[Federal Register Volume 64, Number 178 (Wednesday, September 15, 1999)]
[Rules and Regulations]
[Pages 49987-49992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23914]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[FRL-6437-3]
Notice of Direct Final Rule Revisions to Emissions Budgets Set
Forth in EPA's Finding of Significant Contribution and Rulemaking for
Purposes of Reducing Regional Transport of Ozone for the States of
Connecticut, Massachusetts and Rhode Island
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: On October 27, 1998, EPA published a final action requiring 22
States and the District of Columbia to submit State implementation plan
(SIP) revisions to prohibit specified amounts of emissions of oxides of
nitrogen (NOX)--one of the precursors to ozone (smog)
pollution--for the purpose of reducing NOX and ozone
transport across State boundaries in the eastern half of the United
States. This action is referred to as the NOX SIP Call.
Subsequent to that rulemaking, three States, Connecticut,
Massachusetts and Rhode Island, approached EPA with concerns about the
distribution of the emission reduction requirements to the three
States. While the States agreed that the amount of the overall emission
reductions that EPA was requiring from the three State region was
appropriate, the States had concerns about the specific emission
reductions that EPA was requiring from each of the three individual
States. In particular, the States were concerned that the emission
reduction requirements were inconsistent with the emission reductions
that those States were requiring in connection with an existing multi-
state effort to reduce NOX and ozone transport across State
boundaries in the northeastern portion of the United States.
In response to these concerns, EPA and the States of Connecticut,
Massachusetts and Rhode Island signed a memorandum of understanding
(MOU) in February 1999. This MOU required EPA to take action to
redistribute the NOX emission reduction requirements among
the three States. In the MOU, the three States and EPA agreed that EPA
would propose a specific redistribution of the combined electric
generating stationary source (EGU) portion of the budget for the three
States.
Subsequent to the signing of the MOU, EPA took a final action that
changed the EGU portion of the budget for the three States in a
Technical Amendment to the NOX SIP Call published on May 14,
1999. EPA is now taking direct final action to redistribute the States'
budgets. The final redistribution that EPA is promulgating is slightly
different than the redistribution as stated in the MOU to reflect and
remain consistent with the May 14, 1999 changes to the budgets.
DATES: This rule is effective on November 1, 1999 without further
notice, unless EPA receives adverse comment by Ocotber 5, 1999. If such
comments are received, EPA will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Any written comments must be identified with Docket No. A-
99-13, must be identified as comments on the direct final rule and
companion proposal and must be submitted in duplicate to: EPA Air
Docket (6102), Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460. The docket is available for public inspection
and copying between 8:30 a.m. and 3:30 p.m., Monday through Friday, at
the address given above. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Kathryn Petrillo, Acid Rain Division
(6204J) U.S. Environmental Protection Agency, 401 M Street SW,
Washington DC 20460, telephone number (202) 564-9093; e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: EPA is publishing this rule without prior
proposal because EPA views this redistribution of the EGU portions of
Connecticut, Massachusetts and Rhode Island's NOX budgets as
noncontroversial and anticipates no adverse comment. EPA believes this
rule is not controversial for the following reasons: (1) Connecticut,
Massachusetts, Rhode Island and EPA signed an MOU agreeing to the
action taken by this rule; (2) the rule does not result in an overall
increase in NOX emissions; (3) the rule is consistent with
the final State budgets published in the May 14, 1999 Technical
Amendment to the NOX SIP Call; and (4) the rule is
consistent with the goals of the NOX SIP Call. However, in
the ``Proposed Rules'' section of today's Federal Register EPA is
publishing a separate document that will serve as a proposed rule to
redistribute the EGU portions of these States' budgets if EPA receives
any timely adverse comment. If EPA receives timely adverse comment, EPA
will publish a withdrawal in the Federal Register informing the public
that the direct final rule will not take effect. EPA will then address
all significant public comments in a subsequent final rule based on the
proposed rule. EPA will not institute a second comment period on this
action.
[[Page 49988]]
Any parties interested in commenting must do so at this time.
