[Federal Register Volume 66, Number 184 (Friday, September 21, 2001)]
[Rules and Regulations]
[Pages 48567-48577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23476]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 97
[FRL-7058-2]
RIN 2060-AJ47
Findings of Significant Contribution and Rulemaking on Section
126 Petitions for Purposes of Reducing Interstate Ozone Transport--
Federal NOX Budget Trading Program, Rule Revision
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is amending the
Federal NOX Budget Trading Program regulations to revise the
allowance allocations for certain NOX Budget units subject
to the program. In January 2000, EPA took final action (the January
2000 final rule) under section 126 of the Clean Air Act (CAA) on
petitions filed by eight Northeastern States seeking to mitigate
interstate transport of nitrogen oxides ( NOX), one of the
precursors of ground-level ozone. EPA determined that a number of large
electric generating units (EGUs) and large industrial boilers and
turbines (non-EGUs) named in the petitions emit in violation of the CAA
prohibitions against significantly contributing to nonattainment or
maintenance problems in the petitioning States. EPA also established
the Federal NOX Budget Trading Program as the control remedy
for these sources, determined allowable emissions for the sources, and
allocated authorizations to emit NOX (i.e., NOX
allowances) to the sources.
After promulgation of EPA's January 2000 final rule, some owners,
or associations of owners, of EGUs or non-EGUs filed petitions with the
U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) challenging, among other things, the allowance allocations for
certain units under the rule. Subsequently, EPA entered into
settlements with these owners or associations of owners. Today's action
finalizes revised allocations for these units in a manner consistent
with the settlements.
In addition, after promulgation of the January 2000 final rule,
owners of non-EGUs requested EPA to correct allowance allocations for
two other units under the rule. EPA responded that it was treating the
requests as requests for reconsideration of the two units' allocations
under the rule and would propose to revise the allocations. Today's
action finalizes revised allocations for these units.
DATES: The final rule is effective October 22, 2001.
ADDRESSES: Docket No. A-97-43, containing supporting information used
in developing today's final rule, is available for public inspection
and copying between 8:00 a.m. and 4:00 p.m., Monday through Friday, at
EPA's Air and Radiation Docket and Information Center at the above
address. EPA may charge a reasonable fee for copying.
FOR FURTHER INFORMATION CONTACT: Dwight C. Alpern, at (202) 564-9151,
U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW
(6204J), Washington, DC 20460; or the Acid Rain Hotline at (202) 564-
9089.
SUPPLEMENTARY INFORMATION:
Availability of Related Information
The official record for this rulemaking, as well as the public
version, has been established under Docket No. A-97-43 (including
comments and data submitted electronically as described below). A
public version of this record, including printed, paper versions of
electronic comments, that does not include any information claimed as
confidential business information, is available for inspection from
8:00 a.m. to 4:00 p.m. Monday through Friday, excluding legal holidays.
The official rulemaking record is located at the address in the
ADDRESSES section. In addition, the Federal Register rulemaking actions
under section 126 and the associated documents are located at http://www.epa.gov/ttn/rto/126.
EPA has issued a separate rule on NOX transport
entitled, ``Finding of Significant Contribution and Rulemaking for
Certain States in the Ozone Transport Assessment Group Region for
Purposes of Reducing Regional Transport of Ozone'' (the NOX
State implementation plan (NOX SIP) call). The rulemaking
docket for that rule contains information and analyses that were relied
on in the January 2000 final rule. In promulgating the January 2000
proposed rule, EPA incorporated by reference the entire NOX
SIP call record. Documents related to the NOX SIP call are
available for inspection in Docket No. A-96-56 at the address and times
given above. In addition, certain documents associated with the
NOX SIP
[[Page 48568]]
call are located at http://www.epa.gov/ttn/oarpg/otagsip.html.
Outline
The information in this preamble is organized as follows:
I. Background
II. Final Rule Revisions
A. Rationale for revising units' allocations.
B. Final approach for obtaining allowances for units' revised
allocations.
C. Amount of allowances for units' revised allocations.
D. Changes to regulatory text.
III. Administrative Requirements
A. Executive Order 12866: Regulatory Impacts 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 13132: Federalism
H. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
I. National Technology Transfer and Advancement Act
J. Executive Order 13211: Energy Effects
K. Congressional Review Act
I. Background
In January 2000, EPA took final action under section 126 of the CAA
on petitions filed by eight Northeastern States seeking to mitigate
interstate transport of NOX.\1\ 65 FR 2674 (January 18,
2000). Section 126 of the CAA authorizes a downwind State to petition
EPA for a finding that an existing or new (or modified) major
stationary source or a group of such sources emits or would emit in
violation of section 110(a)(2)(D)(i) by contributing significantly to
nonattainment of a National Ambient Air Quality Standard or interfering
with maintenance of such a standard in a downwind State. EPA determined
that certain EGUs and non-EGUs named in the petitions emit in violation
of the CAA prohibitions against significantly contributing to
nonattainment or maintenance problems in the petitioning States. The
EGUs and non-EGUs covered by the January 2000 final rule are in the
following States or portions of States and the District of Columbia:
Delaware; Indiana; Kentucky; Maryland; Michigan; North Carolina; New
Jersey; New York; Ohio; Pennsylvania; Virginia; and West Virginia. 65
FR 2675.
