[Federal Register Volume 79, Number 110 (Monday, June 9, 2014)]
[Proposed Rules]
[Pages 32892-32900]
From the Federal Register Online via the Government Publishing 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: [email protected]. 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: [email protected].
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).
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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\
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\29\ See PM2.5 Implementation Rule, 72 FR 20623.
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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