Findings of Significant Contribution and Rulemaking on Section 126; Petitions for Purposes of Reducing Interstate Ozone Transport, Technical Correction, and Notice of Availability of Additional Technical Documents

SUMMARY: In accordance with section 126 of the Clean Air Act (CAA), EPA

is proposing action on recent requests from Maine and New Hampshire

which ask EPA to now make findings of significant contribution under

the 8-hour ozone standard regarding sources named in their August 1997

petitions. The EPA has previously proposed action on the petitions from

these States with respect to the 1-hour ozone standard as part of a

proposal on eight petitions that were submitted individually by eight

Northeastern States (63 FR 52213, September 30, 1998; and 63 FR 56292,

October 21, 1998). Today's action supplements that proposal.

These 8-hour petitions specifically request that EPA make a finding

that nitrogen oxides (NOX) emissions from certain stationary

sources in other States significantly contribute to 8-hour ozone

nonattainment problems in the petitioning State. If EPA makes such a

finding of significant contribution, EPA is authorized to establish

Federal emissions limits for the sources.

In this SNPR, EPA is proposing to find that portions of the Maine

and New Hampshire petitions are approvable with respect to the 8-hour

standard based solely on technical considerations. The EPA is proposing

that the technically approvable portions of the petitions be 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 State implementation plan call (NOX SIP

call). The control requirements that would apply to sources in source

categories for which a final finding will ultimately be granted were

proposed in the October 21, 1998 notice of proposed rulemaking (NPR).

The EPA is also proposing to deny portions of the petitions with

respect to the 8-hour standard.

This SNPR also corrects inadvertent errors in Table II-1 and the

part 52 regulatory text in the October 21, 1998 NPR.

In addition, today's SNPR provides notice of the availability of

additional technical documents that have recently been placed in the

NOX SIP call docket.

The transport of ozone and its precursors is important because

ozone, which is a primary harmful component of urban smog, has long

been recognized, in both clinical and epidemiological research, to

adversely affect public health.

DATES: The comment period on this SNPR ends on April 11, 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 March 12, 1999 in

Washington, DC, if requested. 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 Docket Office, at the above address, between 8:00 a.m. and 5:30

p.m., Monday though Friday, excluding legal holidays. A reasonable

copying fee may be charged for copying.

The public hearing, if there is one, will be held at the EPA

Auditorium at 401 M Street SW, Washington, DC, 20460.

FOR FURTHER INFORMATION CONTACT: Questions concerning today's SNPR

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, email

[email protected].

SUPPLEMENTARY INFORMATION:

Public Hearing

The EPA will conduct a public hearing on the section 126 SNPR on

March 5, 1999 beginning at 11:00 a.m., if requested by March 1, 1999.

The EPA will not hold a hearing if one is not requested. Please check

EPA's webpage at http://www.epa.gov/airlinks on March 2, 1999 for the

announcement of whether the hearing will be held. If there is a

hearing, it 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, email

[email protected] no later than March 1, 1999. Oral testimony will

be limited to 5 minutes each. Any member of the public may file a

written statement before, during, or 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 also 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 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

CBI, is available for inspection from 8:00 a.m. to 4:00 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. Electronic comments can be sent directly to EPA at: A-and-R-

D[email protected]. 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 in 5.1/6.1 file format or ASCII file format. All comments

and data in electronic form must be identified by the docket number A-

97-43. Electronic comments on this SNPR may be filed online at many

Federal Depository Libraries.

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

[[Page 10343]]

Region for Purposes of Reducing Regional Transport of Ozone'' (63 FR

57357, October 27, 1998) (see notices included in the docket for this

rulemaking). The rulemaking docket for that rule (Docket No. A-96-56),

hereafter referred to as the NOX SIP call, contains

information and analyses that are relied upon in the section 126 NPR

and today's supplemental proposal on the Maine and New Hampshire

petitions. Documents II-L-01 and II-L-02 in the docket for today's

action describe which documents in the NOX SIP call docket

are included by reference. Documents related to the NOX SIP

call rulemaking are available for inspection in docket number A-96-56

at the address and times given above. In addition, the proposed

NOX SIP call and associated documents are located at http://

www.epa.gov/ttn/oarpg/otagsip.html. Modeling and air quality assessment

information can be obtained in electronic form at http://

www.epa.gov.scram001/regmodcenter/t28.htm. Information related to the

budget development can be found at http://www.epa.gov/capi.

Additional information relevant to this SNPR concerning the Ozone

Transport Assessment Group (OTAG) is available on the web at http://

www.epa.gov/ttn/. If assistance is needed in accessing the system, call

the help desk at (919) 541-5384 in Research Triangle Park, NC.

Documents related to OTAG can be downloaded directly from OTAG's

webpage at http://www.epa.gov/ttn/otag. The OTAG's technical data are

located at http://www.iceis.mcnc.org/OTAGDC.