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\1\ This background is for the convenience of the reader to
understand better the final revisions in sections II.B.2, II.C, and
II.D below. EPA did not reconsider or request comment on any of the
provisions in part 97, except to the extent discussed in preamble
sections II.B.2, II.C, and II.D of the December 2000 proposed rule
that initiated the instant rulemaking. See 65 FR 80398, 80402-4
(December 21, 2000).
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EPA established the Federal NOX Budget Trading Program
as the control remedy for these sources. EPA determined allowable
emissions for the sources and allocated NOX allowances to
the sources. Under this program, an affected unit (referred to as a ``
NOX Budget unit'') may buy or sell allowances but must hold,
after the end of the ozone season, a number of allowances at least
equal to the number of tons of NOX that the unit emitted
during that ozone season.
For purposes of allocating allowances, EPA set for each State (or
portion of State) NOX emission budgets (in tons of
NOX per ozone season) for EGUs and non-EGUs. The EGU budget
\1a\ for each State is the larger of the total ozone season heat input
for EGUs in the State for 1995 or 1996, increased by a growth rate
through 2007, and multiplied by a control level of 0.15 lb.
NOX per mmBtu. The non-EGU budget \2\ for each State is the
non-EGU ozone season NOX emissions in the State for 1995,
increased by a growth rate through 2007, at a 60 percent control level.
EPA then allocated allowances to each existing unit, based on the
unit's historical heat input. For EGUs, the average of the two highest
ozone season heat inputs from 1995-1998 was used as the historical heat
input. For non-EGU's, the 1995 ozone season heat input or, if data were
available, the average of the two highest ozone season heat inputs from
1995-1998 was used as the historical heat input. 40 CFR 97.42(a). EPA
also adjusted each unit's allocations so that the total number of
allowances allocated to EGUs and the total number of allowances
allocated to non-EGUs in a given State equaled 95 percent of the EGU
budget and of the non-EGU budget respectively for that State. 40 CFR
97.42(b) and (c). Five percent of the budget was reserved for
allocations to new units.
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\1a\ For details on the budget calculations, see the January 18,
2000 Federal Register Notice.
\2\ Ibid.
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After EPA promulgated the January 2000 final rule, owners, or
associations of owners, of EGUs or non-EGUs filed petitions with the
D.C. Circuit challenging, among other things, the allowance allocations
for certain units in the Federal NOX Budget Trading Program
regulations. Subsequently, EPA entered into settlements with some of
these owners and associations of owners. Today's action finalizes
revised allowance allocations for these units, in a manner consistent
with the settlements.
In addition, after promulgation of the January 2000 final rule,
owners of non-EGUs submitted letters to EPA requesting correction of
the allowance allocations for two other units under the rule. EPA
responded that it was treating the letters as requests for
reconsideration of the two units' allocations under the rule and would
propose to revise the allocations. Today's action finalizes revised
allocations for these units.
II. Final Rule Revisions
EPA is adopting specific, limited revisions to provisions of the
Federal NOX Budget Trading Program rule, i.e., part 97, in
order to change the NOX allowance allocations for certain
NOX Budget units. In today's final rule, EPA is specifying
which units will receive revised allocations, how EPA will obtain the
additional allowances used for the revised allocations, and what will
be the amount of each unit's revised allocation. As discussed below,
EPA is revising the allocations for the units discussed in section II.A
of today's preamble. To provide the revised allocations, EPA is using
allowances that were allocated initially to units that EPA has
subsequently determined are not NOX Budget units and
therefore not subject to the Federal NOX Budget Trading
Program. This approach to obtaining allowances for the revised
allocations is discussed in section II.B. In section II.C, EPA
discusses the amount of each unit's revised allocation.
The specific rule revisions necessary to implement the above-
described approach are discussed in section II.D of today's preamble.
EPA is revising Appendices A and B to part 97 in order to include
revised allocations for the units identified in section II.A and remove
allocations for some other units that EPA has previously determined not
to be NOX Budget units.
EPA did not consider, or request comment on, any other changes to
part 97 or the January 2000 final rule. The December 2000 proposed rule
was limited to changes to part 97 that are necessary either: to correct
the allocations for the units specifically identified here; or to
provide the Administrator general authority to address similar
allocation-quantity issues that may arise in the future.
A. Rationale for Revising Units' Allocations
In today's final rule, EPA is revising allocations for the
following units:
1. A group of units referred to as ``stranded'' units: Unit 0B7,
plant 00003,
[[Page 48569]]
Union Carbide--South Charleston Plant, Kanawha County, West Virginia;
and the Package Boiler at Weyerhaeuser Company Plymouth, plant 0069,
Martin County and Power Boiler No. 2 at Weyerhaeuser Company New Bern
Mill, plant 0104, Craven County in North Carolina;
2. SEI Birchwood, plant 12 (``Birchwood'');
3. A group of all West Virginia non-EGUs: Unit 612, plant 00001,
Dupont-Belle, Kanawha County; Unit 006, plant 00001, Elkem Metals
Company L.P.--Alloy Plant, Fayette County; Units 001 and 003, plant
00002, PPG Industries, Inc., Marshall County; Units 010, 011, and 012,
plant 00007, Aventis Cropscience, Kanawha County; and Unit 0B6, plant
00003, Union Carbide--South Charleston Plant, Kanawha County;
4. Riley Bark Boiler, Plant 0159, Blue Ridge Paper Products
Company, Haywood County, North Carolina (``Blue Ridge''); and
5. Unit 0056, plant K3249, Michigan State University, Ingham
County, Michigan (``Michigan State'').