The information in this preamble is organized as follows:
I. Background
II. Determination of Budgets
III. Changes to the EGU Budgets for the States of Connecticut,
Massachusetts and Rhode Island
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Impact Analysis
B. Regulatory Flexibility Act: Small Entity Impacts
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
F. Executive Order 12898: Environmental Justice
G. Executive Order 12875: Enhancing the Intergovernmental
Partnerships
H. Executive Order 13016: Consultation and Coordination with Indian
Tribal Governments
I. National Technology Transfer and Advancement Act
J. Judicial Review
K. Congressional Review Act
I. Background
On October 27, 1998, EPA published a final action finding that
NOX emissions from emitting activities (sources) in 23
jurisdictions (22 States, including the States of Connecticut,
Massachusetts and Rhode Island, and the District of Columbia)
significantly contribute to nonattainment of the 1-hour and 8-hour
ozone NAAQS or will interfere with maintenance of the 8-hour NAAQS, in
one or more downwind States throughout the Eastern United States (63 FR
57356, October 27, 1998). Each of these jurisdictions (referred to
hereinafter as ``States'') is required to adopt and submit a SIP
revision containing control measures that will assure that sources in
the State reduce their NOX emissions sufficiently to
eliminate the amounts of NOX emissions that contribute
significantly to nonattainment or that will interfere with maintenance
in a downwind State. By eliminating these amounts of NOX
emissions, the control measures will assure that the remaining
NOX emissions will meet the States' NOX emissions
budget, as prescribed to each State in the amended May 14, 1999
Technical Amendments to the State's budgets. See 64 FR 26298, May 14,
1999. In today's action, EPA is promulgating adjusted State
NOX emissions budgets for Connecticut, Massachusetts and
Rhode Island. While this adjustment will lead to different emission
budgets for each of the three States, the combined budgets for the
three States will remain the same as the combined budgets for the three
States finalized in the May 14, 1999 Technical Amendments to the
NOX SIP Call.
Following EPA's finalization of the NOX SIP Call in the
fall of 1998, numerous parties filed petitions for review of the rule
with the D.C. Circuit. The petitions were consolidated into case no.
98-1497 and briefing of the case is now under way. On May 25, 1999, the
D.C. Circuit issued a stay of the requirement that States submit
revised SIPs in accordance with the NOX SIP call. That stay
continues pending further order of the Court. EPA is taking action
today to revise the budgets of Connecticut, Massachusetts, and Rhode
Island in anticipation of the lifting of the stay at some time in the
future.
II. Determination of Budgets
The EPA determined the overall NOX emission budgets for
each State by projecting the total amount of NOX emissions
that sources in each covered State would emit, in light of expected
growth, in 2007 taking into account measures required under the CAA.
The EPA then projected the total amount of NOX emissions
that all of the sources in each of those States would emit in 2007 if
each such State applied control measures that EPA determined to be
highly cost effective. The total amount of NOX emissions
remaining after application of EPA's assumed control measures is the
State's ``budget.'' Each State budget consists of smaller sector
budgets, including budgets for mobile sources, area sources, EGUs, and
non-EGU stationary sources. The smaller sector budgets exist only for
purposes of calculating the larger State budget; they are not
enforceable against a State. The specific methodologies used to
calculate these budgets are explained in section III of the final
NOX SIP Call rule. (63 FR 57405-439)
III. Changes to the EGU Budgets for the States of Connecticut,
Massachusetts and Rhode Island
After finalization of the NOX SIP Call, the State of
Connecticut approached EPA with concerns about the size of the EGU
portion of its State budget under the NOX SIP Call. These
concerns related to differences between the State's EGU budget under
the NOX SIP Call and the State's budget under Phase III of
the Ozone Transport Region's (OTR) program.
The OTR is comprised of the States of Connecticut, Delaware, Maine,
Maryland, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan
Statistical Area that includes the District of Columbia. The OTR was
created in 1990, under section 184 of the Clean Air Act, to address the
problems associated with ozone transport in the Northeast. On September
27, 1994, 11 of the States in the OTR and the District of Columbia
signed a Memorandum of Understanding agreeing to a regional strategy to
reduce NOX from power plants and other large fuel combustion
sources. This strategy involved a multi-phased approach and allowed
sources to demonstrate compliance through the use of a region-wide
trading program. Phase II of the program began on May 1, 1999, and
Phase III is scheduled to begin on May 1, 2003. Under Phase III of the
OTR strategy, Connecticut's budget for sources similar to the EGU
sources under the NOX SIP Call is larger than it is under
the EGU portion of the State's NOX SIP Call budget.
Conversely, the budgets for Massachusetts and Rhode Island are smaller
under Phase III of the OTR than the budgets are under the
NOX SIP Call.
