure. As we discuss in this proposed rule, the statute, our
regulations, and our guidance have established NSR as a growth measure
for SIP planning purposes. LAER is not a control measure, but instead
is an emission limitation based on application of a particular control
technology. Control measures such as reasonably available control
technology (RACT), transportation control measures (TCM), and
inspection and maintenance programs (I/M) reduce base year emissions to
assure RFP and meet attainment. The LAER's purpose is to minimize the
amount of emissions increase resulting from new or modified major
stationary sources, not reduce emissions below the base year inventory.
CAA Sections 173(d) and 173(a)(5) instead contain specific requirements
related to LAER. CAA Section 173(d) requires States to report
information on LAER to the RACT/BACT/LAER Clearinghouse.\5\ CAA Section
173(a)(5) requires consideration of LAER in the alternative sites
analysis.
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\5\ In framing 173(d), Congress did not identify LAER as a
control obligation. Instead, Congress clearly stated the purpose of
including 173(d) was to make sure that the LAER control technology
information is widely available. See The Clean Air Act Amendments of
1990-Hearings of H.R. 3030, 101st Cong. at 226.
---------------------------------------------------------------------------
While petitioners present a possible interpretation of the term
``controls'' as used by Congress in Section 172(e), we do not believe
that the Statute compels this interpretation. Moreover, to accept the
Petitioners' interpretation would essentially define ``controls'' in a
way that would require States to retain all requirements in a SIP upon
relaxation of the standard. If Congress meant to require States to
retain all requirements, Congress would have stated so expressly.
Instead, by using only the term ``controls,'' Congress implied an
intent that some requirements under the old standard would no longer
apply under the new standard. We think it is reasonable to interpret
the term ``controls'' to exclude major NSR, whose purpose is to ensure
that emissions growth does not interfere with attainment, and for which
States can not reliably estimate the benefits of mitigating emissions
increases for SIP planning purposes.
C. No State's Removal of 1-Hour Major NSR Requirements From the SIP
Will Interfere With Any Applicable Requirement Under the Act Within the
Meaning of Section 110(l)
Section 110(l) provides us the legal authority to approve revisions
to SIPs when we determine that such revisions will not ``interfere with
any applicable requirement concerning attainment and reasonable further
progress (as defined in section 171), or any other applicable
requirement of the Act.'' Petitioners suggest that Section 110(l)
limits the Administrator's ability to approve any change in a State SIP
if that change would relax requirements previously contained in the
SIP. We disagree. Rather, we interpret Section 110(l) to allow such
changes if the revision is consistent with reasonable further progress,
and will not interfere either with the area's ability to achieve
attainment or with any other requirement of the Act.
[[Page 17024]]
To determine whether a change in major NSR requirements could
satisfy these criteria, we first reviewed the statutory role of major
NSR. As discussed above, Congress designed the major NSR program to
mitigate emission increases from economic growth--not as a program to
generate emissions reductions to bring an area into attainment.
Congress distinguished those ``reasonably available control measures''
required to bring an area into attainment ``as expeditiously as
practicable'' as specified in Section 172(c)(1) from the requirements
of the major NSR program specified in Section 172(c)(4) and (5).
Moreover, Congress recognized in allowing for growth in nonattainment
areas, that some worsening of air quality may be inevitable.
Accordingly, States do not rely on major NSR to achieve emissions
reductions and reach attainment as expeditiously as practicable and
thus a change in the program will not interfere with any applicable
requirement concerning attainment and reasonable further progress.
We also reviewed the role major NSR plays in State attainment
planning. While we disagree with Petitioners' assertion that the
Section 110(l) analysis requires us to analyze changes relative to the
1-hour standard (after we revoke that standard), and we are not
granting reconsideration on that issue, we nonetheless looked at the
effect of removing the major NSR requirements on the State's existing
1-hour attainment plans to determine what effect it may have for future
planning under the 8-hour standard.
Before 1990, Congress provided States with two options for managing
the impact of economic growth on emissions. A State could either
provide a case-by-case review of each new or modified major source and
require such source to obtain offsetting emissions, or the State could
implement a waiver provision which allowed the State to develop an
alternative to the case-by-case emissions offset requirement. This
alternative program became known as the ``growth allowance'' approach.
In 1990, Congress invalidated some of the existing growth allowances
and shifted the emphasis for managing growth from using growth
allowances to using the case-by-case offset approach. Nonetheless, we
still interpreted the inventory and SIP demonstration requirements in
the Act to require States to continue to account for future growth in
their demonstrations. See 57 FR 13554, 13567. In this way, State SIPs
analyze the impact of growth on emissions in two overlapping ways: (1)
By establishing a growth projection in the attainment demonstration,
and (2) by requiring major sources to comply with the major NSR
requirements.