In the December 2000 proposed rule, EPA discussed in detail the
circumstances concerning EPA's original determinations in the January
2000 final rule of the allocations for these units. 65 FR 80398, 80399-
400 (December 21, 2000). EPA then evaluated these circumstances and
provided the reasons for the proposed conclusion that the respective
units' allocations in the January 2000 final rule should be revised. In
particular, EPA proposed to find, for the stranded units and Birchwood,
that the owners did not have a reasonable opportunity to comment on the
allocations for their units. EPA proposed that the allocations should
be revised based on corrected data. 65 FR 80400. With regard to all
non-EGUs in West Virginia, EPA proposed to find that the owners of the
units agreed that the allowances had been incorrectly distributed among
the units due to the submission of erroneous data to EPA. EPA proposed
that the allowances should be redistributed among those units to
reflect the distribution agreed upon by those owners. Id. With regard
to the Blue Ridge and Michigan State units, EPA proposed to find that
it had misinterpreted the comments submitted by the units' owners and
proposed that the allocations should be revised to reflect the correct
interpretation of those comments. Id.
No commenters objected to the above-described proposed findings
concerning any of the units or to the proposals to revise the units'
allocations. Based on the reasons set forth in the December 2000
proposed rule and on the supporting record, EPA is today adopting as
final these findings and conclusions.
In addition, one commenter requested that EPA address the status
under the NOX Budget Trading Program of two additional units
not addressed in the December 2000 proposed rule. Specifically, the
commenter requested that EPA determine that one unit for which an
allocation is provided in the January 2000 final rule (i.e., Point 004,
plant 0006, International Paper--Franklin (formerly Union Camp Corp/
Fine Paper Div), Isle of Wright County, Virginia) is not actually a
NOX Budget unit and is not subject to the requirements of
the NOX Budget Trading Program. The commenter also requested
that EPA determine that a second unit that was not allocated allowances
(i.e., Unit 17, plant 0006, International Paper--Franklin, Isle of
Wright County, Virginia) is actually a NOX Budget unit and
subject to the program and should receive an allocation.
With regard to the requested determination that the first unit is
not a NOX Budget unit, part 97 already provides a procedure
for EPA to make such a determination without revising the regulations.
Under Sec. 97.42(g)(1), the Administrator may determine that a unit
allocated allowances is not actually a NOX Budget unit and
that the Administrator will not record the allocation. Using this
procedure, EPA has already issued final determinations that several
other units are not NOX Budget units. Since this procedure
is available for the unit referenced by the commenter and since issues
concerning this unit are in any event outside the scope of the December
2000 proposed rule, EPA is not determining in this rulemaking the
status of this unit under the NOX Budget Trading Program.
Instead, EPA recently issued a determination under Sec. 97.42(g)(1)
concluding that the unit is not a NOX Budget unit.
With regard to the status of the second unit referenced by this
commenter, issues concerning this unit are outside the scope of the
December 2000 proposed rule. EPA therefore is not addressing these
issues, or taking any action, concerning the unit in this
rulemaking.\3\
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\3\ Similarly, issues raised by another commenter, concerning
the lack of allowance allocations for another unit (referred to as
DTE River Rouge No. 1 LLC), are outside the scope of the December
2000 proposed rule, and EPA is not addressing, or taking any action
concerning, this unit in this rulemaking.
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B. Final Approach for Obtaining Allowances for Units' Revised
Allocations
EPA's general approach to obtaining allowances for revised
allocations for the identified units is to adopt methodologies that
will result in the least disruption to the Federal NOX
Budget Trading Program, while maintaining unchanged the emission
reductions required under the program and the existing State EGU and
non-EGU budgets that reflect those reductions.
1. Final approach for West Virginia non-EGUs.
Since the issues concerning the West Virginia non-EGUs (including
one ``stranded'' unit) involve the entire West Virginia non-EGU budget
sector, EPA proposed in the December 2000 proposal to obtain allowances
for the non-EGUs' revised allocations by redistributing the allocations
for that sector. The redistribution will not affect any units other
than those needing revised allocations. Further, the redistribution is
the least disruptive approach for revising the units' allocations. In
fact, since the owners of all the West Virginia non-EGUs have agreed on
the amounts of the revised allocations for the units, the owners could
have accomplished this redistribution on their own at any time, simply
by using the unrestricted trading allowed under the Federal
NOX Budget Trading Program to transfer allowances among the
units.
No commenters objected to this approach for revising the
allocations for the West Virginia non-EGUs. For the above reasons, EPA
adopts this approach.
