[Federal Register Volume 79, Number 110 (Monday, June 9, 2014)]
[Proposed Rules]
[Pages 32892-32900]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13415]



[[Page 32892]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[EPA-HQ-OAR-2009-0897; FRL-9909-28-OAR]
RIN 2060-AQ07


Withdrawal of the Prior Determination or Presumption That 
Compliance With the CAIR or the NOX SIP Call Constitutes RACT or RACM 
for the 1997 8-Hour Ozone and 1997 Fine Particle NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing to 
withdraw any prior determination or presumption, for the 1997 8-hour 
ozone national ambient air quality standard (NAAQS) and the 1997 fine 
particle (PM2.5) NAAQS, that compliance with the Clean Air 
Interstate Rule (CAIR) or the NOX SIP Call automatically 
constitutes reasonably available control technology (RACT) or 
reasonably available control measures (RACM) for oxides of nitrogen 
(NOX) or sulfur dioxide (SO2) emissions from 
electric generating unit (EGU) sources participating in these regional 
cap-and-trade programs.

DATES: Comments. Comments must be received on or before July 9, 2014. 
Public Hearings. If anyone contacts us requesting a public hearing on 
or before June 24, 2014, we will hold a public hearing. Please refer to 
SUPPLEMENTARY INFORMATION for additional information on the comment 
period and the public hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0897, by one of the following methods:
     www.regulations.gov. Follow the online instructions for 
submitting comments. Attention Docket ID No. EPA-HQ-OAR-2009-0897.
     Email: a-and-r-docket@epa.gov. Attention Docket ID No. 
EPA-HQ-OAR-2009-0897.
     Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2009-0897.
     Mail: EPA Docket Center, EPA West (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2009-0897, U.S. Environmental Protection 
Agency, Mailcode: 28221T, 1200 Pennsylvania Avenue NW., Washington, DC 
20460. Please include a total of two copies.
     Hand Delivery: U.S. Environmental Protection Agency, 
William Jefferson Clinton West Building (Air Docket), 1301 Constitution 
Avenue NW., Room 3334, Washington, DC 20004, Attention Docket ID No. 
EPA-HQ-OAR-2009-0897. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0897. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to the EPA without going through 
www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, the EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, avoid any form of encryption, and be free of any 
defects or viruses. For additional information about the EPA's public 
docket, visit the EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm.
    Docket. All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation Docket 
and Information Center, EPA/DC, William Jefferson Clinton West 
Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Ms. Kristin Riha, Office of Air 
Quality Planning and Standards, Air Quality Policy Division, Mailcode 
C539-01, Research Triangle Park, NC 27711, telephone: (919) 541-2031; 
fax number: (919) 541-5315; email address: riha.kristin@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this action include states 
(typically state air pollution control agencies) and, in some cases, 
local governments that are responsible for air quality management and 
planning. In particular, states with areas designated nonattainment for 
the 1997 8-hour ozone NAAQS and/or the 1997 PM2.5 NAAQS and 
that are located within the geographic areas covered by the 
NOX SIP Call \1\ and/or the CAIR \2\ may be affected by this 
action. EGUs located in such geographic regions may also be affected by 
any new RACT or RACM reviews that may result from final rulemaking on 
this action. These sources are in the following groups:
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    \1\ See Finding of Significant Contribution and Rulemaking for 
Certain States in the Ozone Transport Assessment Group Region for 
Purposes of Reducing Regional Transport of Ozone; Final Rule, 63 FR 
57356 (October 27, 1998).
    \2\ See Rule to Reduce Interstate Transport of Fine Particulate 
Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain 
Program; Revisions to the NOX SIP Call; Final Rule, 70 FR 
25162 (May 12, 2005).

[[Page 32893]]



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          Industry group             SIC \a\           NAICS \b\
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Electric Services................        492   221111, 221112, 221113,
                                                221119, 221121, 221122.
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\a\ Standard Industrial Classification.
\b\ North American Industry Classification System.

B. What should I consider as I prepare my comments for the EPA?

    1. Submitting CBI. Do not submit this information to the EPA 
through www.regulations.gov or email. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-
ROM as CBI and then identify electronically within the disk or CD-ROM 
the specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed to be CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR Part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this notice will be posted at http://www.epa.gov/airquality/ozonepollution/actions.html.

D. What information should I know about a possible public hearing?

    To request a public hearing or information pertaining to a public 
hearing on this document, contact Ms. Pamela Long at (919) 541-0641 
before 5 p.m. on June 24, 2014. If requested, further details 
concerning a public hearing for this proposed rule will be published in 
a separate Federal Register notice. For updates and additional 
information on a public hearing, please check the EPA's Web site for 
this rulemaking at http://www.epa.gov/airquality/ozonepollution/actions.html.

E. How is this notice organized?

    The information presented in this notice is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for the EPA?
    C. Where can I get a copy of this document and other related 
information?
    D. What information should I know about a possible public 
hearing?
    E. How is this notice organized?
II. Background
    A. CAA Requirements and the Definitions of RACT and RACM
    B. The NOX SIP Call
    C. The CAIR
    D. The Phase 2 Ozone Implementation Rule
    E. The PM2.5 Implementation Rule
    F. Impact of the NRDC v. EPA Court Decision on Determinations 
and Presumptions
III. Proposed Action
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
Statutory Authority
List of Subjects in 40 CFR Part 51

