Technology Transfer Network / NAAQS
Ozone Implementation
Rulemaking on Section 126 Petitions;
Revision of Definition of Requirement
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 22, 2002 (Volume 67, Number 36)]
[Proposed Rules]
[Page 8385-8394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22fe02-23]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52, 70, and 71
[FRL-7147-5]
RIN 2060-AJ36
Rulemaking on Section 126 Petitions From New York and Connecticut
Regarding Sources in Michigan; Revision of Definition of Applicable
Requirement for Title V Operating Permit Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to revise one element of a final rule
published on January 18, 2000, regarding petitions filed by four
Northeastern States under section 126 of the Clean Air Act (CAA). The
petitions seek to mitigate interstate transport of nitrogen oxides
(NOX), one of the main precursors of ground-level ozone
pollution. The final rule partially approved the four petitions under
the 1-hour ozone national ambient air quality standard, thereby
requiring certain types of sources located in 12 States and the
District of Columbia to reduce their NOX emissions.
Subsequently, on March 3, 2000, the U.S. Court of Appeals for the
District of Columbia Circuit issued a decision on a related EPA
regulatory action, the NOX State implementation plan call
(NOX SIP call), that potentially affects the section 126
Rule. Although the court decision did not directly address the State of
Michigan, the reasoning of the court regarding the significance of
NOX emissions from sources in two other States calls into
question the inclusion of a portion of Michigan in the area covered by
the NOX SIP call. The section 126 Rule is based on many of
the same analyses and information used for the NOX SIP call
and covers part of Michigan. Thus, in light of the court ruling, EPA is
proposing to withdraw its section 126 findings and to deny the
petitions under the 1-hour ozone standard with respect to sources
located in the portion of Michigan that is at issue in the
NOX SIP call, known as the ``coarse grid'' part of that
State. Although EPA has not identified any existing section 126 sources
located in the coarse grid, this proposal would affect new sources
locating in the coarse grid.
The EPA is also proposing to revise the definition of the
``applicable requirement'' for title V operating permit programs by
providing expressly that any standard or other requirement under
section 126 is an applicable requirement and must be included in
operating permits issued under title V of the CAA.
DATES: The comment period on this proposal ends on April 15, 2002.
Comments must be postmarked by the last day of the comment period and
sent directly to the Docket Office listed in ADDRESSES (in duplicate
form if possible). A public hearing will be held on March 15, 2002 in
Arlington, VA, if one is requested by March 7, 2002. Please refer to
SUPPLEMENTARY INFORMATION for additional information on the comment
period and hearing.
ADDRESSES: Comments may be submitted to the Office of Air and Radiation
Docket and Information Center (6102), Attention: Docket No. A-97-43,
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460, telephone (202) 260-7548. The EPA encourages
electronic submission of comments and data following the instructions
under SUPPLEMENTARY INFORMATION of this document. No confidential
business information should be submitted through e-mail.
Documents relevant to this action are available for inspection at
the Docket Office, located at 401 M Street SW., Room M-1500,
Washington, DC 20460, between 7:30 a.m. and 5:30 p.m., Monday though
Friday, excluding legal holidays. A reasonable fee may be charged for
copying.
The public hearing, if requested, will be held at Crystal Mall 2
(Room 1110 ``the fish bowl''), Crystal City, 1921 Jefferson Davis Hwy,
Arlington, VA 22202.
FOR FURTHER INFORMATION CONTACT: Questions concerning today's action
should be addressed to Carla Oldham, Office of Air Quality Planning and
Standards, Air Quality Strategies and Standards Division, C539-02, 4930
Old Page Road, Research Triangle Park, NC, 27711, telephone (919) 541-
3347, e-mail at oldham.carla@epa.gov.
SUPPLEMENTARY INFORMATION:
Public Hearing
The EPA will conduct a public hearing on this proposal on March 15,
2002 beginning at 9:00 a.m., if requested by March 7, 2002. The EPA
will not hold a hearing if one is not requested. Please check EPA's
webpage at https://www.epa.gov/ttn/rto/whatsnew.html on March 11, 2002
for the announcement of whether the hearing will be held. If there is a
public hearing, it will be held at Crystal Mall 2 (Room 1110 ``the fish
bowl''), Crystal City, 1921 Jefferson Davis Hwy, Arlington, VA 22202.
The Metro stop is Crystal City. If you want to request a hearing and
present oral testimony at the hearing, you should notify, on or before
March 7, 2002, JoAnn Allman, Office of Air Quality Planning and
Standards, Air Quality Strategies and Standards Division, C539-02, 4930
Old Page Road, Research Triangle Park, NC 27711, telephone (919) 541-
1815, e-mail allman.joann@epa.gov. Oral testimony will be limited to 5
minutes each. The hearing will be strictly limited to the subject
matter of the proposal, the scope of which is discussed below. Any
member of the public may file a written statement by the close of the
comment period. Written statements (duplicate copies preferred) should
be submitted to Docket No. A-97-43 at the address given above for
submittal of comments. The hearing schedule, including the list of
speakers, will be posted on EPA's webpage at https://www.epa.gov/ttn/
rto/whatsnew.html. A verbatim transcript of the hearing, if held, and
written statements will be made available for copying during normal
working hours at the Office of Air and Radiation Docket and Information
Center address given above for inspection of documents.