2. Approach for Other Units
For the other units identified above, EPA proposed in the December
2000 proposal to use first the allowances that were allocated in the
January 2000 final rule to units that EPA subsequently determined not
to be NOX Budget units. To the extent an insufficient amount
of allowances were available from such non-NOX Budget units,
EPA proposed to use allowances from the compliance supplement pool. In
the December 2000 proposal, EPA stated that there were sufficient
allowances available for non-NOX Budget units to provide
allowances for all of the identified units except the Birchwood unit.
Thus, under the proposal, non-NOX Budget units would provide
all additional allowances for all the identified units except the
Birchwood unit, which would receive
[[Page 48570]]
some but not all of its additional allowances from non-NOX
Budget units.
The most accurate approach for providing revised allocations for
the ``stranded'', Birchwood, Blue Ridge, and Michigan State units would
be to recreate the allocations that would have resulted if EPA had
originally used the correct data for them when the allocations were
established in the January 2000 final rule. This approach would require
reallocating allowances for each, entire budget sector (i.e., the EGU
or non-EGU sector for a given State) that includes one or more of these
five units.
This is because, if the two ``stranded'' units \4\ and the
Birchwood, Blue Ridge, and Michigan State units had been provided the
proper number of allowances in the January 2000 final rule, the
allocations for all units in their respective budget sectors in their
respective States would have been affected. Under Sec. 97.42(b) and
(c), each existing unit is allocated its proportionate share of the
budget for its respective sector (EGU or non-EGU) for its respective
State. For example, allocations for an EGU in a given State are
determined by: multiplying an emission rate (0.15 lb/mmBtu) times each
unit's historical heat input; totaling the results for all EGUs in the
State; and adjusting each EGU's allocation proportionately until the
total number of allowances allocated to the EGUs in the State equals 95
percent of the State's EGU budget. Non-EGU allocations are determined
in the same way except that the emission rate (0.17 lb/mmBtu) is
different and the allocations must equal 95 percent of the non-EGU
budget.
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\4\ The third ``stranded'' unit is a West Virginia non-EGU,
whose revised allocation is addressed above in preamble section
II.B.1.
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Consequently, if EPA were to take the approach of recreating the
original allocations based on the correct data, the allocations of all
units in each entire budget sector would be revised. Further, because
there would then be more units receiving allocations than in the
original allocation process, each unit (other than the two ``stranded''
units and the Birchwood, Blue Ridge, and Michigan State units) would
have a reduced allocation.
As explained in the December 2000 proposal, EPA believes that this
approach would result in disruption of the Federal NOX
Budget Trading Program, and for the units in the program, far out of
proportion to the scope of the problem. No commenters supported this
approach to providing revised allocations for the ``stranded'',
Birchwood, Blue Ridge, and Michigan State units. For the above reasons,
EPA concludes that it should adopt an approach that is less disruptive
to the Federal NOX Budget Trading Program and the units in
the program than a full reallocation of allowances to all units in
each, entire budget sector.
i. Use of allocations to non-NOX Budget units.
EPA stated in the December 2000 proposed rule that using allowances
that were allocated mistakenly under the January 2000 final rule to
units that were not actually NOX Budget units is the least
disruptive method of providing allowances for the revised allocations.
Appendices A and B of the January 2000 final rule list the allocations
for specific units thought to be NOX Budget units. Under
Sec. 97.42(g)(1)(i), if EPA subsequently determines that any unit in
Appendix A or B is not actually a NOX Budget unit, the
Administrator will not record the listed allocations in an account for
the unit. Instead, the Administrator will record the allocations in the
allocation set-aside for new units in the State in which the unit is
located, in addition to the 5 percent of the EGU and non-EGU budgets
already comprising the set-aside. 40 CFR 97.42(g)(2).\5\ EPA concluded
in the December 2000 proposed rule, that revising NOX Budget
units' allocations using allowances mistakenly allocated to non-
NOX Budget units is the approach that is the least
disruptive of reasonable expectations of owners and operators and,
thus, of compliance planning for NOX Budget units. See 65 FR
80402.
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\5\ One commenter expressed concern that, since the rule states
that the allocation set-aside is established as equaling 5% of the
State EGU and non-EGU budgets, the allowances originally allocated
to non-NOX Budget units could not be added to the
allocation set-aside. However, Sec. 97.42(d)(1) states what the
initial amount of the allocation set-aside will be and does not
preclude or contradict Sec. 97.42(g)(2), which states specifically
that other allowances may be subsequently added to the set-aside.
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Two commenters claimed that revising allocations using allowances
made available through determinations under Sec. 97.42(g)(1) would
disrupt compliance planning. These commenters note that, under the
existing regulations, allowances originally allocated to units
determined not to be NOX Budget units are added to the
allocation set-aside for new units. One of the commenters claims that
``it is reasonable that companies planning'' new units ``would have
factored into their compliance plans assumptions concerning the
availability * * * of allowances freed up'' under Sec. 97.42(g)
determinations, including those determinations ``made several months
ago.''