Outline

I. Background

A. Summary of Petitions

B. Rulemaking Schedule

II. Proposed Action on the 8-Hour Petitions

A. Technical Determinations

B. Action on Whether to Grant or Deny the 8-Hour Petitions

1. Portion of the Petitions for Which EPA is Proposing an

Affirmative Technical Determination

2. Portion of the Petitions for Which EPA is Proposing a Denial

C. Requirements for Sources for Which EPA Makes a Section 126(b)

Finding

III. Corrections and Clarifications to October 21, 1998 NPR

IV. Notice of Availability of Additional Technical Documents

V. 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. Summary of Petitions

In August 1997, New Hampshire, Maine, and six other Northeastern

States filed petitions under section 126 seeking to mitigate what they

described as significant transport of one of the main precursors of

ground-level ozone, NOX, across State boundaries. All of the

petitioning States directed their petitions at the 1-hour ozone

standard. Three of the States, Massachusetts, Pennsylvania, and

Vermont, also directed their petitions at the new 8-hour ozone

standard. In notices dated September 30, 1998 (63 FR 52213) and October

21, 1998 (63 FR 56292), EPA proposed action on the petitions. The

October 21, 1998 NPR contains the longer, more detailed version of the

proposal. Familiarity with that notice is assumed for purposes of

today's SNPR. In the NPR, EPA proposed action under the 1-hour and/or

the 8-hour standard as specifically requested in each State's petition.

At that time, the Maine and New Hampshire petitions were only directed

at the 1-hour standard. Therefore, EPA believed the Agency was not

authorized to evaluate impacts of the emissions of the named upwind

sources on 8-hour nonattainment problems in Maine and New Hampshire.

Maine 8-Hour Petition

On November 30, 1998, Maine requested that EPA make findings of

significant contribution under the 8-hour standard based on information

in its 1997 section 126 petition. Maine did not request any other

changes to its original petition. Therefore, the geographic scope of

the petition and the named sources and source categories to be

considered are the same for the 8-hour standard as the 1-hour standard.

The Maine petition identifies ``electric utilities and steam-

generating units having a heat input capacity of 250 mmBtu/hr or

greater'' that are located within 600 miles of Maine's ozone

nonattainment areas as significantly contributing to nonattainment and

maintenance problems in Maine. The geographic area covered by the Maine

petition includes all or parts of Connecticut, Delaware, District of

Columbia, Maryland, Massachusetts, New Jersey, New York, New Hampshire,

North Carolina, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia,

and West Virginia.

The Maine petition requests that EPA establish an emissions

limitation of 0.15 lb/mmBtu for electric utilities and establish the

Ozone Transport Commission Memorandum of Understanding's (on

NOX reductions) level of control for steam generating units,

in a multistate cap-and-trade NOX market system.

New Hampshire Petition

On November 30, 1998, New Hampshire submitted a request that EPA

make findings of significant contribution with respect to the 8-hour

ozone standard based on information in its 1997 petition. New Hampshire

did not request any other changes in its original petition. Therefore,

the geographic scope of the petition and the named sources and source

categories to be considered are the same for the 8-hour standard as the

1-hour standard.

The New Hampshire section 126 petition identified ``fossil fuel-

fired indirect heat exchange combustion units and fossil fuel-fired

electric generating facilities which emit ten tons of NOX or

more per day'' that are located in the Ozone Transport Region (OTR)

States and OTAG Subregions 1-7 as significantly contributing to

nonattainment in, or interfering with maintenance by, New Hampshire.

The geographic area covered includes all or parts of Connecticut,

Delaware, District of Columbia, Illinois, Indiana, Iowa, Kentucky,

Maine, Massachusetts, Maryland, Michigan, Missouri, New Jersey, New

York, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee,

Vermont, Virginia, West Virginia, and Wisconsin.

The New Hampshire petition requests that EPA establish compliance

schedules and emissions limitations no less stringent than: (1) Phase

III of the Ozone Transport Commission Memorandum of Understanding on

NOX reductions; and/or (2) 85 percent reductions from the

projected 2007 baseline; and/or (3) an emission rate of 0.15 lb/mmBtu.

B. Rulemaking Schedule

Section 126(b) generally requires EPA to make the requested finding

or deny the petition within 60 days of receipt. It also requires EPA to

provide the opportunity for a public hearing for the petition. In

addition, EPA's action under section 126 is subject to the procedural

requirements of section 307(d) of the CAA. One of these requirements is

notice-and-comment rulemaking and

[[Page 10344]]

providing an opportunity for public hearing.

As discussed in Section I.E. of the NPR, on February 25, 1998, the

eight petitioning States filed a complaint in the U.S. District Court

for the Southern District of New York to compel EPA to take action on

the States' section 126 petitions that were submitted in August 1997

(State of Connecticut v. Browner, No. 98-1376). The EPA and the eight

States filed a proposed consent decree to establish the rulemaking

schedule. The court accepted a modified version of the consent decree

on October 26, 1998.

The schedule in the consent decree requires EPA to take final

action on at least the technical merits of the August 1997 petitions by

April 30, 1999. The consent decree further permits EPA to structure the

final action it would take by April 30, 1999 so as to defer the

granting or denial of the petitions to certain later dates extending to

as late as May 1, 2000, pending certain actions by EPA and the States

in response to the NOX SIP call. In the NPR, EPA proposed to

take this form of alternative final action.