Availability of Related Information
The official record for this rulemaking, as well as the public
version, has been established under docket number A-97-43 (including
comments and data submitted electronically as described below). A
public version of this record, including printed, paper versions of
electronic comments, which does not include any information claimed as
confidential business information, is available for inspection from
7:30 a.m. to 5:30 p.m., Monday through Friday, excluding legal
holidays. The official rulemaking record is located at the address in
ADDRESSES at the beginning of this document. In addition, the Federal
Register rulemaking actions and associated documents are located at
https://www.epa.gov/ttn/rto/126.
The EPA has issued a separate rule on NOX transport
entitled, ``Finding of Significant Contribution and Rulemaking for
Certain States in the Ozone Transport Assessment Group Region for
Purposes of Reducing Regional Transport of Ozone.'' The rulemaking
docket for that rule (Docket No. A-96-56), hereafter referred to as the
NOX SIP call, contains information and analyses that EPA has
relied upon in the section 126 rulemaking, and hence documents in that
docket are part of the rulemaking record for this rule. Documents
related to the NOX SIP call
[[Page 8387]]
rulemaking are available for inspection in docket number A-96-56 at the
address and times given above.
Submitting Electronic Comments
Electronic comments are encouraged and can be sent directly to EPA
at A-and-R-Docket@epa.gov. Electronic comments must be submitted as an
ASCII file avoiding the use of special characters and any form of
encryption. Comments and data will also be accepted on disks in
WordPerfect 8.0 or ASCII file format. All comments and data in
electronic form must be identified by the docket number A-97-43.
Electronic comments may be filed online at many Federal Depository
Libraries.
Outline
I. Background
A. What Does the May 1999 Section 126 Rule Do?
B. How Did the January 2000 Rule Revise the May 1999 Rule?
1. How Did the Court Ruling on the 8-Hour Standard Affect the
May 1999 Section 126 Rule?
2. How Did the Court Stay of the NOX SIP Call Affect
the Section 126 Rule?
C. March 3, 2000 Court Decision on the NOX SIP Call
1. What is the Relevance of the NOX SIP Call Court
Decision to the Section 126 Rule?
2. What is the NOX SIP Call Litigation Regarding
Coarse Grid Sources?
3. What is EPA's Response to the NOX SIP Call Court
Decision?
II. Section 126 Proposal
A. What is the Geographic Scope of the 1-Hour Findings for
Michigan Sources?
B. What is Today's Proposal on the Michigan Coarse Grid Sources
Under the 1-Hour Standard?
C. Is EPA Proposing Action Under the 8-Hour Standard on the
Affirmative Technical Determinations that Affect Coarse Grid
Sources?
D. Does Today's Proposal Affect the Section 126 Requirements for
Michigan Fine Grid Sources or Sources Located in Other States?
III. What is the Revision to the Definition of ``Applicable
Requirement'' for Title V Operating Permit Programs?
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
B. Unfunded Mandates Reform Act
C. Executive Order 13132: Federalism
D. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
E. Regulatory Flexibility Act
F. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
G. National Technology Transfer and Advancement Act
H. Paperwork Reduction Act
I. Executive Order 13211: Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use
I. Background
In final rules published on May 25, 1999 (64 FR 28250) (May 1999
Rule) and January 18, 2000 (65 FR 2674) (January 2000 Rule), EPA took
action on petitions filed separately by eight Northeastern States under
section 126 of the CAA. Each petition requested that EPA make a finding
that certain stationary sources located in other specified States are
emitting NOX in amounts that significantly contribute to
ozone nonattainment and maintenance problems in the petitioning State.
All of the States directed their petitions at the 1-hour ozone
standard. Five of the States also directed their petitions at the 8-
hour ozone standard. The petitions targeted electric utilities,
industrial boilers and turbines, and certain other stationary sources
of NOX. The States that submitted petitions are Connecticut,
Maine, Massachusetts, New Hampshire, New York, Rhode Island,
Pennsylvania, and Vermont.
Section 126 of the Clean Air Act (CAA) authorizes a downwind State
to petition EPA for a finding that any new (or modified) or existing
major stationary source or group of stationary sources upwind of the
State emits or would emit in violation of the prohibition of section
110(a)(2)(D)(i) because their emissions contribute significantly to
nonattainment, or interfere with maintenance, of a national ambient air
quality standard in the State. Sections 110(a)(2)(D)(i), 126(b)-(c). If
EPA makes the requested finding, the sources must shut down within 3
months from the finding unless EPA directly regulates the sources by
establishing emissions limitations and a compliance schedule, extending
no later than 3 years from the date of the finding, to eliminate the
prohibited interstate transport of pollutants as expeditiously as
possible. See sections 110(a)(2)(D)(i) and 126(c).