In general, States use information from the Bureau of Economic
Analysis (BEA) to derive growth factors which are then applied to
different industrial categories to project emissions growth within the
nonattainment area. Some States project growth based on industry data
that is specific to their jurisdiction, rather than using national BEA
data to project the source category increases. A few States project
growth based on NOX emissions caps imposed by SIP-approved
regulations (e.g. NOX-SIP call). Finally, a few States
project no point source growth based on SIP-approved rules that limit
VOC and NOX emissions in the area. Regardless of which
process is used, each State arrives at a specific tonnage of emissions
that represents the expected increase in emissions due to economic
growth in the State. This growth projection represents increases in
emissions that come from a variety of different activities such as
major and minor modifications and increases in utilization at existing
sources. The SIPs then provide sufficient emissions reductions to bring
the areas into attainment and provide reasonable further progress even
accounting for this projected growth.
The next critical question in determining what effect a change in
the major NSR requirements might have is whether States adjust this
growth projection based on applicability of the major NSR program. A
survey of current nonattainment areas shows that in general States do
not discount the growth projection based on an assumption of the
quantity of emissions increases that may be ``offset.'' In fact, we
discourage States from including offsets as a source of emissions
reductions in the attainment model because of the difficulties in
accurately predicting the number of sources that will trigger offset
reductions and the number of offsets actually achieved. Moreover, the
method used to derive the growth projection allows no consideration of
the major stationary source thresholds that apply under the 1-hour
ozone classification. Finally, we are aware of only one district in
California that discounts the growth projection assuming a LAER level
of control in projecting emissions. However, this particular district
also has a very stringent SIP-approved nonattainment major NSR rule in
which LAER applies to all sources with potential to emit (PTE) greater
than 1 lb/day and offsets are required for all sources with PTE greater
than 4 tpy VOC or NOX. A lower classification under the 8-
hour standard than under the 1-hour standard thus would not change the
number of sources in this district subject to LAER or offsets.
Therefore, this district similarly did not rely on the major stationary
source thresholds or the offset ratios that applied under the 1-hour
classification as opposed to those that would apply under the 8-hour
standard to assure RFP or attainment of the 1-hour standard.\6\
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\6\ We are referring to South Coast Air Quality Management
District. There are several other State and local agencies,
including some in California, in which the classification under the
8-hour standard is lower than that under the 1-hour standard. We are
not aware of any of these agencies relying on the major stationary
source thresholds or the offset ratios under the 1-hour
classification to assure RFP or attain the 1-hour standard.
---------------------------------------------------------------------------
Once a State computes the growth projection, these emissions are
added to the base year emissions inventory and used to project growth
for rate of progress plan purposes, and to project growth through the
attainment year in the attainment demonstration model. In the
attainment demonstration model, States must demonstrate that other
emissions reduction programs in the SIP will allow the area to reduce
emissions over time to achieve attainment by the attainment date
despite the economic growth. Furthermore, the State must also
demonstrate that the phasing in of emission reductions over time is
sufficient to achieve reasonable further progress toward attainment.
This effectively means that whether or not major NSR applies to a given
activity that increases emissions, the area is projected to reach
attainment based on other control measures in the SIP.
This information shows that States have not directly relied on the
major NSR program as a control measure to achieve reductions and move
the area toward attainment. For the 8-hour standard, States will
generally account for growth in the same manner to show attainment of
the 8-hour standard. The only change may be that some States rely on
EPA's Economic Growth Analysis System rather than BEA information, but
these two systems are fundamentally similar in that they rely on
economic forecasts to project growth in emissions. Accordingly, EPA
concludes that the removal of 1-hour major NSR requirements from the
SIP will not interfere with reasonable further progress or attainment
in any area because all States' attainment demonstrations will account
for emissions increases related to growth within the attainment
demonstration, and these projections will not differ based upon the
major NSR program
[[Page 17025]]
applicable to the area under its ozone classification.
Petitioners argue that if this logic is accepted, `` a state could
pluck out any other requirement (including requirements such as
enhanced I/M or stage II) * * * and argue that the requirement is
dispensable in light of the area's attainment and RFP plans.'' Pet. at
12. We disagree that our logic as described here would lead to the same
conclusion for all programs, because States rely on these other
programs to generate emissions reductions in the modeling
demonstration. Nonetheless, we agree with Petitioners that Congress
``prescribed specific program elements like NSR'' and each State must
show how these statutory requirements are being met through their SIP
programs. Id.