The consent decree does not apply to the later November 30, 1998 8-

hour petitions. However, for the sake of efficiency and certainty, EPA

intends to take final action on these new petitions along with the

final action on the rest of the petitions. Further, EPA is proposing to

structure the final action on the Maine and New Hampshire 8-hour

petitions according to the same terms and schedule as was proposed for

the other petitions (see Section II.A.2.c and II.F.2 of the NPR).

II. Proposed Action on the 8-Hour Petitions

In evaluating the Maine and New Hampshire petitions under the 8-

hour standard, EPA is applying the analytical approach proposed in the

section 126 NPR as the applicable test under section 126 (see Section

II of the NPR). The approach relies on conclusions drawn in the final

NOX SIP call.

The EPA's proposed action consists of three components: (1)

technical determinations of whether upwind sources or source categories

named in the petitions significantly contribute to nonattainment or

interfere with maintenance of the 8-hour ozone standard in the relevant

petitioning State; (2) for those sources for which EPA is proposing an

affirmative technical determination, action specifying when a finding

that such sources emit or would emit in violation of the section

110(a)(2)(D)(i)(I) prohibition will be deemed made or not made (or made

but subsequently withdrawn) and, thus, when a petition will be deemed

granted or denied (or granted but subsequently denied) for purposes of

section 126(b); and (3) the specific emissions-reduction requirements

that will apply when such a finding is deemed made. Each of these

proposed actions is described below.

A. Technical Determinations

Using the NPR approach for making determinations on the technical

merits of the petitions, EPA first looked to see which States named in

the petitions contribute significantly to 8-hour nonattainment or

maintenance problems in the petitioning State. These linkages were

established in the NOX SIP call and are summarized in Table

1 below.

Table 1.--Named Upwind States Which Contain Sources that Significantly

Contribute to 8-Hour Nonattainment in Petitioning State

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

Named upwind states that

Petitioning state significantly contribute

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

Maine.................................. CT, DE, DC, MD, MA, NJ, NY, NC,

PA, RI, VA

New Hampshire.......................... CT, DE, DC, MD, MA, NJ, NY, OH

PA, RI

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

In the next step, EPA determined which of the named major

stationary NOX sources or source categories in the linked

States may emit in violation of the prohibition in section

110(a)(2)(D)(i) because they emit in amounts that contribute

significantly to nonattainment in, or interfere with maintenance by,

the petitioning State. For this, EPA proposed in the NPR to use its

analysis of highly cost-effective measures from the NOX SIP

call. Thus, if EPA identified highly cost-effective measures for a

particular source category in the NOX SIP call, then EPA

proposed to make an affirmative ``technical determination'' for that

category. The highly cost-effective control measures are discussed in

Section II.C of the NPR and are summarized in Table 2 below.

Table 2.--Summary of Feasible, Highly Cost-Effective NOx Control

Measures

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

Subcategory Control measures

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

Large EGUsa....................... State-by-State ozone season

emissions level (in tons) based on

applying a NOx emission rate of

0.15 lb/mmBtu on all applicable

sources

Large Non-EGUsa................... State-by-State ozone season

emissions level (in tons) based on

applying a 60 percent reduction

from uncontrolled emissions on all

applicable sources

Large Process Heaters............. No additional controls highly cost

effective

Small Sources..................... No additional controls highly cost

effective

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

a The definitions of ``large EGUs'' and ``large non-EGUs'' for purposes

of this rulemaking are given in the applicability section of the

proposed part 97 regulation in the NPR and clarified in a December 24,

1998 Federal Register notice (63 FR 71220), and a January 13, 1999

Federal Register notice (64 FR 2418).

In short, EPA is proposing today to make affirmative technical

determinations of significant contribution (or interference) for those

large electricity generating units (EGUs) and non-EGUs for which highly

cost-effective controls are available (as shown in Table 2), to the

extent those sources are located in one of the linked States named in

the relevant petition (as shown in Table 1).

For all named sources that are located in States that are not

linked to New Hampshire or Maine and for sources that are located in

linked States but for which highly cost- effective controls are not

available, EPA is proposing to deny the petitions. For States not

linked to New Hampshire or Maine, EPA's basis for this denial is (i)

for certain States, based on a proposed negative technical

determination because EPA determined in the NOx SIP call

that the States are not linked to New Hampshire or Maine; and (ii) for

other States, based on EPA's inability to make an affirmative technical

determination due to inadequate information.

More specifically, in addition to those listed in Table 1 above

(and those noted below), the New Hampshire 8-hour petition identifies

all or parts of the following States: Illinois, Indiana, Kentucky,

Michigan, Missouri, North

[[Page 10345]]

Carolina, Tennessee, West Virginia, and Wisconsin. The EPA is proposing

a negative technical determination with respect to sources in these

States for the New Hampshire 8-hour petition because in the

NOx SIP call, EPA determined that these States should not be

linked to New Hampshire. Therefore, EPA is proposing to deny this part

of the New Hampshire petition.