The following table shows for the three States: the OTC Phase III
budgets, EGU budgets for sources similar to EGUs; the EGU budgets under
the NOX SIP call; the EGU budgets under the February 1999
MOU, and the EGU budgets under today's rule; and the compliance
supplement pool (a pool of 200,000 tons divided among the 23 affected
States according to their emission reduction responsibilities under the
NOX SIP Call) under the NOX SIP call and today's
rule.
Table 1
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Compliance
5/14/99 EGU EGU budget 5/14/99 supplement
OTC phase III portion of the EGU budget under direct compliance pool under
budget NOX SIP call under MOU final rule supplement direct final
budget pool rule
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CT...................................................... 4,477 2,652 4,549 4,564 549 473
[[Page 49989]]
MA...................................................... 13,789 15,145 13,203 13,245 397 473
RI...................................................... 626 997 982 985 15 15
CT, MA and RI........................................... 18,892 18,794 18,734 18,794 961 961
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Because Connecticut raised concerns, EPA and Connecticut,
Massachusetts and Rhode Island initiated discussions about reallocating
the EGU budgets for all three States. All parties agreed that any
reallocation of the budgets should not result in a higher combined
overall EGU budget for the three States. In fact, Connecticut,
Massachusetts and Rhode Island agreed that any reallocation of the
budget should actually be accompanied by an agreement among the three
States to meet a more stringent budget. In February 1999, the parties
signed an MOU.
In that MOU, EPA committed to propose a rulemaking to change the
EGU portion of the budgets for the three States. EPA also committed to
propose changes to the size of the compliance supplement pools for the
three States. In the MOU, EPA and the States agreed upon EGU budgets
and the compliance supplement pools for all three States. This
agreement was based on redistributing, among the three States, the EGU
portion of the combined budget for the three States and the combined
compliance supplement pool for the three States. These redistributions
were based upon the budgets and the compliance supplement pool as
finalized on October 27, 1998. In the October 27, 1998 action, the
final combined EGU budget for the three States was 18,734 tons and the
combined compliance supplement pool was 844 tons. On May 14, 1999, EPA
promulgated a Technical Amendment to the NOX SIP Call
amending the State budgets and the compliance supplement pool (64 FR
26298-306). The combined EGU budget for the three States in this
amendment was 18,794 tons and the combined compliance supplement pool
was 961 tons. In redistributing both the combined EGU budgets and the
combined compliance supplement pool, EPA started by distributing to
each of the three States, the number of tons agreed to in the MOU. This
resulted in State EGU budgets of 4,549 tons for Connecticut, 13,203
tons for Massachusetts and 982 tons for Rhode Island. EPA then
redistributed the remaining 60 tons in the combined States EGU budgets
using the same percentages used to distribute the original EGU portion
of the budget in the MOU (i.e., 24.3% for Connecticut, 70.5% for
Massachusetts and 5.2% for Rhode Island). EPA used a similar
methodology in redistributing the compliance supplement pool. First,
EPA distributed 422 tons to both Connecticut and Massachusetts because
this was what was agreed to in the MOU. Then EPA distributed 15 tons to
Rhode Island. EPA did this because Rhode Island did not receive any
compliance supplement pool allowances under the original budgets
promulgated on October 27, 1998 notice or in the MOU, but Rhode Island
did receive 15 tons of compliance supplement pool allowances under the
amended budgets finalized on May 14, 1999. Finally, EPA distributed the
remaining 102 tons based on the percentages used to distribute the
original compliance supplement pool in the MOU (50% for Connecticut and
50% for Massachusetts). The redistributed budgets and the redistributed
compliance supplement pools are also found in Table 1. Furthermore, all
three States agreed to further reduce their combined EGU budgets by at
least 5% and to retire that 5% to the benefit of the environment.
EPA believes that these revisions are consistent with the goals of
the NOX SIP Call. The NOX SIP Call specifically
allows, and in fact encourages, States to consider emissions trading as
a cost-effective means of achieving NOX reductions from
EGUs. The effect of the redistribution of the EGU portion of the
overall budget being promulgated in today's rule is no different than
the effect of a redistribution of similar magnitude of the EGU portion
of the budget that could occur if a State chose to participate in a
multi-State trading program. Furthermore, the magnitude of the changes
in the EGU budgets for the three States (i.e., 1,912 tons for
Connecticut, -1,900 tons for Massachusetts and -12 tons for Rhode
Island) is within a range that EPA found did not interfere with the
goal of the NOX SIP Call to reduce transport of significant
amounts of NOX to downwind non-attainment areas when
analyzing whether inter-State trading was an effective tool to use
under the NOX SIP Call. In that analysis, EPA saw
fluctuations of up to 9,500 tons for a given State (Docket # A-96-56).
