[Federal Register Volume 65, Number 248 (Tuesday, December 26, 2000)]
[Rules and Regulations]
[Pages 81366-81369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32842]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[FRL-6922-5]
Final Rule Making Findings of Failure to Submit Required State
Implementation Plans for the NOX SIP Call
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking final action making findings, under the
Clean Air Act (CAA), that Virginia, West Virginia, Alabama, Kentucky,
North Carolina, South Carolina, Tennessee, Illinois, Indiana, Michigan,
Ohio, and the District of Columbia failed to make complete State
implementation plan (SIP) submittals required under the CAA. Under the
CAA and EPA's nitrogen oxides (NOX) SIP call regulations,
these States were required to submit SIP measures providing for
reductions in the emissions of NOX, an ozone precursor. The
EPA is continuing to work with these States to assist them in adopting
State plans that meet the requirements of the NOX SIP Call
and is hopeful that States will submit fully approvable plans. The EPA
is taking this step today to continue the progress being made towards
reducing NOX emissions in the eastern portion of the country
because of the significant public health benefits of those reductions.
This action triggers the 18-month time clock for mandatory application
of sanctions in these States under the CAA. This action also triggers
the requirement that EPA promulgate a Federal implementation plan (FIP)
within 2 years of making the finding.
EFFECTIVE DATE: January 25, 2001.
ADDRESSES: A docket containing information relating to this rulemaking
(Docket No. A-98-12) is available for public inspection at the Air and
Radiation Docket and Information Center (6102), U.S. Environmental
Protection Agency, 401 M Street, SW, room M-1500, Washington, DC 20460,
telephone (202) 260-7548, between 8:00 a.m. and 5:30 p.m., Monday
through Friday, excluding legal holidays. A
[[Page 81367]]
reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: General questions concerning this
notice should be addressed to Jan King, Office of Air Quality Planning
and Standards, Air Quality Strategies and Standards Division, MD-15,
Research Triangle Park, NC 27711; telephone (919) 541-5665. Legal
questions should be addressed to Howard J. Hoffman, Office of General
Counsel, 1200 Pennsylvania Avenue, NW, MC-2344A, Washington, DC 20460,
telephone (202) 564-5582.
SUPPLEMENTARY INFORMATION: You can find a copy of today's action at
http://www.epa.gov/ttn/rto.
The contents of this preamble are listed in the following outline:
I. Background
II. What Action is EPA Taking Today?
III. Administrative Requirements
A. Notice and Comment Under the Administrative Procedure Act (APA)
B. Executive Order 12866 (Regulatory Planning and Review)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act of 1995 (UMRA)
E. Submission to Congress and the General Accounting Office
F. Paperwork Reduction Act
G. Judicial Review
I. Background
For almost 30 years, Congress has focused major efforts on curbing
ground-level (tropospheric) ozone. In 1990, Congress amended the CAA to
better address, among other things, continued nonattainment of the 1-
hour ozone National Ambient Air Quality Standards (NAAQS) and transport
of air pollutants across State boundaries.
The 1990 Amendments reflect general awareness by Congress that
ozone is a regional, as well as local problem. Ozone and
NOX, one of its precursors, may be transported long
distances across State lines to combine with ozone and precursors
downwind, thereby worsening the ozone problems downwind. This transport
phenomenon is a major reason for the persistence of the ozone problem,
notwithstanding the imposition of numerous emission controls, both
Federal and State, across the country.
Section 110(a)(2)(D) of the CAA is one of the most important tools
for addressing the problem of transport. This section states that
States must adopt SIPs that contain provisions prohibiting sources
within the State from contributing significantly to nonattainment
problems in, or interfering with maintenance by, downwind States.
Section 110(k)(5) of the CAA authorizes EPA to find that a SIP is
substantially inadequate to meet any CAA requirement. It further
authorizes EPA to require a State with an inadequate SIP to submit,
within a specified period, a SIP revision to correct the inadequacy.
By notice dated October 27, 1998, EPA issued its final rule under
sections 110(a)(2)(D) and 110(k)(5) NOX SIP call rules
finding that emissions of NOX from 22 States and the
District of Columbia significantly contribute to downwind areas'
nonattainment of the 1-hour ozone NAAQS (63 FR 57356). In the
NOX SIP call rule, as modified by the March 2, 2000
technical amendment (65 FR 11222), EPA also established emissions
budgets for NOX that each of the identified States must meet
through enforceable SIP measures. The SIP call rule addressed both the
1-hour ozone NAAQS in existence since 1979 and a revised 8-hour NAAQS
EPA promulgated in 1997. Various industries and States challenged the
final NOX SIP call rule by filing petitions for review in
the U.S. Court of Appeals for the District of Columbia (D.C. Circuit).
