Findings of Significant Contribution and Rulemaking on Section 126 Petitions for Purposes of Reducing Interstate Ozone Transport

SUMMARY: In today's action, EPA is proposing to amend in two respects a

final rule it recently issued under section 126 of the Clean Air Act

(CAA), acting on certain petitions related to interstate transport of

pollutants. First, EPA is proposing to grant portions of those

petitions addressed in that rule. Second, EPA is proposing to stay

indefinitely certain affirmative technical determinations made in that

rule related to such petitions, pending further developments in ongoing

litigation. EPA recently promulgated, and is publishing elsewhere in

this issue, an interim final stay of the same rule effective until

November 30, 1999. This proposal takes comment on a longer-term

resolution of the issues temporarily addressed by the interim final

stay.

The final rule addressed petitions filed by eight Northeastern

States seeking to mitigate transport of one of the main precursors of

ground-level ozone, nitrogen oxides (NOX), across State

boundaries. On April 30, 1999, EPA made final determinations that

portions of the petitions are technically meritorious.

Subsequently, two recent rulings of the U.S. Court of Appeals for

the District of Columbia Circuit (D.C. Circuit) have affected EPA's

rulemaking under section 126. In one ruling, the court remanded the 8-

hour National Ambient Air Quality Standard (NAAQS) for ozone, which

formed part of the underlying technical basis for certain of EPA's

determinations under section 126. In a separate action, the D.C.

Circuit granted a motion to stay the State implementation plan (SIP)

submission deadlines established in a related EPA action, the

NOX State implementation plan call (NOX SIP

call). In the April 30 notice of final rulemaking (NFR), EPA had

deferred making final findings under section 126 as long as States and

EPA stayed on schedule to meet the requirements of the NOX

SIP call.

In response to these rulings, EPA recently promulgated, and is

publishing elsewhere in this issue, an interim final stay of the

effectiveness of the April 30 NFR until November 30, 1999. With this

action, EPA is proposing two changes to the April 30 NFR to address the

issues raised by the rulings. EPA is also pursuing additional legal

remedies concerning these rulings.

DATES: The comment period on this notice of proposed rulemaking (NPR)

ends on August 9, 1999. 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 July 8, 1999, in Washington, DC. Please refer to SUPPLEMENTARY

INFORMATION: For additional information on the comment period and

public hearing.

ADDRESSES: Comments may be submitted to the Air and Radiation Docket

and Information Center (6102), Attention: Docket No. A-97-43, U.S.

Environmental Protection Agency, 401 M Street SW, room M-1500,

Washington, DC 20460, telephone (202) 260-7548. Comments and data may

also be submitted electronically by following the instructions under

SUPPLEMENTARY INFORMATION of this document. No confidential business

information (CBI) should be submitted through e-mail.

Documents relevant to this action are available for inspection at

the Air and Radiation Docket and Information Center (6102), Attention:

Docket No. A-97-43, U.S. Environmental Protection Agency, 401 M Street

SW, room M-1500, Washington, DC 20460, telephone (202) 260-7548 between

8:00 a.m. and 5:30 p.m., Monday though Friday, excluding legal

holidays. A reasonable fee may be charged for copying.

The public hearing will be held at the EPA Auditorium at 401 M

Street SW, Washington, DC, 20460.

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, MD-15,

Research Triangle Park, NC, 27711, telephone (919) 541-3347, e-mail at

[email protected].

SUPPLEMENTARY INFORMATION:

Public Hearing

The EPA will conduct a public hearing on this NPR on July 8, 1999,

beginning at 9:00 a.m. The hearing will be held at the EPA Auditorium

at 401 M Street SW, Washington, DC, 20460. The metro stop is

Waterfront, which is on the green line. Persons planning to present

oral testimony at the hearings should notify JoAnn Allman, Office of

Air Quality Planning and Standards, Air Quality Strategies and

Standards Division, MD-15, Research Triangle Park, NC 27711, telephone

(919) 541-1815, e-mail [email protected], no later than July 6,

1999. Oral testimony will be limited to five minutes each. 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 above address. The hearing

schedule, including lists of speakers, will be posted on EPA's webpage

at http://www.epa.gov/airlinks prior to the hearing. A verbatim

transcript of the hearing, if held, and written statements will be made

available for copying during normal working hours at the Air and

Radiation Docket and Information Center at the above address.