States satisfy this requirement by having the authority to issue
permits in 8-hour nonattainment areas consistent with the requirements
of major NSR for the 8-hour standard. Major NSR plays a role in
assuring that growth from major stationary sources occurs consistent
with States' plans for meeting reasonable further progress and reaching
attainment. In 1990, Congress recognized that some States were not
accurately predicting the growth within their attainment
demonstrations. Accordingly, in Subpart 2 of the Act, Congress
specified that areas with more severe ozone nonattainment problems
should implement higher offset ratios and lower major stationary source
thresholds. Likewise, we followed the same approach for the 8-hour
standard by basing the major NSR requirements on the severity of the
area's 8-hour ozone nonattainment problem. As a policy matter, we
believe that it is appropriate to look at areas' present day air
quality in determining what major NSR program requirements are
necessary to assure future air quality improvements, because an area's
ability to accommodate economic growth is related to its current air
quality conditions. An area's classification under the 8-hour standard
is a more accurate reflection of current day air quality then the
classification we assigned under a different standard as far back as
the early 1990's.
Together, the growth projection methods used in preparing
attainment demonstrations and the 8-hour major NSR program requirements
provide overlapping assurance that removing the 1-hour major NSR
program from the SIP, will not ``interfere with any applicable
requirement concerning attainment and reasonable further progress (as
defined in section 171), or any other applicable requirement of the
Act.''
D. Request for Comment
For the reasons discussed in this section, we continue to assert
that at the time we revoke the 1-hour standard, a State is no longer
required to retain a nonattainment major NSR program in its SIP based
on the requirements that applied by virtue of the area's previous
classification under the 1-hour standard. Instead, States must have
authority to issue major NSR permits consistent with the requirements
that are associated with the area's designation and classification
under the 8-hour standard. For the reasons discussed in this section,
we also continue to assert, based on section 110(l) of the Act, that
removing the 1-hour nonattainment major NSR program will not interfere
with any State's ability to achieve attainment of the 8-hour standard
and will be consistent with RFP.
We request comment on our determination that the Act does not
require States to apply major NSR requirements under the 8-hour
standard based on an area's higher classification under the 1-hour
standard after we revoke the 1-hour standard, and on our interpretation
that the term ``control'' as used in Section 172(e) of the Act does not
include major NSR requirements. We also request comment on our
conclusion that a State's removal of 1-hour major NSR programs from its
SIP will not interfere with any applicable requirements of the Act
including attainment and RFP. We specifically request comment on our
discussion regarding State and local agency emission projections used
for RFP and attainment, including whether the statements we have made
regarding those emission projections are accurate. We also request
specific information on any instance in which a State or local agency
relied on major NSR as a control measure to reduce overall base year
emissions in a rate of progress plan or attainment demonstration.
V. Statutory and Executive Order Reviews
On April 30, 2004, we took final action on key elements of the
program to implement the 8-hour NAAQS, including applicability of the
nonattainment major NSR programs under the 8-hour ozone NAAQS. In that
action, we did not revise the nonattainment major NSR regulations. With
today's action we are also proposing no changes to the nonattainment
major NSR rules. However, we are seeking additional comments on some of
the provisions finalized in the April 2004 Federal Register notice (69
FR 23951).
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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this proposed rule is not a ``significant regulatory
action.'' Today's reconsideration notice proposes to retain the
position we adopted in the final Phase I rule.
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.
This rule interprets the requirements to develop State or tribal
implementation plans to satisfy the statutory requirements for major
NSR. We are not imposing any new paperwork requirements. However, OMB
previously approved the information collection requirements contained
in the existing regulations (40 CFR parts 51 and 52) under the
provisions of the Paperwork Reduction Act. A copy of the OMB approved
Information Collection Request (ICR) may be obtained from Susan Auby,
Collection Strategies Division, U.S. Environmental Protection Agency
(2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460, or by
calling (202) 566-1672. Please refer to OMB control number 2060-0003,
EPA ICR number 1230.17 when making your request.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose
[[Page 17026]]
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 (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative 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 that
is a small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (See 13 CFR 121.201); (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; or (3) a small organization that is any not-for-profit
enterprise that 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. This
proposed rule will not impose any requirements on small entities. The
Phase 1 Rule addressed key elements of the program to implement the 8-
hour ozone NAAQS, including the obligations under the major NSR
program. This reconsideration notice addresses the statutory
obligations for States and Tribes to implement the major NSR program
for the 8-hour ozone NAAQS. For the same reasons that we concluded that
the Phase 1 Rule will not have a significant economic impact on a
substantial number of small entities, we conclude that our further
action on aspects of that rule also not have a significant impact on
small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA 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 as to 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.
In promulgating the Phase 1 Rule we determined that this proposed
rule does not contain a Federal mandate that may result in expenditures
of $100 million or more for State, local, and Tribal governments, in
the aggregate, or the private sector in any 1 year. Therefore, we
concluded that the Phase 1 Rule is not subject to the requirements of
sections 202 and 205 of the UMRA. For the same reasons stated when we
promulgated the Phase I Rule, we conclude that the issues addressed in
this notice on reconsideration of an aspect of that rule is not subject
to the UMRA.
EPA also determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments, including tribal governments.
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 governm