II. Background

A. CAA Requirements and the Definitions of RACT and RACM

    The Clean Air Act (CAA) requires the EPA to designate areas as 
either attainment, nonattainment, or unclassifiable for each NAAQS. 
States have primary responsibility for implementing the NAAQS within 
their borders, and each state must develop a state implementation plan 
(SIP) that contains adequate provisions for attainment and maintenance 
of the NAAQS. The SIPs developed by states must meet the applicable 
statutory requirements. For areas designated nonattainment, Part D of 
the CAA requires that SIPs must include certain control measures. 
Subpart 1 of Part D contains generally applicable requirements for all 
nonattainment areas. Subpart 2 and Subpart 4 of Part D contain 
additional requirements applicable to certain ozone and particulate 
matter (PM, including PM2.5) nonattainment areas, 
respectively.
    Among the general statutory requirements for all nonattainment 
areas is the requirement in section 172(c)(1) that SIPs: ``provide for 
the implementation of all reasonably available control measures as 
expeditiously as practicable (including such reductions in emissions 
from existing sources in the area as may be obtained through the 
adoption, at a minimum, of reasonably available control technology).'' 
Ozone nonattainment areas that are subject to the requirements of 
Subpart 2 must meet more specific RACT requirements in accordance with 
section 182(b)(2)(C). States located within the Ozone Transport Region 
(OTR) have additional requirements to impose RACT on sources statewide, 
rather than only in nonattainment areas, in accordance with section 
184.
    The EPA refers to the requirement for ``reasonably available 
control measures'' as RACM, and refers to the subset of RACM in the 
parenthetical for ``reasonably available control technology'' as RACT. 
RACM and RACT measures apply broadly to a range of source categories 
located in designated nonattainment areas, including large stationary 
sources such as EGUs. The EPA has historically interpreted RACT

[[Page 32894]]

to mean the lowest emissions limitation that a particular source is 
capable of meeting by the application of control technology that is 
reasonably available considering technological and economic 
feasibility.\3\
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    \3\ See Memorandum from Roger Strelow titled, ``Guidance for 
Determining Acceptability of SIP Regulations in Non-Attainment 
Areas.'' (December 9, 1976.) See also ``State Implementation Plans; 
General Preamble for the Implementation of Title I of the Clean Air 
Act Amendments of 1990,'' 57 FR 13498 (April 16, 1992).
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    RACT requirements are specifically intended to impose emission 
controls for purposes of attainment and maintenance of the NAAQS within 
a specific nonattainment area. The EPA has interpreted the terms RACT 
and RACM for purposes of Subpart 1 requirements as being the level of 
emissions control that is necessary to provide for expeditious 
attainment of the NAAQS within a nonattainment area. Courts have upheld 
this interpretation of the statute with respect to nonattainment 
SIPs.\4\
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    \4\ See NRDC v. EPA, 571 F.3d 1245, at 1252-53 (D.C. Cir. 2009).
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    In contrast to nonattainment plan requirements, section 
110(a)(2)(D)(i) requires each state's SIP to contain provisions that 
will prevent emissions from sources in the state from having certain 
prohibited impacts on the air quality of other states, via interstate 
transport. In particular, section 110(a)(2)(D)(i)(I) requires that a 
state's SIP must contain provisions to prevent emissions in amounts 
that would ``contribute significantly to nonattainment in, or interfere 
with maintenance by, any other state'' with respect to a NAAQS. The EPA 
has initiated several regulatory programs pursuant to section 
110(a)(2)(D)(i)(I) to address interstate transport of emissions that 
have such prohibited impacts on attainment of the ozone and 
PM2.5 NAAQS on a regional basis.

B. The NOX SIP Call

    In October 1998, the EPA published a rule under section 
110(a)(2)(D)(i) of the CAA, commonly referred to as the 
``NOX SIP Call.'' This rule was intended to reduce 
NOX emissions (a precursor for ozone formation) from sources 
that significantly contribute to nonattainment or interfere with 
maintenance of the ozone NAAQS in one or more downwind states. To 
implement these reductions, the NOX SIP Call required 22 
states and the District of Columbia to submit SIP revisions prohibiting 
those NOX emissions that the EPA determined to be adversely 
impacting downwind air quality problems. The NOX SIP Call 
provided a regional emissions cap-and-trade program as one mechanism 
for states to meet their interstate transport requirements under 
section 110(a)(2)(D)(i). Through this mechanism, affected sources could 
meet emissions reductions requirements either by installing 
NOX emissions controls or by purchasing allowances from 
other sources located within the geographic region covered by the 
NOX SIP Call.