Availability of Related Information

The official record for the section 126 rulemaking completed April

30, 1999, as well as the public version of the record, has been

established under docket number A-97-43 (including comments and data

submitted electronically as described below). EPA has added new

sections to that docket for purposes of the interim final stay of that

rule and today's proposed rulemaking. The 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 8:00 a.m. to 5:30 p.m.,

Monday through Friday, excluding legal holidays. The rulemaking record

is located at the address in ADDRESSES at the beginning of this

document. In addition, the Federal Register rulemakings and associated

documents are located at http://www.epa.gov/ttn/rto/126.

Outline

I. Background

A. Findings Under Section 126 Petitions To Reduce Interstate Ozone

Transport

B. Effect of Court Decisions

1. 8-Hour NAAQS

2. Stay of Compliance Schedule for NOX SIP Call

II. Proposal

A. Indefinite Stay of Technical Determinations Based on the 8-Hour

NAAQS Pending Further Litigation Developments

B. Findings Under Section 126 and Removal of Trigger Mechanism Based

on NOX SIP Call Compliance Deadlines

III. Status of Upcoming Related Actions

A. Section 126 Control Remedy NFR

B. New Petitions

[[Page 33963]]

IV. Administrative Requirements

A. Executive Order 12866: Regulatory Impact Analysis

B. Impact on Small Entities

C. Unfunded Mandates Reform Act

D. Paperwork Reduction Act

E. Executive Order 13045: Protection of Children from Environmental

Health Risks and Safety Risks

F. Executive Order 12898: Environmental Justice

G. Executive Order 12875: Enhancing the Intergovernmental

Partnership

H. Executive Order 13084: Consultation and Coordination With Indian

Tribal Governments

I. National Technology Transfer and Advancement Act

I. Background

A. Findings Under Section 126 Petitions To Reduce Interstate Ozone

Transport

On April 30, 1999, EPA took final action on petitions filed by

eight Northeastern States seeking to mitigate what they describe as

significant transport of one of the main precursors of ground-level

ozone, NOX, across State boundaries (64 FR 28250, May 25,

1999). The eight States (Connecticut, Maine, Massachusetts, New

Hampshire, New York, Rhode Island, Pennsylvania, and Vermont) filed the

petitions under section 126 of the Clean Air Act (CAA). Section 126

provides that if EPA finds that identified stationary sources emit in

violation of the section 110(a)(2)(D) prohibition on emissions that

significantly contribute to ozone nonattainment or maintenance problems

in a petitioning State, EPA is authorized to establish Federal

emissions limits for the sources.

In the April 30 NFR, EPA made final determinations that portions of

six of these petitions are technically meritorious. Specifically, with

respect to the 1-hour and 8-hour NAAQS for ozone, EPA made affirmative

technical determinations that certain new and existing emissions

sources in certain States emit or would emit NOX in amounts

that contribute significantly to nonattainment in, or interfere with

maintenance by, one or more States that submitted petitions in 1997-

1998 under section 126. The sources that emit NOX in amounts

that significantly contribute to downwind nonattainment problems are

large electric generating units (EGUs) and large non-EGUs for which

highly cost-effective controls are available.

All of the eight petitioning States requested findings under

section 126 under the 1-hour standard, and five of the petitioning

States also requested findings under the 8-hour standard. The EPA took

action under the 1-hour and 8-hour standards as specifically requested

in each State's petition. The EPA made independent technical

determinations for each standard with respect to the individual

petitions. (See the part 52 regulatory text in the April 30, 1999 NFR.)

Under the 1-hour standard, in aggregate for the 8 petitions, EPA made

affirmative technical determinations of significant contribution for

sources located in the following States and the District of Columbia:

Delaware, Indiana, Kentucky, Maryland, Michigan, North Carolina, New

Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia.