A. What Does the May 1999 Section 126 Rule Do?
In the May 1999 Rule, EPA determined which petitions were
approvable based on their technical merit. The EPA made affirmative
technical determinations that NOX emissions from existing
and new large electric generating units (EGUs) and large industrial
boilers and turbines (non-EGUs) located in certain States identified in
the petitions are significantly contributing to nonattainment in, or
interfering with maintenance by, one or more of the petitioning States
with respect to the 1-hour and/or 8-hour ozone standard. Separate
determinations were made under the 1-hour and 8-hour standards.
The EPA deferred making the section 126 findings based on the
affirmative technical determinations pending certain actions by EPA and
the States with respect to the NOX SIP call. Instead,
according to the rule, the section 126 findings and associated control
requirements would be automatically triggered at specific future dates
if States and EPA failed to stay on track to meet the SIP call
obligations. In the May 1999 Rule, EPA also denied the portions of the
petitions that did not have technical merit.
In evaluating the petitions, EPA relied on the analyses and
information from the NOX SIP call.
B. How Did the January 2000 Rule Revise the May 1999 Rule?
Shortly after EPA issued the May 1999 Rule (which was signed by the
Administrator on April 30, 1999), two separate rulings by the U.S.
Court of Appeals for the District of Columbia Circuit (D.C. Circuit)
affected the Rule. In light of the court rulings, on January 18, 2000
EPA published a final rule (January 2000 Rule) which modified two
aspects of the May 1999 Rule.
1. How Did the Court Ruling on the 8-Hour Standard Affect the May 1999
Section 126 Rule?
In one of the court rulings, issued on May 14, 1999, the D.C.
Circuit questioned the constitutionality of the CAA authority to review
and revise the national ambient air quality standards (NAAQS), as
applied by EPA in its promulgation of the 8-hour ozone standard (as
well as the particulate matter NAAQS). See American Trucking Ass'ns v.
EPA, 175 F.3rd 1027 (D.C. Cir.), modified, 195 F.3rd 4 (D.C. Cir.
1999), cert. granted, 68 U.S.C.W. 3724 (May 22, 2000), 68 U.S.C.W. 3739
(May 30, 2000). The court's ruling curtailed EPA's ability to require
States to comply with a more stringent ozone NAAQS. On October 29,
1999, the D.C. Circuit granted in part and denied in part EPA's
rehearing request.
On January 27, 2000, the Administration filed a petition of
certiorari with the Supreme Court seeking review of this opinion.
Several of the parties who challenged the NAAQS filed conditional
cross-petitions for certiorari on the issue of whether the CAA
precludes the consideration of costs in establishing NAAQS. In May
2000, the Supreme Court granted EPA's petition and the petitioners'
cross-petitions, and the parties have filed their briefs with the
Court. The ongoing litigation continues to create uncertainty
[[Page 8388]]
with respect to EPA's ability to rely upon the 8-hour ozone standard as
a basis for making findings under section 126 at this time.
In the January 2000 section 126 Rule, EPA explained that it
believed it should not continue implementation efforts under section
126 with respect to the 8-hour standard that could be construed as
inconsistent with the Court ruling in American Trucking. Therefore, in
the January 2000 Rule, EPA voluntarily stayed the 8-hour affirmative
technical determinations set forth in the May 1999 Rule. The EPA will
address the 8-hour portion of the section 126 Rule through additional
notice-and-comment rulemaking if and when EPA is able to implement the
8-hour standard.
2. How Did the Court Stay of the NOX SIP Call Affect the
Section 126 Rule?
The NOX SIP Call required submission of the SIP
revisions by September 30, 1999. State Petitioners challenging the
NOX SIP Call filed a motion requesting the Court to stay the
submission schedule until April 27, 2000. In response, on May 25, 1999,
the D.C. Circuit issued a stay of the SIP submission deadline pending
further order of the Court. Michigan v. EPA, 213 F.3d 663 (D.C. Cir.
2000) (May 25, 1999 order granting stay in part).