C. The CAIR

    In May 2005, the EPA published another rule under section 
110(a)(2)(D)(i) of the CAA, referred to as the ``Clean Air Interstate 
Rule'' (or the CAIR). The CAIR required reductions of NOX 
and/or SO2 emissions across 28 states and the District of 
Columbia needed to eliminate significant contribution to nonattainment, 
or interference with maintenance of, the 1997 8-hour ozone NAAQS and/or 
the 1997 PM2.5 NAAQS in one or more downwind states.\5\ 
Similar to the NOX SIP Call, the EPA provided a regional 
emissions cap-and-trade mechanism as one means for upwind states to 
meet the interstate transport requirements of section 110(a)(2)(D)(i). 
By this mechanism, affected sources could meet their emission reduction 
requirements either by installing controls for NOX and/or 
SO2 emissions, or by purchasing allowances from other 
sources located in the geographic region covered by the CAIR. On April 
28, 2006 (71 FR 25328), the EPA also promulgated Federal Implementation 
Plans (FIPs) for all jurisdictions covered by the CAIR to address the 
section 110(a)(2)(D)(i) requirements in the event that states were 
unable to make a SIP submission containing state measures necessary to 
alleviate interstate transport.
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    \5\ NOX is a precursor for ozone formation, while 
both NOX and SO2 are precursors for 
PM2.5 formation.
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    A number of parties filed petitions for review in 2008 to challenge 
the CAIR on various grounds. As a result of this litigation, the United 
States Court of Appeals for the District of Columbia Circuit (the 
Court) remanded the CAIR to the EPA, but later decided not to vacate 
the rule.\6\ In the process of remanding the CAIR, however, the Court 
identified serious concerns with the EPA's reading of the statute and 
analytical approach, including such core issues as the agency's method 
of evaluating significant contribution to nonattainment and 
interference with maintenance of the NAAQS. In response to the remand 
of the CAIR, the EPA finalized another rule, the ``Cross-State Air 
Pollution Rule'' (CSAPR) on July 6, 2011 (published in the Federal 
Register on August 8, 2011).\7\ This rule was then vacated by the U.S. 
Court of Appeals for the District of Columbia (D.C. Circuit) on August 
21, 2012.\8\ In its opinion vacating the CSAPR, the D.C. Circuit 
instructed the EPA to continue administering the CAIR pending 
promulgation of a valid replacement. The United States Supreme Court 
subsequently agreed to review the decision of the D.C. Circuit and 
issued a decision on April 29, 2014, that reversed the judgment of the 
D.C. Circuit and remanded the case for further proceedings. At this 
time, CSAPR remains stayed and CAIR remains in place.
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    \6\ See North Carolina v. EPA, 531 F.3d 896; modified by 550 
F.3d 1176 (D.C. Cir. 2008).
    \7\ See ``Federal Implementation Plans: Interstate Transport of 
Fine Particulate Matter and Ozone and Correction of SIP Approvals, 
Final Rule,'' 76 FR 48208 (August 8, 2011).
    \8\ See EME Homer City Generation L.P. v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012), cert. granted 133 S. Ct. 2857 (2013).
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    Both the NOX SIP Call and the CAIR were intended and 
designed to eliminate interstate transport of pollutants that have 
impacts on attainment and maintenance of the ozone and/or 
PM2.5 NAAQS in downwind areas. Thus, they provide 
significant emissions reductions that assist downwind areas with 
attainment or maintenance of the NAAQS, and allow downwind states to 
develop SIPs in reliance on regional emissions reductions. However, the 
EPA did not intend that either the NOX SIP Call or the CAIR 
would completely obviate the potential need for additional local 
pollution controls in downwind nonattainment areas, nor did the EPA 
intend either action to override the statutory requirements for SIPs 
for nonattainment areas.\9\
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    \9\ See the CAIR, 70 FR 25184 (discussing the need for both 
regional and local emission reductions to bring all areas into 
attainment); See also Clean Air Fine Particle Implementation Rule, 
72 FR 20587 (discussing the need for regional and national emission 
reduction programs in conjunction with local controls in SIPs for 
nonattainment areas to bring all areas into attainment).
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    In order to help states address the specific statutory requirement 
for SIPs for nonattainment areas for the 1997 8-hour ozone NAAQS and 
1997 PM2.5 NAAQS, the EPA promulgated both regulations and 
guidance applicable to each NAAQS in separate implementation rules. 
Within those actions, the EPA addressed questions concerning the 
intersection of the requirements for regional control strategies and 
the requirements for local control strategies to reduce interstate 
transport in individual nonattainment

[[Page 32895]]

areas needed for local attainment purposes. In particular, the EPA 
focused on the issue of whether, or to what extent, compliance by EGUs 
with the requirements of the NOX SIP Call and/or the CAIR 
could also be construed as compliance with the RACT requirements for 
local nonattainment SIPs for the 1997 8-hour ozone and 1997 
PM2.5 NAAQS. The EPA's approach to this issue for each NAAQS 
is described in more detail later.