\1\
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\1\ In a separate legal challenge to EPA's revised NAAQS for
ozone and particulate matter, the D.C. Circuit remanded the 8-hour
ozone NAAQS. American Trucking Associations, Inc. v. EPA, 175 F.3d
1027 on rehearing 195 F.3d 4 (D.C. Cir. 1999). The Supreme Court is
considering this case. Because EPA believes we should not continue
implementation efforts under section 110 due to the uncertainty
created by the DC Circuit's decision, and the continued litigation,
EPA indefinitely stayed the NOX SIP call as it applies
for the purposes of the 8-hour NAAQS (65 FR 56245, September 18,
2000), including the SIP submission obligation. Therefore, EPA is
making no findings with respect to the 8-hour basis for the
NOX SIP call.
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The September 24, 1998 NOX SIP called required States to
submit SIP revisions by September 30, 1999. State Petitioners
challenging the NOX SIP call filed a motion requesting the
Court to stay the submission schedule until April 27, 2000. In
response, in May 1999, the DC Circuit issued a stay of the SIP
submission deadline pending further order of the Court. Michigan versus
EPA, No. 98-1497 (D.C. Cir., May 25, 1999) (order granting stay in
part).
In a separate legal challenge to EPA's revised NAAQS for ozone, the
D.C. Circuit remanded the 8-hour ozone NAAQS. American Trucking
Associations, Inc. v. EPA, 175 F.3d 1027 upon rehearing 195 F.3d 4
(D.C. Cir. 1999). The Supreme Court is considering this case. Prior to
presenting argument in the SIP call case, EPA informed the court that
it would stay the 8-hour basis of the SIP call and requested that the
court stay its consideration of the 8-hour basis of the SIP call due to
the uncertainties created by the litigation. The EPA indefinitely
stayed the NOX SIP call as it applies for the purposes of
the 8-hour NAAQS (65 FR 56245, September 18, 2000).
On March 3, 2000, the court of appeals issued an opinion, largely
upholding the 1-hour basis for the NOX SIP call. However,
the court vacated and remanded the rule as it applied to three States--
Wisconsin, Georgia and Missouri--on the basis that the record for the
1-hour standard did not support EPA's determinations with respect to
these three States. The court also remanded, but did not vacate, two
other minor issues--the definition of an electric generating unit, as
applied to cogeneration units, and the control level assumed for
internal combustion engines.
On April 11, 2000, in light of the court's favorable decision, EPA
filed a motion with the court to lift the stay of the SIP submission
date. The EPA requested that the court lift the stay as of April 27,
2000. The EPA recognized, however, that at the time the stay was
issued, States had approximately 4 months (128 days) remaining to
submit SIPs. Therefore, EPA's motion to lift the stay indicated that
EPA would allow States until September 1, 2000 to submit SIPs
addressing the SIP call.\2\ On June 22, 2000, the Court granted EPA's
request in part. The Court ordered that EPA allow the States 128 days
from the June 22, 2000 date of the order to submit their SIPs.\3\
Therefore, SIPs were due October 30, 2000.\4\ Because the court vacated
the rule as to Wisconsin, Georgia, and Missouri, these States were not
required to submit SIPs by that date.
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\2\ In the April 11 letters to the States, EPA recognized that
Wisconsin, Georgia and Missouri were not required to submit SIPs
because the court vacated (and remanded to EPA for further
consideration) the NOX SIP call rule as it applied to
those States. Recognizing that the court remanded (but did not
vacate) as to two limited issues, EPA also provided that the States
that remained subject to the SIP call could choose to submit SIPs
addressing only the portion of the NOX budgets that were
not affected by the courts remand of two issues: the definition of
an electric generating unit and the level of control for internal
combustion engines.
\3\ The EPA determined that SIPs were due on October 30, 2000,
which is the first business day following the expiration of the 128-
day period.
\4\ The EPA's stay of the 8-hour basis stayed all aspects of the
rule for purposes of the 8-hour standard, including their obligation
to submit a SIP. Thus, the findings EPA is making are not for
purposes of the 8-hour basis of the SIP call.
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II. What Action is EPA Taking Today?
Today, EPA is making findings of failure to officially submit
complete submissions to their SIPs, including adopted rules, in
response to the SIP call. The States that are receiving these
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findings are Virginia, West Virginia, Alabama, Kentucky, North
Carolina, South Carolina, Tennessee, Illinois, Indiana, Michigan, Ohio,
and the District of Columbia. The EPA intends to continue working with
these States so that they can submit approvable adopted rules as soon
as possible. EPA is issuing findings today to help ensure continued
progress in reducing NOX emissions in the eastern portion of
the country.