In addition, as noted in the MOU, Connecticut, Massachusetts and
Rhode Island all belong to the same power pool. Since dispatch is
determined on the power pool level rather than the State level,
dispatch itself may result in redistribution of generation and
resulting emissions among the States in the power pool. EPA therefore
believes that a redistribution, based on the MOU, of budgets within
that power pool is appropriate if the same overall budget results.
Finally, the additional reductions that the three States have committed
to result in an additional reduction of 940 tons, which represents
0.17% of the region-wide EGU budget.
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Impact Analysis
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: 1. Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA determined that the October 27, 1998 NOX SIP Call
rulemaking was significant. Therefore, EPA submitted
[[Page 49990]]
the final rulemaking to OMB for review and prepared a Regulatory Impact
Analysis (RIA) entitled ``Regulatory Impact Analysis for the Regional
NOX SIP Call (September 1998).'' See 63 FR 57477.
This RIA assesses the costs, benefits, and economic impacts
associated with potential State implementation strategies for complying
with the NOX SIP Call rulemaking. Any written comments from
OMB to EPA and any written EPA response to those comments are included
in the NOX SIP Call docket (A-96-56 and A-9-35). The RIA is
available in hard copy by contacting the EPA Library at the address
under Addresses.
Today's direct final rule requires the same overall emission
reductions as under the October 27, 1998 NOX SIP Call.
Because the direct final rule does not impose any new regulatory
burdens and makes only minor changes to the October 27, 1998
NOX SIP Call, the direct final rule is not significant.
B. Regulatory Flexibility Act: Small Entity Impacts
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) (RFA), as
amended by the Small Business Regulatory Enforcement Fairness Act (Pub.
L. No. 104-121) (SBREFA), provides that whenever an agency is required
to publish a general notice of proposed rulemaking, the agency must
prepare and make available an initial regulatory flexibility analysis,
unless it certifies that the final direct rule, if promulgated, will
not have ``a significant economic impact on a substantial number of
small entities.'' 5 U.S.C. 605(b). Courts have interpreted the RFA to
require a regulatory flexibility analysis only when small entities will
be subject to the requirements of the rule. See Motor and Equip. Mfrs.
Ass'n v. Nichols, 142 F.3d 449 (D.C. Cir. 1998); United Distribution
Cos. v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996); Mid-Tex Elec. Co-op,
Inc. v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985) (agency's
certification need only consider the rule's impact on entities subject
to the rule).
EPA determined that the October 27, 1998 NOX SIP Call
does not establish requirements applicable to small entities. Instead,
the NOX SIP Call requires States to develop, adopt, and
submit SIP revisions that will achieve the necessary NOX
emissions reductions, and leaves to the States the task of determining
how to obtain those reductions, including which entities to regulate.
Moreover, because affected States have discretion to choose which
sources to regulate and how much emissions reductions each selected
source has to achieve, EPA could not predict the effect of the rule on
small entities.
For these reasons, EPA certified that the October 27, 1998
NOX SIP Call would not have a significant impact on a
substantial number of small entities. Nevertheless, the Agency
conducted a more general analysis of the potential impact on small
entities of possible State implementation strategies. This analysis is
documented in the RIA. See 63 FR 57478.
Since today's direct final rule does not change the regulatory
burdens under, and makes only minor changes to, the October 27, 1998
NOX SIP Call, the RIA analysis and the basis for the
NOX SIP Call certification are applicable to the final
direct rule. Therefore, I certify that this action will not have a
significant impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (P.L. 104-4)
(UMRA), establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, 2
U.S.C. 1532, EPA generally must prepare a written statement, including
a cost-benefit analysis, for any proposed or final rule that ``includes
any Federal mandate that may result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more * * * in any one year.'' A ``Federal mandate'' is
defined under section 421(6), 2 U.S.C. 658(6), to include a ``Federal
intergovernmental mandate'' and a ``Federal private sector mandate.'' A
``Federal intergovernmental mandate,'' in turn, is defined to include a
regulation that ``would impose an enforceable duty upon State, local,
or tribal governments,'' section 421(5)(A)(i), 2 U.S.C. 658(5)(A)(i),
except for, among other things, a duty that is ``a condition of Federal
assistance,'' section 421(5)(A)(i)(I). A ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector,'' with certain exceptions, section 421(7)(A),
2 U.S.C. 658(7)(A).
Before promulgating an EPA rule for which a written statement is
needed under section 202 of the UMRA, section 205, 2 U.S.C. 1535, of
the UMRA generally requires EPA to identify and consider a reasonable
number of regulatory alternatives and adopt the least costly, most
cost-effective, or least burdensome alternative that achieves the
objectives of the rule.