Because the court had stayed the NOX SIP call schedule,
and there was no explicit and expeditious deadline for compliance with
that rule, EPA believed there was no longer a basis for deferring
making the section 126 findings based on a failure to meet the SIP call
submission requirements. Therefore, in the January 2000 Rule, EPA
deleted the automatic trigger mechanism for making findings and instead
simply made final findings under the 1-hour standard based on the
affirmative technical determinations in the May 1999 Rule. The 1-hour
findings were made with respect to the section 126 petitions from
Connecticut, Massachusetts, New York, and Pennsylvania. The findings
affected large EGUs and large non-EGUs located in the District of
Columbia and 12 States, including Michigan. EPA promulgated the Federal
NOX Budget Trading Program as the control remedy and issued
NOX allowance allocations to each source. The rule required
sources affected by the 1-hour findings to reduce NOX
emissions by May 1, 2003.\1\ (On August 24, 2001, the D.C. Circuit
temporarily suspended the section 126 Rule compliance date for EGUs
while EPA resolves a remanded issue related to EGU growth factors. The
EPA is currently developing its response to the remand. In a January
16, 2002 memorandum from John Seitz, Director of EPA's Office of Air
Quality Planning and Standards, to Regional Air Division Directors
entitled, ``Deadlines for Electric Generating Units (EGUs) and Non-
Electric Generating Units (non-EGUs) under the Section 126 Rule,'' EPA
has indicated its intent to reset the compliance date for EGUs and non-
EGUs to May 31, 2004, subject to EPA's response to the growth factor
remand.)
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\1\ The EPA notes that on June 22, 2000, the Court lifted the
stay of the SIP submittal date for the NOX SIP call and
ordered that the SIP submissions be due 128 days from the June 22,
2000 date of the order. At the time of the May 25, 1999 stay of the
SIP submittal date, States had 128 days left to submit their SIPs.
Thus, the new SIP submittal date became October 30, 2000. The EPA
has established a two-phased process for submitting the
NOX SIPs; the October 30, 2000 date is for the phase I
SIP. The EPA will be establishing the due date for the phase II
NOX SIP through notice-and-comment rulemaking. Therefore,
the deadline for States to meet their full NOX SIP call
obligation has not yet been set. For further details, see the
proposal on the NOX SIP call that is being issued in the
same general timeframe as today's proposal. Because EPA delinked the
making of the section 126 findings from the NOX SIP call
SIP submittal date, the lifting of the stay of the SIP submittal
date did not affect the section 126 action.
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C. March 3, 2000 Court Decision on the NOX SIP Call
1. What Is the Relevance of the NOX SIP Call Court Decision
to the Section 126 Rule?
On March 3, 2000, the United States Court of Appeals for the
District of Columbia Circuit Court issued its decision on the
NOX SIP call, ruling in favor of EPA on all major issues.
Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000).
However, the Court ruled against EPA on several points, one of
which is relevant to today's proposal on the section 126 Rule.
Specifically, the court vacated the inclusion of Georgia and Missouri
in the NOX SIP call in light of the Ozone Transport
Assessment Group (OTAG) conclusions that emissions from coarse grid
portions of States did not merit controls. The court remanded this
issue concerning Georgia and Missouri to EPA for further consideration.
The section 126 Rule is based on NOX SIP call analyses and
also affects sources located in the coarse grid. (See section II.C.2
below for an explanation of coarse versus fine grid areas of States.)
What Is the NOX SIP Call Litigation Decision Regarding
Coarse Grid Sources?
In the NOX SIP call, Georgia and Missouri industry
petitioners challenged EPA's decision to calculate NOX
budgets for these two States based on NOX emissions
throughout the entirety of each State. The petitioners maintained that
the record supports including only eastern Missouri and northern
Georgia as contributing to downwind ozone problems.
The challenge from these petitioners generally stems from the OTAG
recommendations. The OTAG recommended NOX controls to reduce
transport for areas within the ``fine grid'' of the air quality
modeling domain, but recommended that areas within the ``coarse grid''
not be subject to additional controls, other than those required by the
CAA.\2\
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\2\ The OTAG recommendation on Utility NOX Controls
approved by the Policy Group, June 3, 1997 (62 FR 60318, Appendix B,
November 7, 1997).
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In its modeling, OTAG used grids drawn across most of the eastern
half of the United States. The ``fine grid'' has grid cells of
approximately 12 kilometers on each side (144 square kilometers). The
``coarse grid'' extends beyond the perimeter of the fine grid and has
cells with 36 kilometer resolution. As shown in Figure F-10, Appendix F
of part 52.34, the fine grid includes the area encompassed by a box
with the following geographic coordinates: Southwest Corner: 92 degrees
West longitude, 32 degrees North latitude; Northeast Corner: 69.5
degrees West longitude, 44 degrees North latitude (OTAG Final Report
Chapter 2). The OTAG could not include the entire Eastern U.S. within
the fine grid because of computer hardware constraints.
It is important to note that there were two key factors directly
related to air quality that OTAG considered in determining the location
of the fine grid-coarse grid line.\3\ (See OTAG Technical Supporting
Document, Chapter 2, page 6; www.epa.gov/ttn/otag/finalrpt/.)
Specifically, the fine grid-coarse grid line was drawn to: (1) Include
within the fine grid as many of the 1-hour ozone nonattainment problem
areas as possible and still stay within the computer and model run time
constraints, (2) avoid dividing any individual major urban area between
the fine grid and coarse grid, and (3) be located along an area of
relatively low emissions density. As a result, the fine grid-coarse
grid line did not track State boundaries, and Missouri and Georgia were
among several States that were split between the fine and coarse grids.