Under the 8-hour standard, in aggregate for the five petitions, EPA

made affirmative technical determinations of significant contribution

for sources located in the same States and the District of Columbia as

under the 1-hour standard plus seven additional States: Alabama,

Connecticut, Illinois, Massachusetts, Missouri, Rhode Island, and

Tennessee.

The EPA also provided that the portions of the petitions for which

EPA made affirmative technical determinations would be automatically

deemed granted or denied at certain later dates pending certain actions

by the States and EPA regarding State submittals in response to the

final NOX SIP call. Interpreting the interplay between

sections 110 and 126, EPA stated in the April 30 NFR that a State's

compliance with the NOX SIP call would eliminate the basis

for a finding under section 126 based on these petitions for sources

located in that State. See 64 FR 28271-28274. As a consequence, EPA

concluded it was appropriate to structure its action on the section 126

petitions to account for the existence of the NOX SIP call,

given that it had an explicit and expeditious schedule for compliance.

See 64 FR 28274-28277.

Under EPA's interpretation of section 126 of the CAA, a source or

group of sources is emitting in violation of the prohibition of section

110(a)(2)(D)(i) where the applicable SIP fails to prohibit (and EPA has

not remedied this failure through a FIP) a quantity of emissions from

that source or group of sources that EPA has determined contributes

significantly to nonattainment or interferes with maintenance in a

downwind State. See 64 FR 28271-28274. Under both the section 126

petitions and the NOX SIP call, EPA was operating on

basically the same set of facts regarding the same pollutants and

largely the same amounts of upwind reductions affecting the same

downwind States. Thus, where a State has complied with the

NOX SIP call and EPA has approved its SIP revision, EPA

would not find that sources in that State were emitting in violation of

the prohibition of section 110 and therefore subject to a Federal

remedy under section 126. See 64 FR 28271-28274.

In the absence of the NOX SIP call, EPA would simply

have made a finding under section 126 in the final rule as to whether

sources named in the petitions were emitting in violation of the

prohibition of section 110. However, under the NOX SIP call

there was both a requirement for States to reduce their contribution to

downwind nonattainment problems and an explicit and expeditious

schedule for States to do so. In light of this existing requirement and

a reasonable expectation that States would comply with it within a

short and known timeframe, EPA believed it was reasonable to make final

only technical determinations as to which sources would be in violation

of the prohibition of section 110 if the States or EPA failed to meet a

schedule for action based on the schedule established in the

NOX SIP call. See 64 FR 28274-28277. Deferring the actual

findings under section 126 allowed States subject to the NOX

SIP call an opportunity to comply with the NOX SIP call

before triggering the findings.

The EPA coordinated its section 126 findings with the

NOX SIP call compliance schedule in the following manner.

EPA provided that for the sources for which EPA had made an affirmative

technical determination of significant contribution, EPA would be

deemed to find that the sources emit or would emit NOX in

violation of the prohibition of section 110(a)(2)(D)(i) under the

following circumstances. First, the finding was deemed to be made for

such sources in a State if by November 30, 1999, EPA had not either (a)

proposed to approve the State's SIP revision to comply with the

NOX SIP call, or (b) promulgated a FIP for the State.

Second, the finding was deemed to be made for such sources in a State

if by May 1, 2000, EPA had not either (a) approved the State's SIP

revision to comply with the NOX SIP call, or (b) promulgated

implementation plan provisions meeting the section 110(a)(2)(D)(i)

requirements. Upon EPA's approval of a State's SIP revision to comply

with the NOX SIP call or promulgation of a FIP, the final

rule provided that corresponding portions of the petitions will

automatically be deemed denied. Also, if a finding is deemed to be

made, it will be deemed to be withdrawn, and the corresponding portions

of the petitions will also be deemed to be denied, upon EPA's approval

of a State's SIP revision to

[[Page 33964]]