However, in establishing this mechanism for correcting allocations
to non-NOX Budget units, EPA stated that it expected that
such allocations would occur ``rarely, if ever.'' 65 FR 2707. EPA's
intent, of course, was not to make errors resulting in allocations to
non-NOX Budget units, and there was no reason for owners and
operators to assume that there would be errors or rely on such an
assumption. On the contrary, since EPA stated that the mechanism for
correcting such errors would rarely be needed, owners and operators of
new units had no reasonable expectation that the mechanism would ever
be used and that any incorrectly allocated allowances would be added to
the allocation set-aside.
Moreover, the commenter speculated, without providing any support,
that owners and operators changed their compliance planning for new
units during the few months between June-August 2000, when the bulk of
the Sec. 97.42(g) determinations were issued, and December 2000 when
EPA issued the proposal to revise allocations for the identified units
using allowances from these Sec. 97.42(g) determinations. For example,
the commenter provides no evidence that any owner or operator incurred
expenses, or made decisions, concerning compliance of its units on the
assumption that allowances would be available for the units under
Sec. 97.42(g). The commenter's unsupported speculation warrants little
or no weight. Further, the relatively short period during which the
owners and operators could have thought that such allowances would be
available was unlikely to result in any significant changes in
compliance planning. On balance, EPA concludes that owners and
operators did not reasonably rely, to any significant extent, on the
availability of allowances under Sec. 97.42(g) for new units.
The commenters objecting to using non-NOX Budget units'
allowances to provide allowances to the two ``stranded'' units and the
Birchwood, Blue Ridge, and Michigan State units also argued that EPA
should increase the State trading budgets by the amounts of the
additional allowances to be provided to the identified units. However,
the commenters ignore the fact that if, in setting the State EGU and
non-EGU budgets, EPA had originally used the correct data concerning
the non-NOX Budget units mistakenly allocated allowances,
the State EGU or non-EGU budgets in which the non-NOX Budget
units were included in the
[[Page 48571]]
January 2000 final rule would have been lower and therefore the total
number of allowances allocated under those budgets would have been
less.
This is because all of the non-NOX Budget units
mistakenly allocated allowances had heat input values that were used to
calculate the respective State EGU or non-EGU budgets. For example, the
State EGU budget for Michigan was based on the total heat input for all
large EGUs in 1995, and each of the non-NOX Budget units
originally treated as large EGUs in Michigan \6\ had heat input values
in 1995 that were included in the State EGU budget. Also, the State EGU
budgets for North Carolina and Virginia \7\ were based on the total
heat input for large EGUs in 1996, and each of the non-NOX
Budget units originally treated as large EGUs in those States \8\ had
heat input values in 1995 that were included in the respective State
EGU budget. Similarly, the State non-EGU budgets were based on total
heat input for large non-EGUs in the respective States in 1995, and all
the non-NOX Budget units originally treated as large non-
EGUs in those States had heat input values in 1995 that were included
in the respective State non-EGU budget.\9\ Although the treatment of
the non-NOX Budget units inflated somewhat the State EGU or
non-EGU budgets, EPA did not reduce these budgets when it issued
determinations removing the non-NOX budget units from the
trading program. Instead, EPA took back the allowances allocated to
these non-NOX budget units and provided in part 97 that
these allowances would be added to the set-aside for new units in the
respective States.
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\6\ These units are 491 E 48th Street Units -7 and -8, J B Sims
Unit 65, and James De Young Unit 5.
\7\ These units are Craven County Wood Energy Unit ST_RGY in
North Carolina and Stone Container Unit ST_ner in Virginia.
\8\ These units are 491 E 48th Street Units -7 and -8, J B Sims
Unit 65, and James De Young Unit 5.
\9\ These units are: Points 0201 through 0204 and 0205, plant
A7809, National Steel Corp, Wayne County, Michigan; Points 0218 and
0219, plant A8640, Rouge Steel Corp., Wayne County, Michigan; Point
0084, plant A4033, Dow Chemical, Midland County, Michigan; Point
030, plant 0078, FMC Corp--Lithium Div. Hwy 161, Gaston County,
North Carolina; Point 007, plant 0069, Weyerhaeuser Co. Plymouth,
Martin County, North Carolina; and Point 004, plant 0006,
International Paper--Franklin (formerly Union Camp Corp/Fine Paper
Div), Isle of Wright County, Virginia.
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In short, EPA's approach concerning the non-NOX Budget
units already somewhat inflated the State EGU or non-EGU budgets. The
commenters' approach would compound this result by further increasing
State EGU or non-EGU budgets to provide additional allowances to the
identified NOX Budget units. In addition, under the
commenter's approach of further increasing the EGU or non-EGU budgets
of the States involved (i.e., Michigan, North Carolina, and Virginia),
those States' budgets would be calculated in a different manner (i.e.,
with amounts of allowances added to the amounts derived using the
generally applied methodology for calculating budgets) than any other
States' budgets. EPA maintains that it is reasonable to use the
allowances that were mistakenly allocated to non-NOX Budget
units, and that somewhat inflated certain State EGU or non-EGU budgets,
to provide additional allowances to the identified NOX
Budget units, rather than further increasing those State EGU or non-EGU
budgets.