D. The Phase 2 Ozone Implementation Rule

    On November 29, 2005 (70 FR 71612), the EPA published an ozone 
implementation rule to address nonattainment SIP requirements for the 
1997 8-hour ozone NAAQS (the Phase 2 Ozone Implementation Rule). The 
Phase 2 Ozone Implementation Rule addressed various statutory 
requirements, including the requirement for RACT-level controls for 
sources located within nonattainment areas generally, and controls for 
NOX emissions from EGUs in particular. After explaining its 
analysis of the issue, the EPA indicated its determination that the 
regional NOX emissions reductions that result from either 
the NOX SIP Call or the CAIR would meet the NOX 
RACT requirement for EGUs located in states included within the 
respective NOX SIP Call or CAIR geographic regions. Thus, 
the EPA concluded that: ``[t]he State need not perform a NOX 
RACT analysis for sources subject to the State's emission cap-and-trade 
program where the cap-and-trade program has been adopted by the State 
and approved by the EPA as meeting the NOX SIP Call 
requirements or, in States achieving the CAIR reductions solely from 
electric generating units (EGUs), the CAIR NOX 
requirements.'' \10\
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    \10\ See Phase 2 Ozone Implementation Rule, 70 FR 71617.
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    In January 2006, Earthjustice, on behalf of the Natural Resources 
Defense Council (NRDC), filed a petition for reconsideration of the 
Phase 2 Ozone Implementation Rule, objecting to the EPA's determination 
that, in certain circumstances, compliance with the requirements of the 
CAIR would constitute RACT for NOX emissions for EGUs 
located in states within the CAIR region.\11\ The petition raised 
objections to an alleged failure to seek public comment on the 
determination and to the agency's interpretation of the CAA to allow a 
regional emissions reduction program to constitute RACT for sources 
located within nonattainment areas, as well as other related issues. 
The EPA granted the petition for reconsideration of the Phase 2 Ozone 
Implementation Rule and subsequently conducted a Supplemental Technical 
Analysis to assess whether compliance with the CAIR could satisfy the 
NOX RACT requirement for EGUs in certain geographic 
areas.\12\ A proposed rule, which presented this analysis and solicited 
comments regarding the reconsideration of whether the CAIR would 
constitute RACT for NOX emissions for EGUs located in states 
within the CAIR region, was published in December 2006. The EPA did not 
reconsider or request comments on its prior determination that the 
NOX SIP Call constitutes RACT for those sources covered by 
the NOX SIP Call.
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    \11\ See ``Petition for Reconsideration,'' filed by David Baron, 
Earthjustice, on behalf of NRDC (January 30, 2006). A copy of the 
petition is located in the docket for this action.
    \12\ See ``Technical Support Document for Phase 2 of the Final 
Rule to Implement the 8-Hour Ozone National Ambient Air Quality 
Standard--Notice of Reconsideration; NOX RACT for EGUs in 
CAIR States--Supplemental Technical Analysis,'' December 2006. 
(Docket ID no. EPA-HQ-OAR-2003-0079, item number EPA-HQ-OAR-2003-
0079-1044.2) (Supplemental Technical Analysis).
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    The EPA then published a final notice of reconsideration on June 8, 
2007 (72 FR 31727), reflecting the agency's additional evaluation of 
whether compliance with the CAIR could constitute RACT for 
NOX emissions for certain EGUs. In that action, the EPA 
modified its conclusion regarding when compliance with the CAIR may 
satisfy NOX RACT requirements for EGUs in areas within the 
CAIR region. The EPA reaffirmed its determination that, in many ozone 
nonattainment areas, compliance with the CAIR would satisfy 
NOX RACT requirements for EGUs in such areas.\13\ However, 
the EPA stated that this determination would only apply to specific 
areas for which the EPA's Supplemental Technical Analysis showed that 
the CAIR was projected to achieve equal or greater NOX 
emissions reductions than application of source-by-source application 
of RACT to the EGUs within the nonattainment area. Even in those 
nonattainment areas where the EPA did not make a formal determination, 
however, the EPA also established a separate presumption that 
compliance with the CAIR, in certain circumstances, could satisfy 
NOX RACT requirements for EGUs in any area within the CAIR 
region.\14\ The EPA thus announced that states could rely initially on 
this presumption, even in areas where the agency had made no formal 
determination, assuming certain conditions. Finally, the EPA reiterated 
in the final notice of reconsideration that EGU sources complying with 
the requirements of the NOX SIP Call would also be 
considered to have met their ozone NOX RACT obligations, 
assuming certain conditions.\15\
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    \13\ Specifically, the EPA determined that compliance with the 
CAIR would meet the NOX RACT requirements for ozone 
nonattainment areas in sections 172(c)(1) and 182(f), and the 
statewide NOX RACT requirements for SIPs for states 
located within the Ozone Transport Region pursuant to sections 
184(b) and 182(f). See Phase 2 Ozone Implementation Rule--Notice of 
Reconsideration, 72 FR 31730.
    \14\ See Phase 2 Ozone Implementation Rule--Notice of 
Reconsideration, 72 FR 31730.
    \15\ Id. 72 FR 31731.
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    In addition to the Supplemental Technical Analysis, the EPA 
provided various legal and policy bases for its determinations and 
presumptions in the final notice of reconsideration of the Phase 2 
Ozone Implementation Rule. For example, the EPA argued that its 
interpretation of section 172(c) to allow RACT to include consideration 
of regionwide emissions reductions, rather than nonattainment area 
specific reductions only, was permissible because of the use of the 
term ``reasonable'' as part of the definition of RACT.\16\ As a policy 
matter, the EPA also argued that emissions reductions that result from 
regional scale programs like the CAIR often ``will achieve a more 
effective and economically efficient air quality improvement in 
nonattainment areas than application of source-by-source RACT.'' \17\
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    \16\ Id. 72 FR 31730.
    \17\ Id.
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    In November 2008, the U.S. Court of Appeals for the D.C. Circuit 
heard oral argument concerning multiple petitions for judicial review 
of the EPA's Phase 2 Ozone Implementation Rule and the Notice of 
Reconsideration. Among other issues, the petitioners (including NRDC) 
challenged the EPA's determination that compliance with the 
NOX SIP Call and/or the CAIR could satisfy NOX 
RACT requirements for EGUs in ozone nonattainment areas, and the EPA's 
specific determinations for some areas and general presumption for 
other areas, that compliance with the CAIR could satisfy NOX 
RACT for EGUs in ozone nonattainment areas. In view of its decision in 
North Carolina v. EPA, in which the Court had previously remanded the 
CAIR and in response to the parties' joint suggestion to the Court that 
any further litigation of CAIR-related issues be held in abeyance given 
the North Carolina decision, the Court deferred consideration of the 
litigants' challenges to the Phase 2 Ozone Implementation Rule and 
Reconsideration Notice insofar as they related to the CAIR program.

[[Page 32896]]

    As a result of this litigation, the Court decided that the 
provisions in the Phase 2 Ozone Implementation Rule indicating that a 
state need not perform (or submit) a NOX RACT analysis for 
EGU sources subject to a cap-and-trade program that meets the 
requirements of the NOX SIP Call are inconsistent with the 
statutory requirements of section 172(c)(1).\18\ The Court specifically 
held that the Phase 2 Ozone Implementation Rule allowing use of the 
NOX SIP call to constitute RACT without any locally 
applicable analysis regarding the equivalence of NOX SIP 
Call and RACT reductions: ``is inconsistent with the Clean Air Act . . 
. in allowing participation in a regional cap-and-trade program to 
satisfy an area-specific statutory mandate.'' The Court emphasized 
that: ``the RACT requirement calls for reductions in emissions from 
sources in the area; reductions from sources outside the nonattainment 
area do not satisfy the requirement . . . Accordingly, participation in 
the NOX SIP call would constitute RACT only if participation 
entailed at least RACT-level reductions in emissions from sources 
within the nonattainment area.''
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    \18\ See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009).
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    The Court rejected the EPA's arguments that a regional emissions 
reductions program like the NOX SIP Call would result in 
greater emissions reductions in nonattainment areas as unsupported by 
any adequate technical analysis.\19\ The Court likewise rejected the 
EPA's argument that regionwide emissions reductions would collectively 
achieve better emissions reductions because this argument did not 
comport with the explicit ``in the area'' language of section 
172(c)(1).\20\ With respect to the EPA's argument that the statute is 
ambiguous as to whether each individual source within a nonattainment 
area must install RACT, the Court concluded that even if that were 
correct, the EPA had failed to evaluate the impact of the 
NOX SIP Call on the air quality within specific 
nonattainment areas, and thus the EPA ``has failed to establish that 
NOX SIP Call compliance can be equated to RACT compliance.'' 
\21\ The Court disagreed with the EPA's theory that section 172(c)(6), 
which authorizes auctions as a permissible form of control measure, 
could allow reliance on a regional cap-and-trade type program in lieu 
of the RACT requirement for sources ``in the area.'' \22\ Finally, the 
Court rejected the argument that the EPA's interpretation should be 
upheld because a state could still elect to define RACT to require 
greater emissions reductions from EGUs in a given area for local 
attainment needs, concluding that: ``[a] state's decision to require 
stricter controls cannot eliminate the defect in the EPA's approach--
failing to implement the requirement of at least RACT-level reductions 
in emissions from sources in the nonattainment area.'' \23\
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    \19\ Id. 571 F.3d at 1257.
    \20\ Id.
    \21\ Id.
    \22\ Id. 571 F.3d at 1258.
    \23\ Id.
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    Based on the foregoing reasoning, the Court remanded the provision 
of the Phase 2 Ozone Implementation Rule determining that the 
NOX SIP Call satisfies NOX RACT for EGUs because 
the EPA had failed to show that compliance with the NOX SIP 
Call would achieve at least RACT-level reductions in each nonattainment 
area. In deciding not to vacate the provision, however, the Court noted 
that a determination that RACT was satisfied by compliance with the 
NOX SIP Call might be permissible for an area if accompanied 
by a technical analysis demonstrating that the program in fact 
``results in greater emissions reductions in a nonattainment area than 
would be achieved if RACT-level controls were installed in that area.'' 
\24\ In other words, the Court rejected the notion that a regional cap-
and-trade program intended to eliminate interstate transport of 
emissions consistent with section 110(a)(2)(D)(i) could automatically 
constitute RACT-level control as required by section 172(c)(1), but 
held open the possibility that such a program might in fact result in 
the same, or higher, level of emissions reductions in individual 
nonattainment areas.
---------------------------------------------------------------------------