comply with the NOX SIP call or promulgation of a FIP. See

40 CFR 52.34(i).

B. Effect of Court Decisions

1. 8-Hour NAAQS

On May, 14, 1999, the D.C. Circuit issued an opinion questioning

the constitutionality of the CAA authority to review and revise the

NAAQS, as applied in EPA's revision to the ozone and particulate matter

NAAQS. See American Trucking Ass'ns v. EPA No. 97-1441 and consolidated

cases (D.C. Cir. May 14, 1999). The Court stopped short of finding the

statutory grant of authority unconstitutional, instead providing EPA

with another opportunity to develop a determinate principle for

promulgating NAAQS under the statute. The court continued by addressing

other issues, including EPA's authority to classify and set attainment

dates for a revised ozone standard. Based on the statutory provisions

regarding classifications and attainment dates under sections 172(a)

and 181(a), the court's ruling curtailed EPA's ability to require

States to comply with a more stringent ozone NAAQS. The EPA has

recommended to the Department of Justice that the government seek

rehearing on this and other portions of the court's opinion. However,

EPA also believes that unless and until the court's decision is revised

or vacated, EPA should not continue implementation efforts with respect

to the 8-hour standard that could be construed as inconsistent with the

court's ruling. This reservation would not apply to any EPA actions

based on the 1-hour standard.

2. Stay of Compliance Schedule for NOX SIP Call

On May 25, 1999, the D.C. Circuit issued a partial stay of the

submission of the SIP revisions required under the NOX SIP

call. The NOX SIP call had required submission of the SIP

revisions by September 30, 1999. State Petitioners challenging the

NOX SIP Call moved to stay the submission schedule until

April 27, 2000. The D.C. Circuit issued a stay of the SIP submission

deadline pending further order of the court. Michigan v. EPA, No. 98-

1497 (D.C. Cir. May 25, 1999) (order granting stay in part).

II. Proposal

Elsewhere in this issue of the Federal Register, EPA is publishing

an interim final stay of the April 30 NFR, effective from July 26,

1999, until November 30, 1999, to provide EPA time to address the

effects of these two decisions on the April 30 NFR. As discussed below,

EPA is proposing in this action to amend the April 30 NFR to address

the issues raised by the court's rulings. The EPA is only soliciting

comment on the specific changes proposed here in response to the

court's rulings. The EPA is not reopening the remainder of the April 30

NFR for public comment and reconsideration.

The EPA expects to promulgate a final rule based on this proposal

on or before November 30, 1999, when the interim stay expires. To

address the possibility of any delay of this final rulemaking, however,

EPA is also taking comment on an extension of the interim final stay of

the April 30 NFR in the event that EPA needs more time to complete the

final rule. The EPA does not expect to need to promulgate such an

extension, but if it were necessary, EPA anticipates that a two- or

three-month extension should suffice. Providing for a possible

extension, if necessary, ensures that the automatic trigger deadlines

now in place will not become effective through a lapse in the stay

before EPA completes this rulemaking. Under this schedule, the 3-year

compliance schedule for sources subject to an affirmative finding would

still be triggered in time to ensure that the intended emissions

reductions are achieved by the start of the 2003 ozone season, as

described in the April 30 NFR.