Similarly, in addition to those listed in Table 1 above (and those

noted below), the Maine 8-hour petition identifies all or parts of the

following States: Ohio and West Virginia. The EPA is proposing a

negative technical determination with respect to sources in these

States for the Maine 8-hour petition because in the NOx SIP

call, EPA determined that these States should not be linked to Maine.

Therefore, EPA is proposing to deny this part of the Maine petition.

The New Hampshire 8-hour petition also identifies all or parts of

the following States, in addition to those noted above: Iowa, Maine,

and Vermont. The Maine 8-hour petition also identifies all or parts of

the following States, in addition to those noted above: New Hampshire

and Vermont. In the NOx SIP call rule, EPA stated that it

did not have adequate modeling information to make a final

determination as to whether these States met the ``significant

contribution'' standard under section 110(a)(2)(D) (63 FR 57398,

October 27, 1998). In the section 126 NPR, EPA indicated that it

intended to conduct further modeling for New Hampshire, Vermont, and

Maine prior to taking final action on the section 126 rule (63 FR

56304, 56308, October 21, 1998). As discussed below, EPA is in the

process of informing Iowa, Maine, New Hampshire, and Vermont (among

others) that the Agency does not intend to do additional modeling prior

to completion of this rulemaking by the required date of April 30,

1999. Accordingly, for the present, EPA is obliged to deny, on grounds

of inadequate information, the portions of the New Hampshire and Maine

section 126 petitions that request an affirmative finding for those

four States.

The regulatory text accompanying today's SNPR sets forth each of

the proposed findings and affirmative technical determinations for

sources named in the Maine and New Hampshire 8-hour petitions.

All the source categories in named States for which EPA is

proposing an affirmative technical determination in today's SNPR have

already received a proposed affirmative technical determination of

significant contribution in the section 126 NPR with respect to the New

Hampshire and Maine 1-hour petitions and/or one or more of the other

petitions. Appendix A to proposed part 97 in the October 21, 1998 NPR

lists all existing sources for which EPA proposed to make an

affirmative technical determination with respect to at least one

petitioning State.

B. Action on Whether to Grant or Deny the 8-Hour Petitions

1. Portion of the Petitions for Which EPA Is Proposing an Affirmative

Technical Determination

For the portions of the Maine and New Hampshire petitions for which

EPA is proposing an affirmative technical determination, EPA proposes

to issue the type of final action described in Section II.A.2.c. of the

NPR for the reasons given in that section. Under that approach, the

portions of the petitions for which EPA makes an affirmative technical

determination would be 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. The schedule allows

States the opportunity to develop and submit plans to reduce

NOx transport before EPA would make any final findings under

section 126. The schedule and conditions under which the applicable

final findings on the petitions would be triggered are discussed in

Section II.F.2 of the NPR.

2. Portion of the Petitions for Which EPA Is Proposing a Denial

Consistent with the overall approach, EPA is proposing that the

sources for which EPA makes a negative technical determination (as

described above) do not or would not emit in violation of the section

110(a)(2)(D)(i)(I) prohibition. As a result, EPA proposes to deny the

portions of the Maine and New Hampshire petitions relating to such

sources. In addition, EPA is proposing to deny the portions of the

Maine petition relating to sources located in New Hampshire and

Vermont, as well as the New Hampshire petition relating to sources

located in Iowa, Maine, and Vermont, due to the insufficiency of the

data as to whether emissions from such sources emit in violation of the

section 110(a)(2)(D)(i)(I) prohibition.

C. Requirements for Sources for Which EPA Makes a Section 126(b)

Finding

In the NPR, EPA proposed the requirements that would apply to any

new or existing major source or group of stationary sources for which a

section 126(b) finding is ultimately made. The emissions control

program is discussed in detail in Section III of the NPR and was

proposed as a new part 97 in title 40 of the Code of Federal

Regulations.

III. Corrections and Clarifications to October 21, 1998 NPR

Clarification to List of States Whose Sources Do Not Make a Significant

Contribution to Nonattainment in, or Interfere with Maintenance by, the

Petitioning States

In the NPR (63 FR 56303-04), EPA identified 11 States as containing

sources that do not make a significant contribution to nonattainment

in, or interfere with maintenance by, any of the petitioning States

under the 1- hour and/or the 8-hour ozone standards. The EPA listed

these States as Arkansas, Georgia, Iowa, Louisiana, Maine, Minnesota,

Mississippi, New Hampshire, South Carolina, Wisconsin, and Vermont. The

EPA added that it does not have the same information available for the

States of Maine, New Hampshire, and Vermont; that EPA intended to

conduct further analysis with respect to those States; and that if such

further analyses indicated that sources in any of those States

contributed significantly to a relevant petitioning State, EPA would

issue a supplemental notice of proposed rulemaking based on the new

information (63 FR 56304, 56308).

