Final Rule Making Findings of Failure To Submit Required State Implementation Plans for Phase II of the NOX, 6347-6350 [06-1175]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 26 (Wednesday, February 8, 2006)]
[Rules and Regulations]
[Pages 6347-6350]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1175]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[Docket No. OAR-2005-0154; FRL-8028-8]


Final Rule Making Findings of Failure To Submit Required State 
Implementation Plans for Phase II of the NOX SIP Call

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action making findings, under the 
Clean Air Act (CAA), that Indiana, Illinois, Kentucky, Michigan, and 
Virginia failed to make complete State implementation plan (SIP) 
submittals required under the CAA. Under the CAA and Phase II of EPA's 
nitrogen oxides (NOX) SIP Call regulations, these States 
were required to submit SIP measures providing for reductions in the 
emissions of NOX, an ozone precursor.

DATES: Effective Date: This final rule is effective on March 10, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-OAR-2005-0514. All documents in the docket are listed on the 
https://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., 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

[[Page 6348]]

available either electronically through https://www.regulations.gov or 
in hard copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC. The public reading room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays. 
The telephone number for the public reading room is (202) 566-1744, and 
the Air Docket telephone number is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to Jan King, Office of Air Quality Planning 
and Standards, Air Quality Strategies and Standards Division, C539-02, 
Research Triangle Park, NC 27711; telephone number (919) 541-5665; fax 
number (919) 541-0824; e-mail king.jan@epa.gov. Legal questions should 
be addressed to Winifred Okoye, Office of General Counsel, (2344A), 
1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: 
(202) 564-5446; e-mail okoye.winifred@epa.gov.

SUPPLEMENTARY INFORMATION:

Outline

I. Background
II. What Action Is EPA Taking Today?
III. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedures Act
    B. Executive Order 12866: Regulatory Planning and Review
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    J. National Technology Transfer Advancement Act
    K. Congressional Review Act

I. Background

    On October 27, 1998 (63 FR 57356), we took final action in the 
NOX SIP Call Rule, under sections 110(a)(2)(D) and 110(k)(5) 
of the CAA, to prohibit specified amounts of emissions of one of the 
main precursors of ground-level ozone, NOX, in order to 
reduce ozone transport across State boundaries in the eastern half of 
the United States. Based on extensive air quality modeling and 
analyses, we found that sources in 22 States and the District of 
Columbia (DC) (23 States) emit NOX in amounts that 
significantly contribute to nonattainment of both the 1-hour and 8-hour 
ozone national ambient air quality standards (NAAQS) in downwind 
States. We set forth requirements for each of the affected upwind 
States to submit SIP revisions prohibiting those amounts of 
NOX emissions which significantly contribute to downwind air 
quality problems. In the NOX SIP Call Rule, as modified by 
the March 2, 2000, technical amendments (65 FR 11222), we also 
established statewide NOX emissions budgets for the affected 
States. The budgets were calculated by assuming the emissions 
reductions that would be achieved by applying available, highly cost-
effective controls to source categories of NOX emissions. 
States had the flexibility to adopt the appropriate mix of controls to 
meet their statewide NOX emissions budgets.
    A number of parties, including certain States as well as industry 
and labor groups, challenged our NOX SIP Call Rule by filing 
petitions for review in the U.S. Court of Appeals for the District of 
Columbia (DC Circuit or Court). On March 3, 2000, the DC Circuit issued 
an opinion, largely upholding the 1-hour basis for the NOX 
SIP Call.\1\
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    \1\ In light of various legal challenges to our promulgation of 
the 8-hour ozone NAAQS (62 FR 38856; July 18, 1997), we requested, 
and the Court granted our motion to stay consideration of issues 
regarding the 8-hour basis for the NOX SIP Call. 
Additionally, on September 18, 2000, we stayed the 8-hour basis for 
the NOX SIP Call indefinitely. (65 FR 56245). See also 40 
CFR 51.121(q).
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    In response to the Court decision, EPA divided the NOX 
SIP Call Rule into two phases, now known as Phase I and Phase II. Under 
Phase I of the rule, EPA moved ahead with implementing those aspects of 
the rule that were upheld by the Court for 19 States and the District 
of Columbia. The EPA required these States to submit SIPs that comply 
with Phase I by October 30, 2000. Because the Court vacated the rule as 
to Wisconsin, Georgia, and Missouri, these States were not required to 
submit Phase I SIPs.
    On April 21, 2004, EPA published a final response to the Court 
decision that addressed the outstanding issues remanded or otherwise 
vacated by the Court, and which is Phase II of the NOX SIP 
Call rule. The affected States were required to submit Phase II SIPs by 
April 1, 2005.\2\
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    \2\ The States which are required to submit Phase II SIPs are 
Alabama, Georgia, Illinois, Indiana, Kentucky, Michigan, Missouri, 
Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West 
Virginia. With respect to Georgia, however, EPA has stayed this 
requirement in order to respond to a petition of reconsideration 
filed by the Georgia Coalition for Sound Environmental Policy. (70 
FR 5159; August 31, 2005).
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II. What Action Is EPA Taking Today?