[[Page 8389]]
Eastern Missouri and northern Georgia were in the fine grid while
western Missouri and southern Georgia were in the coarse grid.
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\3\ In addition to these two factors, OTAG considered three
other factors in establishing the geographic resolution, overall
size, and the extent of the fine grid. These other factors dealt
with the computer limitations and the resolution of available model
inputs.
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The analysis OTAG conducted found that emissions controls examined
by OTAG, when modeled in the entire coarse grid (i.e., all States and
portions of States in the OTAG region that are in the coarse grid) had
little impact on high 1-hour ozone levels in the downwind ozone problem
areas of the fine grid.\4\
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\4\ OTAG recommendation on Major Modeling/Air Quality
Conclusions approved by the Policy Group, June 3, 1997 (62 FR 60318,
Appendix B, November 7, 1997).
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The Court vacated EPA's determination of significant contribution
for all of Georgia and Missouri. Michigan v. EPA, 213 F.3d at 685. The
Court did not seem to call into question the proposition that the fine
grid portion of each State should be considered to make a significant
contribution downwind. However, the Court emphasized that ``EPA must
first establish that there is a measurable contribution,'' id. at 684,
from the coarse grid portion of the State before determining that the
coarse grid portion of the State significantly contributes to ozone
nonattainment downwind.
Based on OTAG's modeling and recommendations, the technical record
for the EPA's final NOX SIP Call rulemaking, and emissions
data, EPA believes that emissions in the fine grid portions of Georgia
and Missouri comprise a measurable portion of the entire State's
significant contribution to downwind nonattainment. Specifically,
OTAG's technical findings and recommendations state that areas located
in the fine grid should receive additional controls because they
contribute to ozone in other areas within the fine grid. In addition,
EPA performed State-by-State modeling for Georgia and Missouri as part
of the final NOX SIP Call rulemaking. The results of this
modeling show that emissions in both Georgia and Missouri make a
significant contribution to nonattainment in other States. The EPA's
finding of significant contribution for Missouri and Georgia was not
disturbed by the Court, and the Georgia and Missouri industry
petitioners challenging the rule did not challenge this part of the
decision. Id. at 681.
3. What Is EPA's Response to the NOX SIP Call Court
Decision?
The EPA is preparing a rulemaking on the NOX SIP call to
address issues remanded by the court in the March 3, 2000 decision.
Among other issues, the proposal addresses the geographic applicability
of the NOX SIP call for States located partially in the
coarse grid. With regard to Georgia and Missouri, which the Court
remanded to EPA for further consideration, EPA is proposing that the
SIP call only cover the fine grid portions at this time. The EPA also
explains that although this aspect of the court decision did not
directly address the States of Michigan and Alabama, the reasoning of
the court regarding control requirements for Georgia and Missouri calls
into question the inclusion of the coarse grid portions of Michigan and
Alabama in the NOX SIP call. Therefore, EPA is proposing to
only cover the fine grid portions of Michigan and Alabama as well. The
EPA intends to address the emissions from the coarse grid portions of
these States at such time as it evaluates transport from 15 other
States in the OTAG region that were not included in the final
NOX SIP call.
II. Section 126 Proposal
The section 126 Rule is based on technical analyses and information
from the NOX SIP call and covers certain sources located in
the coarse grid of the OTAG modeling domain. Thus, the court ruling in
the NOX SIP call litigation regarding whether coarse grid
portions of States should be included in the NOX SIP call is
relevant to the section 126 action as well.
In light of the court ruling, EPA is proposing to withdraw its
section 126 findings and to deny the Connecticut and New York petitions
under the 1-hour ozone standard with respect to sources that are or
will be located in the coarse grid portion of Michigan. There are no
other coarse grid areas covered by the section 126 Rule under the 1-
hour standard. The EPA emphasizes that it is not reopening any other
part of the section 126 final rule for public comment and
reconsideration.
A. What Is the Geographic Scope of the 1-Hour Findings for Michigan
Sources?
The section 126 petitions identified sources in different
geographic areas. Both the Connecticut and New York petitions
identified sources in specific OTAG Subregions. These Subregions were
delineated by OTAG for use in some of the early air quality modeling
analyses to determine the spatial scale of transport. The Subregional
divisions were not used for the purpose of evaluating various control
strategies. (See 62 FR 60318; November 7, 1997.) The Connecticut
petition targeted sources located in OTAG Subregions 2, 6, and 7 and
the portion of the Ozone Transport Region extending west and south of
Connecticut. The New York petition targeted sources located in OTAG
Subregions 2, 6, and 7 and the portion of the Ozone Transport Region
extending west and south of New York. Part of Michigan is included in
OTAG Subregion 2 (see Figure 1 below). In the January 2000 Rule, EPA
made findings that large EGUs and large non-EGUs located in that
portion of Michigan are significantly contributing to both Connecticut
and New York under the 1-hour ozone standard. (Other portions of the
Michigan fine and coarse grids were not covered by section 126 findings
because the Connecticut and New York petitions did not target those
areas.)