These statements are clarified as follows: Based on determinations

made in the NOx SIP call, the States of Georgia, South

Carolina, and Wisconsin should be treated as containing sources that do

not make a significant contribution to nonattainment in, or interfere

with maintenance by, any of the petitioning States under the 1- hour

and/or 8-hour ozone standards. As further indicated in the

NOx SIP call, for the remaining eight States of Arkansas,

Iowa, Louisiana, Maine, Minnesota, Mississippi, New Hampshire, and

Vermont, EPA does not, at this time, have sufficient information--that

is, adequate air quality modeling studies--to make a determination as

to whether or not those States make a significant contribution to, or

interfere with maintenance by, any of the petitioning States under the

two ozone standards. Moreover, EPA is in the process of informing those

eight States (along with other States in the midwest and south), that

EPA does not expect to conduct those modeling studies prior to taking

final action on the petitions by April 30, 1999. Accordingly, the NPR

is clarified to propose a denial for the portions of the section 126

petitions under either ozone standard that pertain to those eight

States on grounds of inadequate

[[Page 10346]]

information to demonstrate whether or not sources in those States do

contribute significantly to, or interfere with maintenance by, any of

the petitioning States.

Correction to Table II-1 of the NPR \1\

When EPA published Table II-1 in the NPR, EPA inadvertently left

off Ohio as being a significant contributor to New Hampshire under the

1-hour standard. In addition, asterisks were inadvertently left off of

Michigan and North Carolina where the States were listed as significant

contributors to Connecticut. These errors are corrected in the version

of the table shown below.

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

\1\ See discussion below, in ``Additional Notice to Reopen

Comment Period.''

Table II-1.--[from the NPR]. Named Upwind States which Contain Sources

that Contribute Significantly to 1-Hr Nonattainment in Petitioning

States.

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

Petitioning State (Nonattainment Area) Named Upwind States

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

New York............................... DE, DC, IN, KY, MD, MI, NC, NJ,

OH, PA, VA, WV

Connecticut............................ DE, DC, IN*, KY*, MD, MI*, NC*,

NJ, NY, OH, PA, VA, WV

Pennsylvania........................... NC, OH, VA, WV

Massachusetts.......................... OH, WV

Rhode Island........................... OH, WV

Maine.................................. CT, DE, DC, MD, MA, NJ, NY, PA,

RI

New Hampshire.......................... CT, DE*, DC*, MA, MD*, NJ, NY,

OH*, PA, RI, VA*

Vermont................................ None

Total.................................. CT, DE, DC, IN, KY, MA, MD, MI,

NC, NJ, NY, OH, PA, RI, VA, WV

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

*Upwind States marked with an asterisk are included in the table because

they contribute to an interstate nonattainment area that includes part

of the petitioning State. Part of New Hampshire is included in the

Boston/Portsmouth nonattainment area; part of Connecticut is included

in the New York City nonattainment area.

Correction to Part 52 Regulatory Text 2

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

\2\ See discussion immediately below, in ``Additional Notice to

Reopen Comment Period.''

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

The Part 52 regulatory text in the NPR is corrected to list Ohio as

a significant contributor to New Hampshire under the 1-hour standard.

Additional Notice to Reopen Comment Period

The EPA is publishing, in the Federal Register, a separate notice

to reopen the comment period on the NPR to allow comment concerning the

effect of EPA's proposed determinations that the 1-hour ozone standard

no longer applies to certain areas in States that have submitted

section 126 petitions (63 FR 69598, December 17, 1998). If EPA

finalizes these determinations, EPA may then deny at least portions of

the section 126 petitions of those States. Under these circumstances,

EPA would revise Table II-1, above, and the accompanying regulatory

text, accordingly.

Drafting Revisions to Proposed Part 52 Regulatory Text

The proposed part 52 regulatory text language that EPA included in

the NPR contained provisions identifying EPA's proposed determinations

for both affirmative technical determinations and negative technical

determinations (63 FR 56327-32, October 21, 1998). Upon further

consideration, EPA believes that, purely as a matter of drafting, it is

not necessary to include regulatory text identifying negative technical

determinations or denials. The regulatory text is revised accordingly.

IV. Notice of Availability of Additional Technical Documents

In the section 126 NPR, EPA stated that all documents in the docket

for the NOx SIP call (Docket No. A-96-56) should be

considered as part of the docket for the section 126 rulemaking (Docket

No. A-97-43). The EPA has recently included in the NOx SIP

call docket various technical documents, including air quality and

economic modeling analyses, that had been inadvertently omitted from

that docket. These documents may be found in Sections VI-D and VI-F of

the NOx SIP call docket. A list of the documents is attached

as Appendix A to this notice. These documents have been incorporated by

reference into the docket for the section 126 rulemaking.