    Today, EPA is making findings of failure to submit complete SIP 
revisions, including adopted rules, in response to Phase II of the 
NOX SIP Call.\3\ The States that are receiving findings of 
failure to submit Phase II SIP revisions are Indiana, Illinois, 
Kentucky, Michigan, and Virginia. This finding defines the start of a 
clock for EPA to develop a federal implementation plan (FIP) under 
section 110(c) of the CAA.
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    \3\ Our stay of the 8-hour basis of the NOX SIP Call 
Rule is with respect to all aspects of the rule as they relate to 
the 8-hour requirements, thus, the affected States remain under no 
obligation to submit SIP revisions that address the 8-hour basis for 
the NOX SIP Call. Today's findings, therefore, are only 
for purposes of the 1-hour basis, and not the 8-hour basis of the 
NOX SIP Call Rule.
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    Recently, EPA sent letters to State officials of the affected 
States describing the status of the States' effort in completing a 
Phase II SIP. The letters also noted that we would be publishing 
findings of failure to submit in the Federal Register. (These letters 
are included in the docket for this rulemaking). The EPA intends to 
continue working with these States so that they can submit approvable 
adopted rules as soon as possible.

III. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedures Act

    This is a final EPA action, but is not subject to notice-and-
comment requirements of the Administrative Procedures Act (APA), 5 
U.S.C. 553(b). The EPA invokes, consistent with past practice (see for 
example, 61 FR 36294, July 10, 1996), the good cause exception pursuant 
to the APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are unnecessary 
because no significant EPA judgment is involved in making a finding of 
failure to submit SIPs or elements of SIPs required by the CAA, where 
States have made no submissions to meet the requirement by the 
statutory date.

B. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'' and, 
therefore, subject to 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;

[[Page 6349]]

    (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, a determination has 
been made that this rule is not a ``significant regulatory action'' 
because none of the above factors apply. As such, this final action was 
not formally submitted to the Office of Management and Budget (OMB) for 
review.

C. 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.

D. Regulatory Flexibility Act

    Today's final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice-and-comment rulemaking requirements under 
the APA or any other statute. This rule is not subject to notice-and-
comment requirements under the APA or any other statute because 
although the rule is subject to the APA, the Agency has invoked the 
``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not 
subject to the notice and comment requirement.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for 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 of 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 to have 
meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small government on compliance with 
regulatory requirements.
    The EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more in any 
1 year by either State, local, or Tribal governments in the aggregate 
or to the private sector in any 1 year. It does not create any 
additional requirements beyond those of the NOX SIP Call (63 
FR 57356). This rule responds to the requirement in the CAA for States 
to submit SIPs to satisfy requirements of the NOX SIP Call. 
This action simply finds that States have failed to submit SIPs to 
address a pre-existing statutory requirement under the CAA. Thus, 
today's rule is not subject to the requirements of sections 202 and 205 
of the UMRA.

F. 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, or the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final 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.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This final rule does not have 
``Tribal implications'' as specified in Executive Order 13175. This 
rule responds to the requirement in the CAA for States to submit SIPs 
to satisfy certain elements required under section 110(a)(2) of the CAA 
for the NOX SIP Call. Thus, Executive Order 13175 does not 
apply to this rule.

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

    Executive Order 13045: ``Protection of Children From Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health and safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA 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 EPA.
    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because EPA does not have reason to believe that the environmental 
health risks or safety risks addressed by this rule present a 
disproportionate risk or safety risk to children.

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

    This rule is not subject to Executive Order 13211, ``Actions That 
Significantly Affect Energy Supply, Distribution, or Use,'' (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

J. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act

[[Page 6350]]

of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impracticable. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by VCS bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when EPA decides not to use 
available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the Agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective March 10, 2006.

List of Subjects in 40 CFR Part 51

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

    Dated: January 27, 2006.
William L. Wehrum,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 06-1175 Filed 2-7-06; 8:45 am]
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