A. Indefinite Stay of Technical Determinations Based on the 8-Hour

NAAQS Pending Further Litigation Developments

The EPA's belief, as stated above, is that unless and until the

court's decision is revised or vacated, EPA should not continue

implementation efforts under section 126 with respect to the 8-hour

standard that could be construed as inconsistent with the court's

ruling. Given this position, EPA believes that the Agency should not

now move forward with findings under section 126 based on the 8-hour

standard. Thus, EPA is proposing to stay indefinitely the affirmative

technical determinations based on the 8-hour standard, pending further

developments in the NAAQS litigation.1 This stay would

affect the 8-hour petitions filed by the States of Maine,

Massachusetts, Pennsylvania, New Hampshire, and Vermont. This stay

would also affect the affirmative technical determinations under the 8-

hour NAAQS made for sources located in the following States and the

District of Columbia: Alabama, Connecticut, Delaware, Illinois,

Indiana, Kentucky, Maryland, Massachusetts, Michigan, Missouri, North

Carolina, New Jersey, New York, Ohio, Pennsylvania, Rhode Island,

Tennessee, Virginia, and West Virginia. EPA made affirmative technical

determinations only under the 8-hour NAAQS, and not under the 1-hour

NAAQS for sources located in seven of these States. The seven states

are Alabama, Connecticut, Illinois, Massachusetts, Missouri, Rhode

Island, and Tennessee. This proposal would not affect EPA's affirmative

technical determinations under the 1-hour standard, which apply to

sources located in the following twelve States and the District of

Columbia: Delaware, Indiana, Kentucky, Maryland, Michigan, North

Carolina, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West

Virginia.

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\1\ At this time, in light of the court's order staying the SIP

submission deadline under the NOX SIP call, EPA does not

see a need to take similar action for the 8-hour portions of the

NOX SIP call rule.

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B. Findings Under Section 126 and Removal of Trigger Mechanism Based on

NOX SIP Call Compliance Deadlines

In light of the court's decision staying the compliance schedule

for the NOX SIP call, EPA believes it is no longer

appropriate to link its findings under section 126 to the compliance

schedule for the NOX SIP call by deferring making final

findings as long as States and EPA are meeting a schedule based on that

schedule. EPA believed that, while not explicitly contemplated by the

statutory language, its initial approach was a reasonable way to

address the requirement to act on the section 126 petitions in the same

general timeframe as that in which States were required to comply with

the NOX SIP call. Under this approach, EPA gave upwind

States an opportunity to address the ozone transport problem

themselves, but did not delay implementation of the remedy beyond May

1, 2003. The EPA had determined that requiring controls to be in place

for the 2003 summer ozone season, i.e., by May 1, 2003, would bring

about downwind compliance ``as expeditiously as practicable,'' as

required by Title I, and would require sources emitting in violation of

the prohibition of section 110 to reduce emissions ``as expeditiously

as practicable,'' as required by section 126. Now, in the absence of

any requirement that States submit SIP revisions under the

NOX SIP call by September 30, 1999, as previously required,

it is highly unlikely that most States will submit such revisions in

time for EPA to propose approval by November 30, 1999, and finalize

approval by May 1, 2000. Because there is no schedule for compliance

with the NOX SIP call, there is no longer a basis for the

automatic

[[Page 33965]]

trigger deadlines provided in the final rule.

The EPA also does not believe it would be appropriate to further

defer action on the section 126 petitions pending resolution of the

NOX SIP call litigation. There is no specific deadline for

the court to issue a decision in the litigation. It is possible that

the litigation would not be resolved in time for EPA to make findings

under section 126 by May 1, 2000, as EPA has determined would be

necessary to require sources to comply with the remedy by May 1, 2003.

The EPA has determined that sources are able to come into compliance

with the section 110 requirement by May 1, 2003. Thus, delay beyond

that date would not be consistent either with the section 126

requirement that sources achieve reductions as expeditiously as

practicable or with the maximum three year timeframe for sources to

achieve reductions contemplated by section 126. In the April 30 NFR EPA

explained why it made sense to provide a short delay in making the

final findings, given the NOX SIP call deadlines. This was a

practical way to address the overlap between the actions that would be

required under the NOX SIP call and under the section 126

petitions. Under the circumstances, this coordinated approach

implemented two separate statutory provisions in a manner that

attempted to carry out Congress' intent for each provision, without

interpreting one as overriding the other. However, delaying action

under section 126 without explicit and expeditious deadlines for making

the findings would in effect subordinate section 126 to section 110.

This approach would deny downwind States the remedy provided by section

126 within the timeframes clearly specified in that section. The EPA

does not believe that the plain language of the statute supports such

an approach.