V. 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 considers today's SNPR to be one piece of its overall

proposal on the eight section 126 petitions. As discussed in the

October 21, 1998 NPR, the EPA believes that its action on the section

126 petitions is a ``significant regulatory action'' because it raises

novel legal and policy issues arising from the Agency's obligation to

respond to the petitions, and because the action could have an annual

effect on the economy of more than $100 million. As a result, the NPR

was submitted to OMB for review, and EPA prepared a regulatory impact

analysis (RIA) titled ``Regulatory Impact Analysis for the

NOx SIP Call, FIP, and Section 126 Petitions.'' This RIA

assesses the costs, benefits, and economic impacts associated with

federally-imposed requirements to mitigate NOx emissions

from sources contributing to downwind nonattainment of the ozone

national ambient air quality standards. Any written comments from OMB

to EPA and any written EPA response to those comments are included in

the docket. The docket is available for public inspection at the EPA's

Air Docket Section, which is listed in the ADDRESSES section of this

preamble. The RIA is available in hard copy by contacting the EPA

Library at the address under ``Availability of Related Information''

and in electronic form as discussed above in that same section. All of

the sources covered under the Maine and New Hampshire petitions with

respect to the 8-hour standard are also covered with respect to the

Maine and New Hampshire 1-hour petitions and/or one or more of the

other petitions and, therefore, were considered in the RIA analyses for

the NPR. This SNPR does not create any additional impacts beyond what

were proposed in the NPR, therefore, no additional RIA is needed.

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

[[Page 10347]]

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.''

In the process of developing the NPR, EPA worked with the Small

Business Administration (SBA) and OMB and obtained input from small

businesses, small governmental jurisdictions, and small organizations.

On June 23, 1998, EPA's Small Business Advocacy Chairperson convened a

Small Business Advocacy Review Panel under section 609(b) of the RFA as

amended by SBREFA. In addition to its chairperson, the panel consists

of EPA's Director of the Office of Air Quality Planning and Standards

within the Office of Air and Radiation, the Administrator of the Office

of Information and Regulatory Affairs within OMB, and the Chief Counsel

for Advocacy of the SBA.

As described in the NPR, this panel conducted an outreach effort

and completed a report on the section 126 proposal. The report provides

background information on the proposed rule being developed and the

types of small entities that would be subject to the proposed rule,

describes efforts to obtain the advice and recommendations of

representatives of those small entities, summarizes the comments that

have been received to date from those representatives, and presents the

findings and recommendations of the panel. The completed report,

comments of the small entity representatives, and other information are

contained in the docket for this rulemaking.

It is important to note that the panel's findings and discussion

are based on the information available at the time this report was

drafted. The EPA is continuing to conduct analyses relevant to the

proposed rule, and additional information may be developed or obtained

during the remainder of the rule development process. This SNPR does

not affect any additional sources or source categories beyond those

that are affected by the NPR. All of the sources covered by this SNPR

are already being considered in the SBREFA process that was initiated

for the NPR and, therefore, no separate SBREFA analysis is needed for

today's SNPR.

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 under section 421(6), 2 U.S.C. 658(6), to include a ``Federal

intergovernmental mandate'' and a ``Federal private sector mandate.'' A

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

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

or tribal governments,'' section 421(5)(A)(i), 2 U.S.C. 658(5)(A)(i),

except for, among other things, a duty that is ``a condition of Federal

assistance,'' section 421(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, section 421(7)(A),

2 U.S.C. 658(7)(A).

As discussed in the NPR, the EPA is taking the position that the

requirements of UMRA apply because EPA's action on the section 126

petitions could result in the establishment of enforceable mandates

directly applicable to sources (including sources owned by State and

local governments) that would result in costs greater than $100 million

in any 1 year. The UMRA generally requires EPA to identify and consider

a reasonable number of regulatory alternatives and adopt the least-

costly, most cost-effective or least-burdensome alternative that

achieves the objectives of the rule. The EPA's UMRA analysis,

``Unfunded Mandates Reform Act Analysis For the Proposed Section 126

Petitions Under the Clean Air Act Amendments Title I,'' is contained in

the docket for this action and is summarized in the NPR. Because this

SNPR does not create any additional mandates beyond what were proposed

in the NPR, no additional UMRA analysis is needed for today's SNPR.

D. Paperwork Reduction Act

The control requirements that would apply to any sources for which

a final section 126 finding is made were proposed in the October 21,

1998 NPR. This SNPR does not propose any additional control

requirements. The information collection requirements related to the

NPR control measures were submitted for approval to the OMB under the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information

Collection Request (ICR) document has been prepared by EPA (ICR No.

1889.01), and a copy may be obtained from Sandy Farmer, OPPE Regulatory

Information Division, US Environmental Protection Agency (2137), 401 M

St., SW, Washington, DC 20460 or by calling (202) 260-2740. See Section

V.D. of the NPR for a discussion of the ICR document.

E. Executive Order 13045: Protection of Children from Environmental

Health Risks and Safety Risks

Executive Order 13045 applies to any rule that EPA determines (1)

``economically significant'' as defined under Executive Order 12866,

and (2) the environmental health or safety risk addressed by the rule

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

proposed rule 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 does not involve

decisions on environmental health risks or safety risks that may

disproportionately affect children.

In accordance with section 5(501), the Agency has evaluated the

environmental health or safety effects of the rule on children and

found that the rule does not separately address any age groups.

However, in conjunction with the final NOx SIP call

rulemaking, the Agency has conducted a general analysis of the

potential changes in ozone and PM levels experienced by children as a

result of the NOx SIP call; these findings are presented in

the RIA. The findings include population-weighted exposure

characterizations for projected 2007 ozone and PM concentrations. The

population data includes a census-derived subdivision for the under 18

group. This analysis generally applies to the section 126 proposal

because the section 126 action is a subset of the NOx SIP

call.