According to one of the commenters supporting the approach of
increasing the State trading budgets to provide revised allocations,
the State trading budget (for Virginia) would have been higher if EPA
had originally used the correct historical heat input data for one of
the identified units (the Birchwood unit). However, this comment is
based on an incorrect factual premise.
Actually, Virginia's trading budget was based on the higher of
total EGU heat input in 1995 or 1996, the 1996 total was the higher
value, and the Birchwood unit did not commence operation until after
the 1996 control period. The incorrect heat input data submitted to,
and used by, EPA to set Virginia's EGU budget showed heat input for the
Birchwood unit for the 1996 control period. That incorrect value was
used to calculate the Virginia budget. Thus, if EPA originally had been
provided and had used the correct heat input data for the Birchwood
unit, Virginia's EGU budget would be lower than the amount in the
January 2000 final rule. The commenter's approach would result in
further increase of that budget and would result in Virginia's budget
being calculated in a manner inconsistent with other States' budgets.
In summary, EPA concludes that using non-NOX Budget
units' allowances has little or no disruptive impact on units in the
NOX Budget Trading Program. EPA also maintains that this is
a reasonable approach for providing revised allocations for the
identified units.
As discussed above, after issuance of the December 2000 proposed
rule and during the comment period on that proposal, a commenter
informed EPA of a unit, not previously identified, that was allocated
allowances in the January 2000 final rule but that is not actually a
NOX Budget unit. The issues concerning the status of this
unit (i.e., Point 004, plant 0006, International Paper--Franklin
(formerly Union Camp Corp/Fine Paper Div), Isle of Wright County,
Virginia) as a NOX Budget unit were outside the scope of
December 2000 proposed rule and this rulemaking, and there is a
separate procedure under Sec. 97.42(g)(1) for addressing such issues.
EPA therefore issued a letter under Sec. 97.42(g)(1) on August 1, 2001,
in which EPA determined that the unit was not actually a NOX
Budget unit. Further, EPA stated in the letter that, consistent with
Sec. 97.42(g)(1)(i), the 262 allowances allocated to the unit would not
be recorded for the unit.
Consequently, there are 262 additional allowances that were
mistakenly allocated to a non-NOX Budget unit in Virginia
and that are available under the approach proposed in the December 2000
proposal for providing additional allowances to the Birchwood unit. As
a result, there are sufficient allowances available from non-
NOX Budget units in Virginia to provide the full amount of
additional allowances necessary for the Birchwood unit.\10\
---------------------------------------------------------------------------
\10\ Although, at the time of the December 2000 proposal EPA was
not aware that Point 004, plant 0006, International Paper--Franklin
(formerly Union Camp Corp/Fine Paper Div), Isle of Wright County,
Virginia was a non-NOX Budget unit and that allowances
allocated to the unit might be available to use for the Birchwood
unit, such use of these allowances is squarely within the scope of
the December 2000 proposal. In that proposal, EPA proposed generally
to provide additional allowances to units warranting additional
allocations using allowances allocated to units that were non-
NOX Budget units. 65 FR 80401; see also 65 FR 80404
(proposing to modify Sec. 97.42(g) to establish a general procedure
for using non-NOX Budget units' allowances to provide
additional allowances to individual NOX Budget units
warranting increased allocations).
---------------------------------------------------------------------------
ii. Use of compliance supplement pool or allocation set-aside
allowances.
In the December 2000 proposed rule, EPA stated that using
allowances from the State compliance supplement pool was the next least
disruptive method of providing allowances for the revised allocations,
after the use of non-NOX Budget units' allowances.EPA
explained that use of the compliance supplement pool allowances would
be less disruptive than using allowances from the allocation set-aside,
which is used for allocations to new units. See 65 FR 80403.
However, as discussed above, EPA has determined that there are
sufficient allowances available from non-NOX Budget units to
provide allowances for all of the identified units, including the
Birchwood unit. There is no need to use the compliance supplement pool
for any
[[Page 48572]]
State in which the identified units are located to provide any
allowances needed for the units' revised allocations. For the reasons
discussed below, EPA concludes that non-NOX Budget units
should provide all additional allowances for all the identified units.
First, EPA maintains that use of non-NOX Budget units'
allowances is less disruptive to the NOX Budget Trading
Program and units in the program than using allowances from the
compliance supplement pool. The purpose of the pool is to provide
additional allowances for 2003 and 2004 above and beyond the State EGU
and non-EGU budgets for units ``that are unable to meet the compliance
deadline'' during those years. 63 FR 57356, 57428 (October 27, 1998)
(explaining purpose of pool in NOX SIP call); see also 64 FR
28250, 28310 (May 25, 1999) (adopting pool in Federal NOX
Budget Trading Program for same reasons as in NOX SIP call).
The compliance deadline is feasible without the compliance supplement
pool. However, the additional allowances in this pool will ensure that
any units unable to install NOX control equipment (e.g.,
because of concerns for reliability of electric generation during a
shutdown for installation) in 2003 or 2004 are able to obtain
allowances in the meantime. See 63 FR 57428.