In light of these circumstances, it no longer makes sense to defer

final action on the petitions and provide an automatic trigger

mechanism tied to a schedule for action on SIP revisions responding to

the NOX SIP call. Thus, EPA is proposing to delete the

automatic trigger mechanism for making findings and instead simply take

final action making findings and granting or denying the

petitions.2 Specifically, for those sources for which it has

made affirmative technical determinations, EPA is proposing to find

that the sources are emitting in violation of section

110(a)(2)(D)(i)(I) and grant those portions of the petitions.

Consistent with these proposed findings, EPA is proposing to remove the

automatic trigger mechanism that provided that EPA would have made a

finding that sources were emitting in violation of section

110(a)(2)(D)(i)(I) as of November 30, 1999 or as of May 1, 2000 if EPA

had not proposed and finalized approval of SIP revisions complying with

the NOX SIP call (or promulgated a FIP) by those dates.

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\2\ Under today's proposal, these findings would not be

effective with respect to the sources in the seven states for which

EPA is proposing to stay the affirmative technical determinations,

i.e., those sources for which the determinations were based on the

8-hour standard.

---------------------------------------------------------------------------

The EPA is not proposing to change one aspect of the automatic

trigger mechanism established in the April 30 NFR. This provision would

apply not on any particular date, but in the situation where EPA has

made a finding under section 126, but the State has subsequently

submitted and EPA has approved a SIP revision complying with the

NOX SIP call (or EPA has promulgated a FIP). This situation

would arise if a state voluntarily chooses to revise its SIP consistent

with the NOX SIP call, including using the compliance date

of May 1, 2003. The final rule provided that after a finding has been

made with respect to a particular source or group of sources, the

finding will be deemed to be withdrawn, and the corresponding part of

the relevant petitions denied, if EPA approves a SIP revision or

promulgates a FIP for the relevant State that complies with the

NOX SIP call, including the compliance dates specified in

the NOX SIP call. The EPA is not proposing to change this

provision. See 64 FR 28275 for further discussion.

III. Status of Upcoming Related Actions

A. Section 126 Control Remedy NFR

The EPA proposed to implement a new Federal NOX Budget

Trading Program as the section 126 control remedy (63 FR 56292; October

21, 1998). The program will apply to all sources for which EPA makes a

final section 126 finding. The EPA intended to finalize all aspects of

the section 126 remedy by April 30, 1999. However, as discussed in the

April 30 NFR, EPA needed additional time to evaluate the numerous

comments it received on the trading program proposal and the source-

specific emission inventory data. In the April 30 NFR, EPA finalized

the general parameters of the section 126 remedy, including the

decision to implement a capped, market-based trading program,

identification of the sources subject to the program, specification of

the basis for the total tonnage cap, and specification of the

compliance date. The EPA committed to finalizing the details of the

trading program, including the unit-by-unit allocations by July 15,

1999.

As discussed in Section I.E. of the April 30 NFR, EPA entered into

a consent decree with the petitioning States that, among other things,

committed the EPA to issuing a final section 126 remedy by April 30,

1999. In order to satisfy that consent decree, EPA promulgated, on an

interim basis, emission limitations that would be imposed on individual

sources only in the event a finding under section 126 was automatically

deemed made and EPA had not yet finalized the Federal NOX

Budget Trading Program regulations. The EPA emphasized it did not

expect this default remedy, set forth in section 52.34(k), ever to be

applied because the trading program would be finalized in July 1999,

while the earliest a section 126 finding would be made was November 30

of the same year.

Because of the need to conduct this further rulemaking to address

the impact of the recent court decisions on the section 126 rulemaking,

EPA will be delaying the promulgation of the Federal NOX

Budget Trading Program for a short period of time. The EPA now intends

to finalize the trading program and make the section 126 findings in

the same rulemaking action. At that time, EPA would delete the default

remedy from the rule. Therefore, under these new circumstances, the

default remedy would also never be applied.

B. New Petitions

The EPA has recently received three additional section 126

petitions from the States of New Jersey (dated April 14, 1999),

Maryland (dated April 29, 1999), and Delaware (dated June 8, 1999).