    \24\ Id.
---------------------------------------------------------------------------

    Significantly, the Court did not address at all the EPA's 
comparable determinations and presumption that compliance with the CAIR 
would constitute NOX RACT for EGUs in ozone nonattainment 
areas under certain circumstances. As mentioned earlier, the Court (in 
response to the joint suggestion of the parties) deferred consideration 
of the CAIR-related challenges to the EPA's determinations and 
presumption because at the time of this decision, the Court had already 
remanded the CAIR.\25\ However, on August 30, 2013, the U.S. Court of 
Appeals for the D.C. Circuit granted the EPA's request for voluntary 
remand of the CAIR determination and vacatur of the CAIR presumption. 
In granting the agency's request, the Court said that ``[v]acatur of 
the presumption is appropriate in light of the NRDC v. EPA . . .'' \26\
---------------------------------------------------------------------------

    \25\ Id. at 1250.
    \26\ NRDC v. EPA, No. 09-1198 (D.C. Cir.) (order of August 30, 
2013).
---------------------------------------------------------------------------

E. The PM2.5 Implementation Rule

    On April 25, 2007 (72 FR 20586), the EPA published the ``Clean Air 
Fine Particle Implementation Rule'' to address nonattainment SIP 
requirements for the 1997 PM2.5 NAAQS (the PM2.5 
Implementation Rule).\27\ That action provided regulations and 
additional guidance in the preamble for state plans required to 
implement the 1997 PM2.5 NAAQS. The PM2.5 
Implementation Rule provided a framework for developing SIP submissions 
for nonattainment areas based on the Subpart 1 requirements for 
nonattainment areas found in section 172 of the CAA.\28\
---------------------------------------------------------------------------

    \27\ The PM2.5 Implementation Rule is now codified at 
40 CFR Section 51.1000-1012. Section 51.1010 addresses the RACT and 
RACM requirements.
    \28\ The EPA notes that on January 4, 2013, the PM2.5 
Implementation Rule was remanded by the U.S. Court of Appeals for 
the D.C. Circuit. The Court ruled that the EPA should have issued 
the implementation rule under the Clean Air Act requirements of 
Subpart 4. (See NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013). This 
proposal addresses only one aspect of the remanded PM2.5 
Implementation Rule, i.e., the presumption that CAIR is RACT/RACM 
for purposes of attainment plans for the 1997 PM2.5 
NAAQS. This issue is not directly related to the Court's decision in 
NRDC v. EPA. The EPA intends to respond to the Court's remand in 
that decision in another rulemaking that will address implementation 
requirements for the PM2.5 NAAQS more broadly.
---------------------------------------------------------------------------

    With respect to the requirements of section 172 (c)(1), the 
PM2.5 Implementation Rule used a combined RACT/RACM 
approach, where a state's obligation to implement RACT was considered 
as part of the overall RACM obligation for EGU sources. RACT/RACM was 
defined in the Rule as the set of emission reduction measures needed to 
attain the standards as expeditiously as practicable in the 
nonattainment area at issue. Through guidance in the preamble to the 
final PM2.5 Implementation Rule, the EPA also established a 
presumption that compliance with the CAIR would satisfy RACT/RACM 
requirements for SO2 and NOX emissions from EGUs 
in states participating in the CAIR cap-and-trade program for such 
emissions.\29\
---------------------------------------------------------------------------

    \29\ See PM2.5 Implementation Rule, 72 FR 20623.
---------------------------------------------------------------------------

    For SO2, the EPA's guidance recommended that states that 
obtained all SO2 reductions required by the CAIR from EGUs 
could presume that such sources located within a designated 
nonattainment area were meeting SO2 RACT/RACM requirements 
because of

[[Page 32897]]