The compliance supplement pool allowances are initially distributed
to units that make early NOX emission reductions. Owners and
operators of units that reduce the units' NOX emissions
below a specified level after 2000 and before 2003, the year when the
control requirements of the Federal NOX Budget Trading
Program first take effect, may apply for compliance supplement pool
allowances. 40 CFR 97.43(a). Owners and operators of units in the Ozone
Transport Commission NOX Budget Program may also apply for
compliance supplement pool allowances to the extent the units have
banked allowances for 2000 or 2001 under that program. 40 CFR 97.43(b).
Although the compliance supplement pool is distributed to units with
early reductions or with banked allowances under the Ozone Transport
Commission NOX Budget Trading Program, units ``that need
extra allowances for compliance will have access to them through the
allowance market.'' 65 FR 2714. EPA provided credit for early
reductions ``merely as a mechanism for managing the [compliance
supplement pool], not as an independent program with a purpose separate
from that of the [compliance supplement pool]''. State of Michigan v.
EPA, 213 F.3d 663, 694 (D.C. Cir. 2000).
However, EPA recognizes that using some of the compliance
supplement pool allowances for revised allocations would reduce the
amount of allowances potentially available for early reductions. Each
State has a fixed number of allowances in the State compliance
supplement pool. See 65 FR 2767 (Appendix D showing compliance
supplement pool for each State). Using the pool would make fewer
allowances potentially available for early reductions and so would be
more disruptive to the Federal NOX Budget Trading Program
and other units than using non-NOX Budget unit allowances.
Second, using allowances from the allocation set-aside, would also
be more disruptive than using non-NOX Budget unit
allowances. The allocation set-aside is allocated to new units for
years before they have the necessary historical data to be treated as
existing units in future allocation updating. The allocation set-aside
therefore plays an important role of integrating new units into the
NOX Budget Trading Program. EPA set the allocation set-aside
at 5% of the State EGU and non-EGU budgets so that the pool would be
large enough to accommodate all new sources. EPA is concerned that
using allowances from the allocation set-aside to revise the identified
units' allocations may result in fewer allowances being available for
individual new units. See 65 FR 80403. EPA notes that no commenter
indicated a preference for using allowances from the allocation set-
aside (or from the compliance supplement pool), in lieu of non-
NOX Budget units' allowances.
In summary, EPA concludes that the compliance supplement pool or
allocation set-aside allowances should not be used to obtaining
allowances for any of the identified units.
C. Amounts of Allowances for Units' Revised Allocations
In the December 2000 proposed rule, EPA proposed the amounts of
allowances to use for the units' revised allocations. For the West
Virginia non-EGUs (including one ``stranded'' unit), EPA proposed to
use the allocations requested by all the owners of those units. 65 FR
80403. EPA did not receive any comments objecting to these revised
allocations. For the reasons set forth in the proposed-rule preamble,
today's final rule adopts these revised allocations.
EPA also proposed in the December 2000 proposal to calculate the
revised allocations for two ``stranded'' units and the Birchwood, Blue
Ridge, and Michigan State units by using the average emission rate
underlying the allocations for the respective unit's State budget
sector (EGUs or non-EGUs) in Appendix A or B in the January 2000 final
rule. Specifically, as discussed above, the allocations to each EGU in
Appendix A or non-EGU in Appendix B are calculated by multiplying the
unit's historical heat input by an initial average emission rate (0.15
lb/mmBtu for EGUs and 0.17 lb/mmBtu for non-EGUs) and then adjusting
the results so that the total of the allocations to all EGUs or all
non-EGUs in the unit's State equals 95 percent of the State EGU budget
or State non-EGU budget respectively. Thus, all EGU allocations for the
State have a common underlying average emission rate, and all non-EGU
allocations for the State have a common underlying average emission
rate, which may differ from that for EGU allocations.
In calculating allocations for the ``stranded'', Birchwood, Blue
Ridge, and Michigan State units, EPA proposed to use the underlying
average emission rate for units in the State budget sector in the same
State as the respective unit. EPA proposed to multiply each unit's
historical heat input (calculated under Sec. 97.42(a))by the
appropriate underlying average emission rate. See 40 CFR 97.42(a)
(establishing 1995-1998 as the historical period for 2003-2007
allocations); and Memorandum on Calculation of Revised Allocations,
Document No. XIV-B-01(showing how the revised allocations are
calculated and attaching the supporting documentation of the heat input
data).
EPA did not receive any comments objecting to the proposed
methodology for calculating the revised allocations. One commenter
stated that the revised allocation listed in the proposed rule language
for one unit (Unit 005, plant 0159, Blue Ridge Paper Products Inc.,
Haywood County, North Carolina) was incorrect. In considering the
comment, EPA found that the amount of the allocation as reflected in
the Memorandum on Calculation of Revised Allocations in the record was
different than the number listed in the proposed rule language for the
unit. EPA agrees that the amount in the memorandum is correct and that
the number in the proposed rule is wrong. In today's final rule, EPA is
correcting the allocation for the Blue Ridge unit to be consistent with
the memorandum in the record and is otherwise adopting the revised
allocations in the proposed rule, based on the reasons set forth above
and on the supporting record.
D. Changes to regulatory Text.
In today's final rule, EPA is adopting the following revisions to
the language of specific sections of part 97.