[[Page 8390]]
[GRAPHIC]
[TIFF OMITTED]
TP22FE02.001
B. What Is Today's Proposal on the Michigan Coarse Grid Sources Under
the 1-Hour Standard?
The Subregion 2 portion of Michigan, for which EPA made 1-hour
section 126 findings, covers the area south of 45 degrees latitude and
east of 86 degrees longitude. The fine-coarse grid line cuts through
Michigan at 44 degrees latitude. Thus, a strip at the northern end of
Subregion 2 is located in the coarse grid. In today's action, EPA is
proposing to withdraw the section 126 findings made in response to the
petitions from Connecticut and New York under the 1-hour standard for
sources that are or will be located in the coarse grid portion of
Michigan. The EPA has not identified any existing section 126 sources
located in that area of the coarse grid. As discussed above in section
I.C.2, in the Michigan v. EPA decision on the NOX SIP call,
the court indicated that ``EPA must first establish that there is a
measurable contribution'' from the coarse grid portion of the State
before holding the coarse grid portion of the State partly responsible
for the significant contribution of downwind ozone nonattainment in
another State. Michigan v. EPA, 213 F.3d at 684. Elsewhere, the Court
seemed to identify the standard as ``material contribution []''. Id. In
response to the court opinion, EPA is proposing to include only the
fine grid portion of Michigan in the NOX SIP call at this
time. The EPA is applying the same reasoning to the Section 126 Rule.
The EPA does not have analyses specific to the coarse grid to
demonstrate that emissions from that area measurably or materially
contribute to nonattainment in the petitioning States. Therefore, EPA
is proposing to deny the New York and Connecticut petitions with
respect to the Michigan coarse grid sources. Under today's proposal,
any existing or new sources located in that affected segment of the
coarse grid (north of 44 degrees latitude, south of 45.0 degrees
latitude, and east of 86.0 degrees latitude) would no longer be subject
to the control requirements of the section 126 Rule.\5\
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\5\ The EPA is taking a different approach to interpreting the
fine-coarse grid split for purposes of a new NOX SIP call
proposal. Under the NOX SIP call, with respect to
Michigan, EPA is proposing findings only for the fine grid. Thus,
the coarse grid portion, which was covered under the October 27,
1998 NOX SIP call, would no longer be affected. The
NOX SIP call establishes State emissions budgets rather
than regulating individual sources. Because of the uncertainties
with accurately dividing emissions between the fine and coarse grid
portions of individual counties, EPA is proposing that the
NOX SIP call emissions budgets be based on all counties
that are wholly contained within the fine grid. That is, counties
that are in the coarse grid or that straddle the fine-coarse grid
line would be excluded. Because the section 126 action regulates
specific stationary sources, the issue of how to apportion a full
NOX inventory on a partial-county basis does not arise.
Therefore, the section 126 proposal follows the fine-coarse grid
line exactly. The EPA notes that the Section 126 Rule has already
covered partial counties for Michigan in its January 2000 Rule. In
that rule, only sources east of 86 degrees longitude and south of 45
degrees latitude were affected.
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C. Is EPA Proposing Action Under the 8-Hour Standard on the Affirmative
Technical Determinations That Affect Coarse Grid Sources?
As discussed above in section I.B.1, as a result of the court
decision on the 8-hour ozone standard, EPA voluntarily stayed the 8-
hour affirmative technical determinations in the May 1999 Rule (65 FR
2674, January 18, 2000). Thus, EPA has not moved forward to make any
section 126 findings or establish any control requirements based on the
8-hour portion of the May 1999 Rule. However, the affirmative technical
determinations are final EPA actions specifying which portions of the
8-hour petitions are approvable and could provide a basis for future
required control measures. The 8-hour affirmative technical
determinations affect sources located in 19 States and the District of
Columbia, including the coarse grid portions of Alabama, Michigan,
Missouri, and New York. Because EPA has indefinitely stayed the section
126 Rule with respect to the 8-hour standard, EPA is not at this time
proposing to revise the 8-hour affirmative technical determinations for
coarse grid sources. The EPA intends to address these sources through
notice-and-comment rulemaking if and when EPA is able to implement the
8-hour standard.
[[Page 8391]]
D. Does Today's Proposal Affect the Section 126 Requirements for
Michigan Fine Grid Sources or Sources Located in Other States?