overall regional SO2 reductions from EGUs. The guidance 
indicated that this presumption could be used without conducting a 
technical analysis comparing the CAIR and RACT/RACM reductions for the 
specific nonattainment area. For NOX, the EPA similarly 
recommended that so long as the EGU sources in the state were required 
to operate NOX emissions controls on a year-round basis to 
comply with the CAIR, then that state could presume that those EGUs 
were meeting NOX RACT/RACM requirements because of overall 
regional NOX reductions from EGUs. The EPA made no decision 
with respect to what might constitute RACT/RACM level controls for 
direct PM2.5 emissions from EGUs in relation to the CAIR 
because the CAIR only addressed the NOX and SO2 
emissions from such sources.
    Based on this presumption that compliance with the CAIR would 
constitute RACT/RACM level controls for SO2 and 
NOX emissions from EGUs within the CAIR region, the EPA 
concluded that: ``States may define RACT/RACM as the CAIR level of 
control on the collective group of sources in the region rather than 
impose a specific level of control on individual sources.'' \30\ In 
other words, the EPA indicated that states could presume that EGUs 
located within a given nonattainment area were meeting the RACT/RACM 
requirement, based solely upon a regional program that imposed controls 
on sources both within and outside designated nonattainment areas. The 
EPA acknowledged that reliance on the presumption could result in 
situations where specific EGUs located within nonattainment areas might 
elect to comply with the CAIR through the acquisition of allowances, 
rather than the reduction of emissions. Although the EPA articulated a 
series of policy and technical reasons for the appropriateness of 
considering a regional control program like the CAIR to be a preferable 
approach, the agency also acknowledged that a state might ``conclude 
that establishing additional `beyond CAIR' emissions control 
requirements on specific sources in nonattainment areas is warranted to 
provide for attainment as expeditiously as practicable.'' \31\ These 
policy and technical arguments are very similar to those made by the 
EPA in connection with challenges to the Phase 2 Ozone Implementation 
Rule, and rejected by the Court decision discussed in further detail 
previously in this notice.
---------------------------------------------------------------------------

    \30\ Id. at 72 FR 20624.
    \31\ Id. at 72 FR 20625.
---------------------------------------------------------------------------

    In June 2007, the EPA received a petition for reconsideration filed 
by Earthjustice on behalf of several petitioners (including NRDC) that 
raised several objections to the PM2.5 Implementation 
Rule.\32\ One of the principle objections raised by the petition is 
that under the CAA, compliance with a regional trading program, such as 
the CAIR, should not be presumed to satisfy RACT/RACM requirements for 
individual EGU sources located in nonattainment areas. The petitioner 
argued that the effect of the ``CAIR-RACT presumption'' was to waive 
the CAA RACT requirements for individual EGU sources located within 
PM2.5 nonattainment areas. The petition also asserts that 
the presumption and its accompanying rationale were added to the rule 
after the close of the public comment period, and that the EPA 
therefore failed to seek public comment on the final rule's 
determination that the CAIR presumptively satisfies SO2 and 
NOX RACT requirements for EGUs located in nonattainment 
areas. The petition further maintains that the EPA lacks authority to 
establish a presumption on what satisfies RACT in this fashion, and 
that the EPA's conclusion that the CAIR can be presumed to satisfy RACT 
is arbitrary and capricious because it lacked a factual basis. Lastly, 
the petition also maintained that even if an initial presumption that 
compliance with the CAIR constituted compliance with the RACT 
requirements of section 172(c)(1) were otherwise permissible, the final 
rule would be arbitrary and unlawful because it failed to explain if or 
how the presumption can be rebutted.
---------------------------------------------------------------------------

    \32\ See ``Petition for Reconsideration,'' filed by Paul Cort, 
Earthjustice, on behalf of the American Lung Association, Medical 
Advocates for Healthy Air, Natural Resources Defense Council, and 
the Sierra Club (June 25, 2007). A copy of the petition is in the 
docket for this action.
---------------------------------------------------------------------------

    Significantly, Earthjustice filed the petition for reconsideration 
of the PM2.5 Implementation Rule well before the Court in 
the NRDC v. EPA case addressed the comparable issue with respect to the 
NOX SIP Call in the context of the Phase 2 Ozone 
Implementation Rule. Nevertheless, the petitioner made essentially the 
same points as the Court in the NRDC v. EPA case that to allow 
compliance with a regional cap-and-trade program to constitute RACT for 
sources located within a nonattainment area automatically, or pursuant 
to an unsupported presumption, would be contrary to the explicit 
requirements of section 172(c)(1). Moreover, the EPA notes that 
multiple parties have indicated that they intend to challenge the 
PM2.5 Implementation Rule on this same issue through 
petitions for review currently pending in the Court.
    In light of the arguments raised in the petition for 
reconsideration, and in light of the Court's decision in NRDC v. EPA, 
the EPA decided to grant the petition for reconsideration on this issue 
and initiate this rulemaking.\33\
---------------------------------------------------------------------------

    \33\ See letter dated April 25, 2011, from Lisa P. Jackson to 
Paul Cort, Earthjustice. A copy of this letter is located in the 
docket for this action.
---------------------------------------------------------------------------

F. Impact of the NRDC v. EPA Court Decision on Determinations and 
Presumptions

    The EPA has reevaluated whether compliance with the NOX 
SIP Call could automatically constitute NOX RACT for EGUs in 
light of the Court's opinion in the NRDC v. EPA case. Given the 
explicit wording of section 172(c)(1) that sources ``in the area'' must 
at a minimum adopt RACT controls for that area, the EPA believes that 
it is no longer appropriate to presume that this requirement is 
automatically met through the participation of sources in a regional 
emissions cap-and-trade program. Implicit in a regional cap-and-trade 
program is that some sources may elect to use allowances in lieu of 
emissions controls to meet the regional emissions reductions 
requirements, and that those elections could change from year to year. 
The EPA believes that it would be inappropriate to pre-judge whether 
participation in a cap-and-trade program satisfies NOX RACT 
for EGU sources in any given nonattainment area. The EPA further 
believes that states could rely on a regional emissions cap-and-trade 
program for purposes of meeting NOX RACT requirements if 
they conduct the appropriate analysis demonstrating that compliance by 
EGUs participating in this program results in actual emission 
reductions in the particular nonattainment area that are equal to, or 
greater than, emission reductions that would result if RACT were 
applied to each individual EGU source or the EGU source category in the 
nonattainment area.
    Additionally, based on the logic of the NRDC v. EPA Court decision, 
and the concerns raised in the petition for reconsideration on the 
PM2.5 Implementation Rule, the EPA believes that it would be 
inappropriate absent an analysis for the EPA to pre-judge whether 
regional cap-and-trade programs would constitute RACT or RACM for 
covered sources in a particular PM2.5 nonattainment area.