These findings start an 18-month sanctions clock; if the State
fails to make the required submittal which EPA determines is complete
within that period, the emissions offset sanction will apply in
accordance with 40 CFR 51.121(n) and 52.31. The offset sanction
requires new or modified sources subject to a CAA section 173 new
source review program for ozone to obtain reductions in existing
emissions in a 2:1 ratio to offset their new emissions.\5\ If 6 months
after the sanction is imposed, the State still has not made a complete
submittal that EPA has determined is complete, limitations on the
approval of Federal highway funds will apply in accordance with
51.212(a) and 52.31. Conversely, the 18-month clock, or additional 6-
month clock, stops and the sanctions will not take effect (or will be
lifted) when EPA finds that the State has made a complete SIP submittal
under the SIP call.
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\5\ In general, the areas subject to a section 173 new source
review program are those areas with areas designated nonattainment
for the 1-hour ozone standard. However, all areas in the Northeast
Ozone Transport Region, regardless of designation, are subject to
this requirement.
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In addition, CAA section 110(c) provides that EPA can promulgate a
FIP immediately after making the findings, as late as 2 years after
making the findings, or any time in between. Public health in downwind
States depends on reductions being made upwind, and it is important
that sources in States that have met their obligations under the
NOX SIP call are not at a competitive disadvantage to
sources in other States subject to the NOX SIP call. The EPA
will take these needs into consideration as it reviews taking any
action regarding FIPs.
Our goal is to have approvable SIPs that meet the requirements of
the NOX SIP call. We remain ready to work with the States to
develop fully approvable SIPs, which would eliminate the need for EPA
to promulgate a FIP or replace any FIP that EPA adopts. The process of
developing the SIP call rulemaking offered opportunities for
collaboration, and such opportunities remain as the States continue to
develop their SIPs.
Recently, EPA sent letters to the Governors of the affected States
describing the status of the States' effort and these findings in more
detail. These letters are included in the docket to this rulemaking.
III. Administrative Requirements
A. Notice and Comment Under the Administrative Procedure Act
This notice is final agency action but is not subject to notice-
and-comment requirements of the Administrative Procedures Act (APA), 5
U.S.C. 553(b). The EPA invokes, consistent with past practice (for
example, 61 FR 36294), the good cause exception pursuant to the APA, 5
U.S.C. 553(b)(3)(B). The EPA believes that because of the limited time
provided to make findings of failure to submit and findings of
incompleteness regarding SIP submissions or elements of SIP submission
requirements, Congress did not intend such findings to be subject to
notice-and-comment rulemaking. Notice and comment are unnecessary
because no significant EPA judgment is involved in making a
nonsubstantive finding of failure to submit SIPs or elements of SIP
submissions required by the CAA. Furthermore, providing notice and
comment would be impracticable because of the limited time provided
under the statute for making such determinations. Finally, notice and
comment would be contrary to the public interest because it would
divert agency resources from the critical substantive review of
complete SIPs. See 58 FR 51270, 51272, n.17 (October 1, 1993); 59 FR
39832, 39853 (August 4, 1994).
B. Executive Order 12866 (Regulatory Planning and Review)
This action is exempt from OBM review under Executive Order 12866.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact on
small entities of any rule subject to the notice-and-comment rulemaking
requirements. Because this action is exempt from such requirements, as
described under (A) above, it is not subject to the RFA.
D. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 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.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of title II of the UMRA) for State, local, or tribal
governments or the private sector. The various CAA provisions discussed
in this notice require the States to submit SIPs. This notice merely
provides a finding that the States have not met those requirements.
This notice does not, by itself, require any particular action by any
State, local, or tribal government, or by the private sector.
For the same reasons, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the APA, as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), EPA
submitted, by the effective date of this rule, 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 General
Accounting Office. This rule is not a ``major rule'' as defined by APA
804(2), as amended.
The EPA is issuing this action as a rulemaking. There is a question
as to whether this action is a rule of ``particular applicability''
under
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Sec. 804(3)(A) of the APA as amended by SBREFA, and thus exempt from
the congressional submission requirements, because this rule applies
only to named States. In this case, EPA has decided to err on the side
of submitting this rule to Congress, but will continue to consider this
issue of the scope of the exemption for rules of ``particular
applicability.''
F. Paperwork Reduction Act
This rule does not contain any information collection requirements
which require OMB approval under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
G. Judicial Review
Under CAA section 307(b)(1), a petition to review today's action
may be filed in the Court of Appeals for the District of Columbia
within 60 days of December 26, 2000.
Dated: December 19, 2000.
Robert Perciasepe,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 00-32842 Filed 12-22-00; 8:45 am]
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