Today's proposal does not affect the NOX allowance
allocations for Michigan sources located in the fine grid that were
established in the January 2000 Rule. In addition, today's proposal
does not affect the section 126 trading budget for Michigan or the
compliance supplement pool. The EPA has not identified any existing
large EGUs and large non-EGUs in the coarse grid portion of Michigan
affected by today's proposal. Therefore, the NOX allowance
calculations in the January 2000 Rule were already based only on fine
grid emissions. This proposal does not affect any of the section 126
Rule requirements for sources located in other States. Therefore,
today's proposal does not affect the ability of any sources located in
the fine grid to comply with the section 126 requirements by the
compliance deadline.
III. What Is the Revision to the Definition of ``Applicable
Requirement'' for Title V Operating Permit Programs?
The EPA is proposing to revise the definitions of the ``applicable
requirement'' in 40 CFR 70.2 and 71.2 by providing expressly that any
standard or other requirement under section 126 of the CAA is an
applicable requirement and must be included in operating permits issued
under title V of the CAA. Section 504(a) of the CAA explicitly requires
that each permit include ``enforceable emission limitations and
standards, a schedule of compliance, * * * and such other conditions as
are necessary to assure compliance with applicable requirements of this
Act, including the requirements of the applicable implementation
plan.'' 42 U.S.C. 7661c(a). The current Sec. 70.2 and Sec. 71.2
definitions of ``applicable requirement'' do not include requirements
that are imposed under section 126, even though section 126 authorizes
the Administrator to adopt standards and requirements under certain
circumstances as discussed above. Our proposed revision remedies this
omission and clarifies the treatment, in title V operating permits, of
section 126 requirements promulgated by the Administrator.
Emission limitations, compliance schedules, and other regulatory
requirements adopted under section 126 are, on their face, requirements
of the CAA and therefore should be included in the definitions of
``applicable requirement'' in Sec. 70.2 and Sec. 71.2. Indeed, in the
preamble of the January 18, 2000 final rule establishing the
NOX Budget Trading Program under section 126, EPA stated
that the requirements of the final rule ``are applicable requirements
under Sec. 70.2 and must be reflected in the title V operating permit''
of sources that are subject to the program and required to have such a
permit (65 FR 2688). However, this statement was based on an erroneous
reading that paragraph (1) of the definition of ``applicable
requirement'' in Sec. 70.2 (which is identical to the definition of the
same term in Sec. 71.2) is written broadly enough to include section
126 requirements as an ``applicable requirement.'' \6\
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\6\ The conclusion that the requirements of the NOX
Budget Trading Program under section 126 are an ``applicable
requirement'' under Sec. 70.2 was based on the assumption that,
since section 126 is part of title I, these section 126 requirements
are ``provided for in the applicable implementation plan approved or
promulgated by EPA through a rulemaking under title I.'' 40 CFR 70.2
(definition of ``applicable requirement'', paragraph (1)). In fact,
however, section 126 requirements promulgated by EPA are not part of
an implementation plan under section 110. See CAA section 302(q), 42
U.S.C. 7603(q) (definition of ``applicable implementation plan'').
---------------------------------------------------------------------------
Despite the erroneous discussion in the preamble of the January 18,
2000 section 126 Rule, that rule expressly requires that title V
operating permits include the requirements of the NOX Budget
Trading Program. Specifically, the rule states that, for each source
required to have a ``federally enforceable permit'' (e.g., a title V
operating permit), such permit must include the requirements of the
NOX Budget Trading Program for units subject to that
program. See 40 CFR 97.20(a).
In order to clarify that section 126 requirements are indeed an
applicable requirement under the CAA and must be included in title V
operating permits, EPA is proposing to revise the definition of
``applicable requirement'' in Sec. 70.2 and Sec. 71.2 to expressly
include standards and other requirements promulgated under section 126.
The requirements of the NOX Budget Trading Program
promulgated on January 18, 2000 are an example of requirements that
would be covered this proposed revision to Sec. 70.2 and Sec. 71.2.
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Under Executive Order 12866, this proposed action is not a
``significant regulatory action'' and is therefore not subject to
review by OMB. In the January 2000 Rule titled ``Findings of
Significant Contribution and Rulemaking on section 126 Petitions for
Purposes of Reducing Interstate Ozone Transport,'' (65 FR 2674), EPA
partially approved four section 126 petitions under the 1-hour ozone
standard. Today's action proposes to withdraw its section 126 findings
and deny petitions under the 1-hour ozone standard with respect to
sources located in a portion of Michigan.
This proposed action does not create any additional impacts beyond
what was promulgated in the January 2000 Rule. This proposed rule also
does not raise novel legal or policy issues. Therefore, EPA believes
that this action is not a ``significant regulatory action.''
B. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, 2
U.S.C. 1532, EPA generally must prepare a written statement, including
a cost-benefit analysis, for any proposed or final rules with ``Federal
mandates'' that may result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year. A ``Federal mandate'' is defined to
include a ``Federal intergovernmental mandate'' and a ``Federal private
sector mandate'' (2 U.S.C. 658(6)). A ``Federal intergovernmental
mandate,'' in turn, is defined to include a regulation that
[[Page 8392]]
``would impose an enforceable duty upon State, local, or tribal
governments,'' (2 U.S.C. 658(5)(A)(i)), except for, among other things,
a duty that is ``a condition of Federal assistance'' (2 U.S.C.