For several reasons, EPA did not reach a final conclusion as to the
applicability of the requirements of UMRA to the October 27, 1998
NOX SIP Call. First, EPA stated that it is questionable
whether a requirement to submit a SIP revision would constitute a
federal mandate in any case. The obligation for a state to revise its
SIP that arises out of sections 110(a) and 110(k)(5) of the CAA is not
legally enforceable by a court of law and at most is a condition for
continued receipt of highway funds. Therefore, it is possible to view
an action requiring such a submittal as not creating any enforceable
duty within the meaning of section 421(5)(9a)(I) of UMRA (2 U.S.C. 658
(a)(I)). Even if it did, the duty could be viewed as falling within the
exception for a condition of Federal assistance under section
421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I)).
However, notwithstanding these issues, EPA prepared the statement
that would be required by UMRA if its statutory provisions applied to
the October 27, 1998 NOX SIP Call and consulted with
governmental entities as would be required by UMRA for the
NOX SIP Call. Consequently, EPA determined that it is not
necessary to reach a conclusion as to the applicability of the UMRA
requirements to the October 27, 1998 NOX SIP Call. See 63 FR
57478.
Today's direct final rule does not change the regulatory burdens
under, and makes only minor changes to, the October 27, 1998
NOX SIP Call. Further, the written statement prepared for,
and the consultations conducted in connection with, the October 27,
1998 NOX SIP Call are fully applicable to the final direct
rule. Consequently, for the reasons set forth in the preamble of the
October 27, 1998 NOX SIP Call, it is not necessary to reach
a conclusion as to the applicability of the UMRA requirements.
D. Paperwork Reduction Act
Today's direct final rule does not impose any new information
collection burden subject to the Paperwork Reduction Act (44 U.S.C.
3501 et seq.). The three States subject to this rule, Connecticut,
Massachusetts and Rhode Island, will be subject to the same reporting
requirements that they are subject to under the October 27, 1998
NOX SIP Call.
E. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
The Executive Order 13045 applies to any rule that EPA determines
(1) ``economically significant'' as defined
[[Page 49991]]
under Executive Order 12866 and (2) the environmental health or safety
risk addressed by the rule has a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency. EPA determined that the October 27, 1998 NOX
SIP Call is not subject to Executive Order 13045 because it does not
involve decisions on environmental health risks or safety risks that
may disproportionately affect children. However, the Agency conducted a
general analysis of the potential changes in ozone and particulate
matter levels experienced by children as a result of the October 27,
1998 NOX SIP Call; these findings are presented in the RIA.
See 63 FR 57479.
Today's direct final rule does not change the overall emission
reductions under the October 27, 1998 NOX SIP Call.
Consequently, the determination concerning Executive Order 13045 and
the RIA analysis are fully applicable to the final direct rule.
F. Executive Order 12898: Environmental Justice
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. The Agency
conducted a general analysis of the potential changes in ozone and
particulate matter levels that may be experienced by minority and low-
income populations as a result of the October 27, 1998 NOX
SIP Call; these findings are presented in the RIA. See 63 FR 57479.
Today's direct final rule does not change the overall emission
reductions under the October 27, 1998 NOX SIP Call.
Consequently, the RIA analysis is fully applicable to the final direct
rule.
G. Executive Order 12875: Enhancing The Intergovernmental Partnerships
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, any written communications
from the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. As explained in the discussion of UMRA, the direct final rule
does not impose an enforceable duty on these entities. Accordingly, the
requirements of section 1(a) of Executive Order 12875 do not apply to
this rule.
H. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. The rule applies only to
certain States and does not require Indian tribal governments to take
any action. Moreover, EPA does not, by today's rule, call on States to
regulate NOX sources located on tribal lands. Accordingly,
the requirements of section 3(b) of Executive Order 13084 do not apply
to this rule.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (Pub L. No. 104-113, section 12(d), 15 U.S.C. 272 note)
(NTTAA), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
Today's direct final rule does not include any environmental
monitoring and measurement provisions. Therefore, section 12(d) of the
NTTAA does not apply.
J. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by EPA. This
Section provides, in part, that petitions for review must be filed in
the Court of Appeals for the District of Columbia Circuit if (i) the
agency action consists of ``nationally applicable regulations
promulgated, or final action taken, by the Administrator,'' or (ii)
such action is locally or regionally applicable, if ``such action is
based on a determination of nationwide scope or effect and if in taking
such action the Administrator finds and publishes that such action is
based on such a determination.''
As discussed in the preamble to the NOX SIP Call, any
final action related to the NOX SIP Call is ``nationally
applicable'' and ``of nationwide scope or effect'' within the meaning
of section 307(b)(1). See 63 FR 57480. Thus, any petitions for review
of final actions regarding the NOX SIP Call must be filed in
the Court of Appeals for the District of Columbia Circuit within 60
days from the date final action is published in the Federal Register.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement
[[Page 49992]]
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report,
which includes a copy of the rule, to each House of the Congress and to
the Comptroller General of the United States. The EPA will submit a
report containing this rule and other required information to the U.S.
Senate, the U.S. House of Representatives, and the Comptroller General
of the United States prior to publication of the rule in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective November 1, 1999.
List of Subjects in 40 CFR Part 51
Environmental protection, Air pollution control, Administrative
practice and procedure, Carbon monoxide,, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Transportation, Volatile
organic compounds.
Dated: September 7, 1999.
Carol M. Browner,
Administrator.
40 CFR part 51 is amended as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
1. The authority citation for part 51 continues to read as follows:
Authority: 42 U.S.C. 7410, 7414, 7421, 7470-7479, 7491, 7492,
7601, 7602.
Subpart G--Control Strategy [Amended]
2. Section 51.121 is amended to revise paragraphs (e)(2) and
(e)(3)(iii) to read as follows:
Sec. 51.121 Findings and requirements for submission of State
implementation plan revisions relating to emissions of oxides of
nitrogen.
* * * * *
(e) * * *
(2) The State-by-State amounts of the NOX budget,
expressed in tons, are as follows:
------------------------------------------------------------------------
State Budget
------------------------------------------------------------------------
Alabama................................................. 172,037
Connecticut............................................. 44,993
Delaware................................................ 22,789
District of Columbia.................................... 6,672
Georgia................................................. 189,634
Illinois................................................ 274,799
Indiana................................................. 238,970
Kentucky................................................ 155,619
Maryland................................................ 81,625
Massachusetts........................................... 83,396
Michigan................................................ 224,582
Missouri................................................ 128,146
New Jersey.............................................. 100,133
New York................................................ 240,123
North Carolina.......................................... 168,373
Ohio.................................................... 250,930
Pennsylvania............................................ 257,441
Rhode Island............................................ 9,798
South Carolina.......................................... 124,211
Tennessee............................................... 197,664
Virginia................................................ 185,027
West Virginia........................................... 91,216
Wisconsin............................................... 136,172
---------------
Total............................................... 3,384,350
------------------------------------------------------------------------
(3) * * *
(iii) The State-by-State amounts of the compliance supplement pool
are as follows:
------------------------------------------------------------------------
Compliance
supplement
State pool (tons of
NOX)
------------------------------------------------------------------------
Alabama................................................. 11,350
Connecticut............................................. 473
Delaware................................................ 127
District of Columbia.................................... 0
Georgia................................................. 11,179
Illinois................................................ 17,586
Indiana................................................. 20,390
Kentucky................................................ 14,495
Maryland................................................ 3,840
Massachusetts........................................... 473
Michigan................................................ 11,103
Missouri................................................ 10,783
New Jersey.............................................. 1,479
New York................................................ 2,370
North Carolina.......................................... 10,544
Ohio.................................................... 22,320
Pennsylvania............................................ 15,662
Rhode Island............................................ 15
South Carolina.......................................... 5,122
Tennessee............................................... 10,557
Virginia................................................ 6,914
West Virginia........................................... 16,410
Wisconsin............................................... 6,808
---------------
Total............................................... 200,000
------------------------------------------------------------------------
* * * * *
[FR Doc. 99-23914 Filed 9-14-99; 8:45 am]
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