(See Docket A-99-21.) These petitions seek findings under both the 1-

hour and 8-hour standards for large EGUs and large non-EGUs located in

specified upwind States. The EPA is currently developing a schedule to

take action on at least the 1-hour portions of these new section 126

petitions. Under section 126, EPA is required to take action to grant

or deny the petitions within 60 days of receipt. However, section

307(d) of the CAA authorizes EPA to extend the timeframe for action up

to 6 months if EPA determines that the extension is necessary to meet

the CAA's rulemaking requirements. The EPA has issued a final rule

determining that a 6-month extension for action on these petitions is

necessary to allow EPA adequate time to develop the proposals and to

provide the public sufficient time to comment. The EPA is also

evaluating these

[[Page 33966]]

petitions in light of the recent Court decisions.

IV. Administrative Requirements

A. Executive Order 12866: Regulatory Impact Analysis

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether a 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.

The EPA believes that this action is not a ``significant regulatory

action.''

B. Impact on Small Entities

The Regulatory Flexibility Act (RFA), as amended by the Small

Business Regulatory Enforcement Fairness Act (SBREFA), provides that

whenever an agency is required to publish a general notice of proposed

rulemaking, it must prepare and make available an initial Regulatory

Flexibility Analysis, unless it certifies that the proposed rule, if

promulgated, will not have ``a significant economic impact on a

substantial number of small entities.''

This proposal, if promulgated, will not have a significant impact

on a substantial number of small entities because it does not create

any new requirements.

With respect to the affirmative technical determinations based on

the 8-hour standard, this proposal would stay the effectiveness of

those determinations, thereby relieving regulatory requirements.

With respect to the deletion of the automatic trigger mechanism for

making findings under section 126 for sources for which EPA has made

affirmative technical determinations and the replacement of the

automatic trigger with findings in the final rule, the regulatory

requirements on sources would be unaffected by this proposed action.

Because States are no longer subject to schedule for compliance

established in the NOX SIP call, it is extremely likely that

under the April 30 NFR, the findings under section 126 for all sources

for which EPA has made affirmative technical determinations would be

automatically triggered on November 30, 1999. Making a final finding

through a separate rulemaking by November 30, 1999, rather than an

automatic finding under the existing rule, makes no practical

difference whatsoever for the resulting regulatory requirements.

Therefore, because this proposal does not create any new

requirements, I certify that this action will not have a significant

economic impact on a substantial number of small entities.

C. 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, 2

U.S.C. 1532, EPA generally must prepare a written statement, including

a cost-benefit analysis, for any proposed or final rule that ``includes

any Federal mandate that may result in the expenditure by State, local,

and tribal governments, in the aggregate, or by the private sector, of

$100,000,000 or more * * * in any one year.'' A ``Federal mandate'' is

defined to include a ``Federal intergovernmental mandate'' and a

``Federal private sector mandate'' (2 U.S.C. 658(6)). A ``Federal

intergovernmental mandate,'' in turn, is defined to include a

regulation that ``would impose an enforceable duty upon State, local,

or tribal governments (2 U.S.C. 658(5)(A)(i)), except for, among other

things, a duty that is ``a condition of Federal assistance (2 U.S.C.

658(5)(A)(i)(I)). A ``Federal private sector mandate'' includes a

regulation that ``would impose an enforceable duty upon the private

sector,'' with certain exceptions (2 U.S.C. 658(7)(A)).

The EPA has determined that this action does not include a Federal

mandate that may result in estimated costs of $100 million or more to

either State, local, or tribal governments in the aggregate, or to the

private sector. This 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.

D. Paperwork Reduction Act

This action does not propose any new information collection

requirements. Therefore, an Information Collection Request document is

not required.

E. Executive Order 13045: Protection of Children From Environmental

Health Risks and Safety Risks

The Executive Order 13045 applies to any rule that EPA determines

is (1) ``economically significant'' as defined under Executive Order

12866, and (2) addresses an environmental health or safety risk that

has 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

proposal is not subject to Executive Order 13045, entitled ``Protection

of Children from Environmental Health Risks and Safety Risks'' (62 FR

19885, April 23, 1997), because it is not economically significant

under E.O. 12866 and does not involve decisions on environmental health

risks or safety risks that may disproportionately affect children.