658(5)(A)(I)). A ``Federal private sector mandate'' includes a
regulation that ``would impose an enforceable duty upon the private
sector,'' with certain exceptions (2 U.S.C. 658(7)(A)).
The EPA has determined that this proposed action does not include a
Federal mandate that may result in estimated costs of $100 million or
more for either State, local, or tribal governments in the aggregate,
or for the private sector. This proposed Federal action does not
propose any new requirements, as discussed above. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, would result from this action.
C. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State
law, unless the Agency consults with State and local officials early in
the process of developing the proposed regulation.
This proposed action does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Today's proposed action imposes
no additional burdens beyond those imposed by the January 2000 Rule.
Thus, the requirements of section 6 of the Executive Order do not apply
to this rulemaking action.
D. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Today's action does not significantly or uniquely affect the
communities of Indian tribal governments. As discussed above, today's
proposed action imposes no new requirements that would impose
compliance burdens beyond those that would already apply under the
January 2000 rule. Accordingly, the requirements of Executive Order
13175 do not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicits additional comment on this proposed rule from
tribal officials.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
Today's proposal, if promulgated, would not create new requirements
for small entities or other sources. Instead, this action is proposing
to withdraw the section 126 requirements for sources that are or would
be located in a specified portion of Michigan. Therefore, I certify
that this action will not have a significant economic impact on a
substantial number of small entities.
F. 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.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045, because this action is not ``economically
significant'' as defined under Executive Order 12866 and the Agency
does not have reason to believe the environmental health risks or
safety risks addressed by this action present a disproportionate risk
to children.
G. National Technology Transfer and Advancement Act
Section 12(d) of the National Transfer and Advancement Act of 1995
(``NTTAA'', Pub. L. 104-113 section 12(d) 15 U.S.C. 272 note) directs
EPA to use voluntary consensus standards in its regulatory activities
unless to do so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standards bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable voluntary consensus standards.
[[Page 8393]]
The National Technology Transfer and Advancement Act of 1997 does
not apply because today's action does not propose any new technical
standards. This action is proposing to amend the January 2000 Rule by
reducing the portion of Michigan that is covered by the rule.
H. Paperwork Reduction Act
Today's action does not propose any new information collection
request requirements. Therefore, an information collection request
document is not required.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866. Today's
action does not propose any new regulatory requirements.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Emissions trading,
Intergovernmental relations, Nitrogen oxides, Ozone, Ozone transport,
Reporting and recordkeeping requirements.
40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Intergovernmental relations, Reporting and recordkeeping requirements.
40 CFR Part 71
Administrative practice and procedure, Air pollution control,
Reporting and recordkeeping requirements.
Dated: February 12, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the preamble, chapter I of title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
2. Section 52.34 is amended by revising paragraphs (c)(2)(vi) and
(g)(2)(vi) to read as follows:
Sec. 52.34 Action on petitions submitted under section 126 relating to
emissions of nitrogen oxides.
* * * * *
(c) * * *
(2) * * *
(vi) Portion of Michigan located south of 44 degrees latitude in
OTAG Subregion 2, as shown in appendix F, Figure F-2, of this part.
* * * * *
(g) * * *
(2) * * *
(vi) Portion of Michigan located south of 44 degrees latitude in
OTAG Subregion 2, as shown in appendix F, Figure F-6, of this part.
* * * * *
Appendix F--[Amended]
3. Appendix F is amended by adding a new figure F-10 in numerical
order to read as follows:
Appendix F to Part 52--Clean Air Act Section 126 Petitions From Eight
Northeastern States: Named Source Categories and Geographic Coverage
* * * * *
[[Page 8394]]
[GRAPHIC]
[TIFF OMITTED]
TP22FE02.002
PART 70--STATE OPERATING PERMIT PROGRAMS
4. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
5. Section 70.2 is amended by redesignating paragraphs (7) through
(12) of the definition of ``Applicable requirement'' as paragraphs (8)
through (13) and adding a new paragraph (7) to read as follows:
Sec. 70.2 Definitions.
* * * * *
Applicable requirement * * *
(7) Any standard or other requirement under section 126(a)(1) and
(c) of the Act;
* * * * *
PART 71--FEDERAL OPERATING PERMIT PROGRAMS
6. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
7. Section 71.2 is amended by redesignating paragraphs (7) through
(12) of the definition of ``applicable requirement'' as paragraphs (8)
through (13) and adding a new paragraph (7) to read as follows:
Sec. 71.2 Definitions.
* * * * *
Applicable requirement * * *
(7) Any standard or other requirement under section 126(a)(1) and
(c) of the Act;
* * * * *
[FR Doc. 02-3918 Filed 2-21-02; 8:45 am]
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