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 conjunction

with the final NOx SIP call

[[Page 10348]]

rulemaking, the Agency has conducted 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; these findings are presented in the RIA. The findings include

population-weighted exposure characterizations for projected ozone

concentrations and PM concentrations. The population data includes

census-derived subdivisions for whites and non-whites, and for low-

income groups. These findings generally apply to the section 126

proposal because the section 126 action is a subset of the

NOx SIP call.

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 government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If the mandate is

unfunded, EPA must provide 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.''

The EPA has concluded that the rulemaking on the eight section 126

petitions may create a mandate on State and local governments, and that

the Federal government will not provide the funds necessary to pay the

direct costs incurred by the State and local governments in complying

with the mandate. In order to provide meaningful and timely input in

the development of this regulatory action, EPA sent letters to five

national associations whose members include elected officials. The

letters provided background information, requested the associations to

notify their membership of the proposed rulemaking, and encouraged

interested parties to comment on the proposed actions by sending

comments during the public comment period and presenting testimony at

the public hearing on the proposal. Any comments will be taken into

consideration as the action moves toward final rulemaking.

Furthermore, for the section 126 rulemaking, EPA published an

Advance Notice of Proposed Rulemaking that served to provide notice of

the Agency's intention to propose emissions limits and to solicit early

input on the proposal. This process helped to ensure that small

governments had an opportunity to give timely input and obtain

information on compliance.

This SNPR does not affect any additional sources or source

categories beyond those that are affected by the NPR. Therefore, all of

the sources covered by this SNPR were already considered in the

consultation process with State, local, and tribal governments that was

conducted for the NPR, and no separate consultation process is needed

for today's SNPR.

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 government

provides the funds necessary to pay the direct compliance costs

incurred by the tribal governments. If the mandate is unfunded, EPA

must 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 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 SNPR does not significantly or uniquely affect the

communities of Indian tribal governments and, in any event, will not

impose substantial direct compliance costs on such communities. The EPA

is not aware of sources located on tribal lands that could be subject

to the requirements EPA is proposing in this notice. Accordingly, the

requirements of section 3(b) of Executive Order 13084 do not apply.

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.

The control requirements that would apply to any sources for which

a final section 126 finding is made with respect to today's action were

proposed in the October 21, 1998 NPR. This SNPR does not propose any

additional control requirements. As discussed in Section V.I of the

NPR, the control requirements incorporate a number of voluntary

consensus standards.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Emissions trading,

Nitrogen oxides, Ozone transport, Reporting and recordkeeping

requirements.

Dated: February 25, 1999.

Carol M. Browner,

Administrator.

Appendix A to the Preamble--Availability of Additional Technical

Documents

The following tables list the documents that have recently been

placed in Sections VI-D and VI-F of the NOX SIP call docket

(Docket No. A-96-56).

Table A-1.--Additions to Section VI-D of Docket No. A-96-56

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

Commenter, Addressee, Title or

Document Number Description

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

VI-D-05........................... Draft--Summary of Revised 2007 Base

and Budget Seasonal NOX Emissions

VI-D-06........................... Technical Support Document on

Development of Modeling Inventory

and Budgets for the Ozone Transport

SIP Call

[[Page 10349]]

VI-D-07........................... Draft Appendices for Revised Budget

Calculations for Electric

Generation Sources

VI-D-08........................... Explanation of Revised Budget

Calculations

VI-D-09........................... Draft Appendices for Revised Budget

Calculations for Non-Electric

Generation Point Sources

VI-D-10........................... Revised Draft Utilization

Information for Electricity

Generators Used in Budget

Calculations for the Proposed SIP

Call

VI-D-11........................... Road Map to IPM Run Files for the

Proposed Ozone Transport Rulemaking

VI-D-12........................... Data Used to Determine State-

Specific Electricity Generator

Growth Used in the Ozone Transport

Rulemaking

VI-D-13........................... Summary of State-Specific 1996-2007

Growth Factors for Electricity

Generating Units in the SIP Call

Region

VI-D-14........................... Segments of five IPM runs used to

prepare the electric power industry

emissions reduction and cost

analysis in the Supplemental Ozone

Transport Rulemaking Regulatory

Analysis

VI-D-15........................... Estimates of Annual Incremental

Costs of Combustion Control on Coal-

Fired Units that are Part of EPA's

Estimates of Compliance Costs for

the SNPR

VI-D-16........................... Initial Base Case--Winter 1998

Electricity Demand Forecast, SIPJ

VI-D-17........................... 0.15 Trading--Winter 1998

Electricity Demand Forecast, SIP2

VI-D-18........................... Final Base Case--Winter 1998

Electricity Demand Forecast, SIP5--

2

VI-D-19........................... Initial Base Case--Summer 1996

Electricity Demand Forecast, SIP3

VI-D-20........................... 0.15 Trading--Summer 1996

Electricity Demand Forecast, SIP14

VI-D-21........................... Incremental Cost Analyses

VI-D-22........................... Four additional sets of IPM run

files which provide results of

analysis of five cap-and-trade

options

VI-D-23........................... EPA Utility/Non-Utility Zero-out

Model Runs: emissions inputs and

ozone predictions in electronic

form and tabular summaries of ozone

metrics in hard copy form

VI-D-24........................... EPA UAM-V Zero-out Model runs:

emissions inputs and ozone

predictions in electronic form

VI-D-25........................... EPA UAM-V Base Case and Strategy

Model Runs: emissions inputs and

ozone predictions in electronic

form

VI-D-26........................... EPA CAMX Base Case and Source

Apportionment Model Runs: emissions

inputs and ozone predictions in

electronic form

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

Table A-2.--Additions to Section VI-F of Docket No. A-96-56

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

Commenter, Addressee, Title or

Document Number Description

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

VI-F-01........................... 0.12/0.15/0.20 3-zone trading

beginning in 2003 (output from the

IPM model)

VI-F-02........................... 0.1 5/0.20 2-zone trading beginning

in 2003 (output from the IPM model)

VI-F-03........................... Sensitivity Analysis of a 7-week

outage period for SCR Hook-up (SIP

47)

VI-F-04........................... Sensitivity Analysis of a 9-week

outage period for SCR Hook-up (SIP

48)

VI-F-05........................... Final .15 with interstate trading

beginning in 2003 (SIP 80)

VI-F-06........................... Corrected .15 with intrastate

trading beginning in 2003 (SIP 83)

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

For the reasons set forth in the preamble, part 52 of chapter 1 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. 7401-7671q.

Subpart A--General Provisions [Amended]

2. Section 52.34 as proposed at 63 FR 56292 on October 21, 1998, is

amended by removing paragraphs (b)(3) and (4); by revising paragraphs

(c)(3) and (4); by removing paragraphs (d)(3), (4), (7), and (8) and

redesignating paragraphs (d)(5) and (6) as paragraphs (d)(3) and (4)

respectively; by revising paragraphs (e)(3) and (4); by adding

paragraph (e)(2)(xi); by removing paragraphs (f)(3) and (4); by

removing paragraphs (g)(3), (4), (7), and (8) and redesignating

paragraphs (g)(5) and (6) as paragraphs (g)(3) and (4) respectively; by

removing paragraphs (h)(3) and (4); and by removing paragraphs (i)(3),

(4), (7), and (8) and redesignating paragraphs (i)(5) and (6) as

paragraphs (i)(3) and (4) respectively; to read as follows:

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

emissions of nitrogen oxides.

* * * * *

(c) * * *

(3) Affirmative Technical Determinations with Respect to the 8-Hour

Ozone Standard in Maine. The Administrator of EPA finds that any

existing or new major source or group of stationary sources emits or

would emit NOX in amounts that contribute significantly to

nonattainment in the State of Maine, with respect to the 8-hour NAAQS

for ozone if it is or will be:

(i) In a category of sources described in 40 CFR 97.4;

(ii) Located in one of the States (or portions thereof) listed in

paragraph (c)(6) of this section; and

(iii) Within one of the ``Named Source Categories'' listed in the

portion of Table F-1 of appendix F of this part describing the sources

covered by the petition of the State of Maine.

(4) States or Portions of States that Contain Sources for which EPA

is Making an Affirmative Technical Determination with Respect to the 8-

Hour Ozone Standard in Maine. The States, or portions of States, that

contain sources for which EPA is making an affirmative technical

determination are:

(i) Connecticut.

(ii) Delaware.

(iii) District of Columbia.

(iv) Maryland.

(v) Massachusetts.

(vi) New Jersey.

(vii) New York.

(viii) North Carolina.

(ix) Pennsylvania.

(x) Rhode Island.

(xi) Virginia.

* * * * *

(e) * * *

(2) * * *

(xi) Ohio

* * * * *

(3) Affirmative Technical Determinations with Respect to the 8-Hour

Ozone Standard in New Hampshire. The Administrator of EPA finds that

any existing or new major source or group of stationary sources emits

or would emit NOX in amounts

[[Page 10350]]

that contribute significantly to nonattainment in, or interfere with

maintenance by, the State of New Hampshire, with respect to the 8-hour

NAAQS for ozone if it is or will be:

(i) In a category of sources described in 40 CFR 97.4;

(ii) Located in one of the States (or portions thereof) listed in

paragraph (e)(6) of this section; and

(iii) Within one of the ``Named Source Categories'' listed in the

portion of Table F-1 of appendix F of this part describing the sources

covered by the petition of the State of New Hampshire.

(4) States or Portions of States that Contain Sources for which EPA

is Making an Affirmative Technical Determination with Respect to the 8-

Hour Ozone Standard in New Hampshire. The States, or portions of

States, that contain sources for which EPA is making an affirmative

technical determination are:

(i) Connecticut.

(ii) Delaware.

(iii) District of Columbia.

(iv) Maryland.

(v) Massachusetts.

(vi) New Jersey.

(vii) New York.

(viii) Pennsylvania.

(ix) Rhode Island.

* * * * *

[FR Doc. 99-5201 Filed 3-2-99; 8:45 am]

BILLING CODE 6560-50-P