F. Executive Order 12898: Environmental Justice

Executive Order 12898 requires that each Federal agency make

achieving environmental justice part of its mission by identifying and

addressing, as appropriate, disproportionately high and adverse human

health or environmental effects of its programs, policies, and

activities on minorities and low-income populations. In the April 30

NFR, the Agency referred to an analysis it conducted in conjunction

with the final NOX SIP call rulemaking. This was a general

analysis of the potential changes in ozone and PM levels that may be

experienced by minority and low-income populations as a result of the

NOX SIP call. The findings from this analysis are presented

in volume 2 of the RIA for the NOX SIP call. (Office of Air

& Radiation Docket, #A-96-56, VI-B-09(vvvv), Regulatory Impact Analysis

for the NOX SIP Call, FIP, and section 126 Petitions. Volume

2, Health and Welfare Benefits. December 1998. EPA-452/R-98-003.)

G. Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal

[[Page 33967]]

government provides the funds necessary to pay the direct compliance

costs incurred by those governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 12875

requires EPA to provide to OMB a description of the extent of EPA's

prior consultation with representatives of affected State, local and

tribal governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's action does not propose a mandate on State, local or tribal

governments. The action does not propose any enforceable duties on

these entities. Accordingly, the requirements of section 1(a) of E.O.

12875 do not apply to this rule.

H. Executive Order 13084: Consultation and Coordination With Indian

Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to OMB, in a separately identified section of

the preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected

officials and other representatives of Indian tribal governments ``to

provide meaningful and timely input in the development of regulatory

policies on matters that significantly or uniquely affect their

communities.''

Today's proposal does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not propose

any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this

rulemaking.

I. National Technology Transfer and Advancement Act

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

Act of 1995 (NTTAA), Pub. L. No. 104-113, directs EPA to use voluntary

consensus standards in its regulatory activities unless to do so would

be inconsistent with applicable law or otherwise impractical. Voluntary

consensus standards are technical standards (e.g., materials

specifications, test methods, sampling procedures, and business

practices) that are developed or adopted by voluntary consensus

standards bodies. The NTTAA directs EPA to provide Congress, through

OMB, explanations when the Agency decides not to use available and

applicable voluntary consensus standards.

This action does not propose any new technical standards.

Therefore, NTTAA requirements are not applicable to today's proposal.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Emissions trading,

Nitrogen oxides, Ozone transport, Reporting and recordkeeping

requirements.

Dated: June 15, 1999.

Carol M. Browner,

Administrator.

For the reasons set forth in the preamble, part 52 of 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 (i) and (k) to

read as follows:

Sec. 52.34 Action on petitions submitted under section 126 relating to

emissions of nitrogen oxides.

* * * * *

(i) Action on petitions for section 126(b) findings.

(1) The Administrator finds that each existing or new major source

for which the Administrator has made an affirmative technical

determination as described in paragraphs (c) through (h) of this

section as to impacts on nonattainment or maintenance of a particular

NAAQS for ozone in a particular petitioning State, emits or would emit

NOX in violation of the prohibition of Clean Air Act section

110(a)(2)(D)(i)(I) with respect to nonattainment or maintenance of such

standard in such petitioning State.

(2) Notwithstanding any other provision of this paragraph (i), a

finding under paragraph (i)(1) of this section as to a particular major

source or group of stationary sources in a particular State will be

deemed to be withdrawn, and the corresponding part of the relevant

petition(s) denied, if the Administrator issues a final action putting

in place implementation plan provisions that comply with the

requirements of 40 CFR 51.121 and 51.122 for such State.

* * * * *

(k) Stay of affirmative technical determinations with respect to

the 8-hour standard. Notwithstanding any other provisions of this

subpart, the effectiveness of paragraphs (d), (e)(3) and (e)(4), (f),

(h)(3) and (h)(4) is stayed.

[FR Doc. 99-15829 Filed 6-23-99; 8:45 am]

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