[[Page 32898]]

III. Proposed Action

    In this notice, the EPA is proposing to: (1) Withdraw from the 
Phase 2 Ozone Implementation Rule the determination that compliance 
with the NOX SIP Call satisfies NOX RACT for EGUs 
located in certain ozone nonattainment areas or in states within the 
OTR; (2) withdraw from the Phase 2 Ozone Implementation Rule the 
separate determination that compliance with the CAIR satisfies 
NOX RACT for EGUs located in certain ozone nonattainment 
areas; and (3) withdraw from the PM2.5 Implementation Rule 
any presumption that compliance with the CAIR automatically satisfies 
RACT/RACM requirements for SO2 and NOX emissions 
from EGUs located in PM2.5 nonattainment areas.
    In general, the EPA supports flexible, common sense approaches that 
provide the health and environmental protections required under the CAA 
while maximizing flexibility for states. The EPA also supports 
maintaining the integrity of regional cap-and-trade programs. 
Therefore, as a result of this action, states would retain the option 
of relying on source participation in a regional cap-and-trade program 
for purposes of meeting the RACT or RACM requirements for the 1997 
ozone NAAQS or the 1997 PM2.5 NAAQS if there is a technical 
analysis that supports the conclusion that participation in the cap-
and-trade program is equivalent. More information about this 
flexibility is included below.
    The EPA has reevaluated whether compliance with the NOX 
SIP Call could constitute NOX RACT for EGUs in light of the 
Court's opinion in the NRDC v. EPA case. Given the explicit wording of 
section 172(c)(1) that sources ``in the area'' must at a minimum adopt 
RACT controls for that area, the EPA believes that it is no longer 
appropriate to determine that this requirement is automatically 
addressed for certain sources based upon the participation of those 
sources in a regional cap-and-trade program. After reconsideration, the 
EPA believes that it would be consistent with the statutory provision, 
with the overall structure of the CAA with respect to nonattainment 
plans, and with the overarching objective to provide for expeditious 
attainment of the NAAQS in each nonattainment area, that states should 
evaluate the EGUs located within designated nonattainment areas for any 
necessary controls. As noted above, the NRDC v. EPA decision left open 
the possibility that an area-specific analysis might establish that 
compliance with a regional cap-and-trade program like the 
NOX SIP Call could simultaneously result in factual 
compliance with the RACT requirement for sources located within 
nonattainment areas, and EPA's elimination of the prior determination 
will in no way prevent a state from conducting and relying on such an 
analysis. States have the option of conducting a technical analysis for 
the specific nonattainment area considering the emissions controls 
required by a regional cap-and-trade program, and demonstrating that 
compliance by EGUs participating in the program results in actual 
emission reductions in the particular nonattainment area that are equal 
to or greater than the emission reductions that would result if RACT 
were applied to each individual EGU source or the EGU source category 
within the nonattainment area.
    We note that subsequent to the NRDC v. EPA decision, the Court 
granted the EPA's request for a remand of a similar determination, 
previously made in the Phase 2 Ozone Implementation Rule, that 
compliance with the CAIR could, in some circumstances, automatically 
satisfy RACT requirements for certain sources. Following the North 
Carolina v. EPA decision that remanded the CAIR, the Court had deferred 
consideration of whether compliance with the CAIR could automatically 
satisfy a source's obligation to install RACT for the 1997 ozone NAAQS. 
Following vacatur of the rule that was to replace the CAIR, however, 
the EPA decided that it would be appropriate to reconsider this 
determination also in light of the earlier decision in NRDC v. EPA. The 
EPA believes that the logic of the NRDC v. EPA decision extends to any 
determination that sources subject to a regional trading program such 
as the CAIR automatically comply with RACT requirements for 
NOX. In other words, the decision establishes that any such 
determination is permissible if supported by an adequate technical 
demonstration showing that the trading program would result in equal or 
greater emission reductions than would be achieved by application of 
RACT to the relevant sources or source categories.
    The EPA does not believe the analysis to support the CAIR 
determination in the Phase 2 Ozone Implementation Rule provides an 
adequate technical demonstration. For this reason, the EPA is also 
proposing to withdraw its conclusion, made in the Phase 2 Ozone 
Implementation Rule final notice of reconsideration, that the EPA's 
Supplemental Technical Analysis gives an adequate demonstration that 
participation in the CAIR is projected to achieve equal or greater 
annual emissions reductions from EGUs than source-by-source RACT for 
certain specific areas.
    The EPA is proposing this action because it no longer believes that 
the assumptions held within the Supplemental Technical Analysis are 
adequate to make such a showing. After reconsideration, the EPA now 
concludes that the analysis's across-the-board assumptions regarding 
what constitutes RACT for all sources in all nonattainment areas were 
inadequate, and did not consider whether more advanced control 
technologies, such as post-combustion controls (e.g., selective 
catalytic reduction or selective non-catalytic reduction), might at 
some time be technically and economically feasible for specific sources 
in some areas.
    The EPA is consequently proposing to amend Section 51.912 to state 
explicitly that for each individual major source, or major source 
category, in a nonattainment area, states must conduct a RACT analysis 
for purposes of 1997 8-hour ozone NAAQS SIPs.
    As part of the PM2.5 Implementation Rule, the EPA 
included a presumption that EGU participation in the CAIR constituted 
RACT or RACM for SO2 for EGU sources in a particular 
nonattainment area. The EPA did not include a supporting analysis for 
this presumption as part of the Rule. The EPA believes that the logic 
of the NRDC v. EPA decision extends to any presumption that sources 
subject to a regional emissions cap-and-trade program such as the CAIR 
automatically comply with RACT or RACM requirements for NOX 
or SO2.
    As a result of this action, states should not rely merely on the 
fact that sources are complying with a regional cap-and-trade program 
as a basis for RACT or RACM-level emissions controls for the 1997 8-
hour ozone NAAQS or the 1997 PM2.5 NAAQS. States must comply 
with the provisions of the CAA, which require an evaluation of 
emissions sources, such as EGUs, located within designated 
nonattainment areas for potential RACT or RACM controls, and imposition 
of such controls as may be necessary for expeditious attainment of the 
NAAQS within the area.
    However, states retain the option of conducting a technical 
analysis for the specific nonattainment area considering the emissions 
controls required by a regional cap-and-trade program, and 
demonstrating that compliance by EGUs participating in the cap-and-
trade program results in actual emission reductions in the particular 
nonattainment area that are equal to or greater than the emission 
reductions that would result if RACT or RACM

[[Page 32899]]

were applied to an individual EGU source or the EGU source category 
within the nonattainment area. States could conduct this analysis for 
the EGUs in the nonattainment area, either individually or in the 
aggregate.
    The EPA anticipates that in many areas, such an evaluation will 
likely indicate that EGUs within the nonattainment area at issue are 
already adequately controlled for NOX and SO2 
emissions, whether by virtue of the NOX SIP Call, the 
controls required by the CAIR, or by other means. However, based on the 
logic of the NRDC v. EPA Court decision, and the concerns raised in the 
petition for reconsideration of the PM2.5 Implementation 
Rule, the EPA believes that it would be inappropriate to pre-judge that 
outcome prior to state development of locally applicable demonstrations 
showing equivalent reductions.
    The EPA is soliciting comments on the withdrawal of the 
determinations and presumption as explained previously in this notice. 
Additionally, the EPA does not believe that the withdrawal of the 
determinations and presumption has a practical impact on state planning 
and emissions control efforts, either currently or prospectively, for 
the 1997 ozone and PM2.5 NAAQS. The EPA has worked closely 
with those states who previously relied on the determinations or 
presumption, and in those instances either the states or EPA (through 
SIP approval notices) have conducted, or are currently conducting, the 
appropriate analysis to demonstrate that EGUs in each nonattainment 
area have met the RACT or RACM requirements. The EPA is not aware of 
any states that have raised concerns about the need to conduct a new 
RACT or RACM analysis as a result of the policy changes proposed in 
this rulemaking. The EPA is soliciting comments on our assessment that 
the withdrawal of the determinations and presumption does not have a 
practical impact on states.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action'' because it raises novel 
policy issues. Accordingly, the EPA submitted this action to the Office 
of Management and Budget (OMB) for review under Executive Orders 12866 
and 13563 (76 FR 3821, January 21, 2011) and any changes made in 
response to OMB recommendations have been documented in the docket for 
this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This action merely interprets the 
statutory requirements that apply to states in preparing their SIPs.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business that 
is a small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards. (See 13 CFR 121.); (2) A 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; and (3) A small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not directly impose any requirements on small entities. Rather, 
this rule interprets the obligations of the CAA for states to submit 
implementation plans in order to attain the 1997 8-hour ozone and 1997 
PM2.5 NAAQS. We continue to be interested in the potential 
impacts of the proposed rule on small entities and welcome comments on 
issues related to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 
1531-1538) for state, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any state, local, or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action merely 
interprets the statutory requirements that apply to states in preparing 
their SIPs.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action does not impose any new 
mandates on state or local governments. Thus, Executive Order 13132 
does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between the EPA and state and local 
governments, the EPA is specifically soliciting comments on this 
proposed rule from state and local officials.

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

    This rule does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). The rule does 
not have a substantial direct effect on one or more Indian tribes, 
since no tribe has to develop a Tribal Implementation Plan under this 
regulation. Furthermore, this rule does not affect the relationship or 
distribution of power and responsibilities between the federal 
government and Indian tribes. The CAA and the Tribal Air Rule establish 
the relationship of the federal government and tribes in developing 
plans to attain the NAAQS, and this rule does nothing to modify that 
relationship. This rule does not have tribal implications. Thus, 
Executive Order 13175 does not apply to this action. However, the EPA 
did conduct outreach to tribes on a regularly scheduled conference call 
with the National Tribal Air Association on March 27, 2014, where 
tribes were provided a brief overview of the proposed rule. The EPA 
specifically solicits additional comment on this proposed action from 
tribal officials.

[[Page 32900]]

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

    The EPA interprets E.O. 13045 (62 FR 19885, April 23, 1997) as 
applying only to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the E.O. 
has the potential to influence the regulation. This action is not 
subject to E.O. 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks. This proposal is 
designed to help implement the already-established ozone and 
PM2.5 NAAQS, which were both promulgated in 1997 to protect 
the health and welfare of individuals, including children, who are 
susceptible to the adverse effects of exposure to unhealthy levels of 
ozone and PM2.5.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy because it does not establish 
requirements that directly affect the general public and the public and 
private sectors, but, rather interprets the statutory requirements that 
apply to states in preparing their SIPs. The SIPs themselves will 
likely establish requirements that directly affect the general public, 
and the public and private sectors.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d), (15 U.S.C. 
272 note) directs the 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 the 
EPA to provide Congress, through OMB, explanations when the agency 
decides not to use available and applicable voluntary consensus 
standards. This rulemaking does not involve technical standards. 
Therefore, the EPA is not considering the use of any voluntary 
consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because if it has any 
effect on the level of protection provided to human health or the 
environment, the effect will be to increase the level of protection by 
resulting in more stringent emission controls on EGUs in affected 
nonattainment areas.

Statutory Authority

    The statutory authority for this action is provided by 42 U.S.C. 
7501, 7502, 7511a, 7513a, 7513b and 7601.

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: May 29, 2014.
Gina McCarthy,
Administrator.
    For reasons set forth in the preamble, part 51 of chapter I of 
title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS.

0
1. The authority citation for part 51 continues to read as follows:

     Authority:  23 U.S.C. 101; 42 U.S.C. 7401-7671q.

0
2. Section 51.912 is amended by adding paragraph (a)(4) to read as 
follows:


Sec.  51.912  What requirements apply for reasonably available control 
technology (RACT) and reasonably available control measures (RACM) 
under the 8-hour NAAQS?

    (a) * * *
    (4) An individual RACT determination must be made for each major 
source or major source category meeting the applicable major source 
size within a nonattainment area.
* * * * *
[FR Doc. 2014-13415 Filed 6-6-14; 8:45 am]
BILLING CODE 6560-50-P