[[Page 48573]]
1. Appendices A and B Revisions.
EPA is adopting several rule revisions to implement the above-
described revised allocations and approach for obtaining allowances for
those allocations. First, today's final rule revises Appendices A and B
to part 97 in order to include revised allocation amounts for the
identified units as discussed above. In addition, when Appendix A or B
incorrectly references an identified unit or fails to list the unit at
all, EPA is correcting these errors.
Second, today's final rule revises Appendices A and B to remove
allocations for units that EPA has previously determined not to be
NOX Budget units. Included in these revisions is the removal
of the unit, noted above, that EPA recently determined was a non-
NOX Budget unit for which allowances should not be
recorded.\11\ As discussed above, under Sec. 97.42(g), the
Administrator may determine that a unit allocated allowances in
Appendix A or B does not meet the applicability requirements in
Sec. 97.4 and so is not actually a NOX Budget unit. In
response to requests for such determinations, EPA has issued final
determinations that 4 units listed in Appendix A and 28 units listed in
Appendix B are not NOX Budget units and will not have
allocations recorded in their accounts. No commenters on the December
2000 proposed rule objected to reflecting final determinations under
Sec. 97.42(g) in revisions to the appendices. Appendix A. Today's final
rule merely reflects, in regulatory text, these final determinations.
---------------------------------------------------------------------------
\11\ Removal of this unit was not specifically referenced in the
December 2000 proposed rule because the determination that the unit
was a non- NOX Budget unit was not issued until August 1,
2001. However, EPA maintains that there is good cause under section
553(b)(3)(B) of the Administrative Procedure Act for finalizing this
revision without notice and comment. The August 1, 2001
determination is final, and the revision merely ensures that
Appendix B reflects this final determination. Even without such
revision, the final determination would be effective and the
allowances originally allocated to the unit would be available for
allocation in today's final rule to the Birchwood unit. Notice and
comment are therefore unnecessary.
---------------------------------------------------------------------------
2. Section 97.42(g) revisions
In the December 2000 proposal, EPA proposed revisions to Sec. 97.42
(allocation procedures) that would authorize the Administrator to issue
orders correcting other units' allocations, where correction was
warranted, using allowances allocated to units determined not to be
NOX Budget units. Under the proposed revisions, the
Administrator could determine that the number of allowances actually
allocated to an existing NOX Budget unit for 2003-2007 in
Appendix A or B is less than the number of allowances provided under
Sec. 97.42(a) through (d) and that equitable considerations warranted
correction of such unit's allocation. The Administrator could also
determine that the number of allowances actually allocated to a new
NOX Budget unit for 2003-2007 or to any NOX
Budget unit for 2008 or thereafter, using procedures in Sec. 97.42(a)
through (d), was less than the number of allowances provided under
Sec. 97.42(a) through (d) and that equitable considerations warranted
correction of such unit's allocation. Moreover, in the order, the
Administrator could determine that allowances mistakenly allocated to
non- NOX Budget units located in the same State as the unit
would be used to supplement, and thereby correct, the unit's actual
allocation. EPA stated that the use of orders--rather than rule
revisions--to make unit-specific allocations from allocations to non-
NOX Budget units would allow for much more expeditious
correction of a unit's allocations where correction was warranted and
still provide opportunity for interested parties to submit objections.
Several commenters objected to the proposed revision of
Sec. 97.42(g) on the ground that, among other things, State budgets
should be increased to provide additional allowances for units whose
original allocations were incorrect and warranted an increase. The
commenters also claimed that the proposed revision provided fewer
procedural protections for participants and other members of the public
than provided through a rulemaking proceeding. As discussed above, EPA
concludes above that there is no basis for increasing the State budgets
to provide additional allowances for the units specifically identified
in this final rule as warranting increased allocations. Further,
additional procedural protections (if any were necessary) could be
provided in a final rule. However, EPA has decided that the most
prudent course is to retain--at this time--the flexibility to address
case-by-case the issue of how to obtain additional allowances for any
other units that EPA may determine in the future warrant increased
allocations, rather than deciding that question on a generic basis now
by adopting the proposed revisions. EPA is therefore not taking action
in today's final rule on the proposed revisions to Sec. 97.42(g).\12\
---------------------------------------------------------------------------
\12\ One commenter that supports the proposed revisions to
Sec. 97.42(g) and Sec. 97.43 suggests that the date for compliance
under the January 2000 final rule with the requirement to hold
allowances should be extended to May 1, 2004. EPA is not addressing
this issue in this final rule since the issue is beyond the scope of
the December 2000 proposed rule and the rulemaking.
---------------------------------------------------------------------------
3. Section 97.43 Revisions
In the December 2000 proposal, EPA proposed alternative revisions
that would provide allowances from the State compliance supplement pool
for the Birchwood unit. EPA proposed to revise Sec. 97.43 to add a new
paragraph (c)(9) that would specifically allocate to the Birchwood unit
in Virginia 725 allowances from the Virginia compliance supplement
pool. The new provisions also would address the interaction of this
unit-specific allocation with other provisions of the rule concerning
compliance supplement pool allowances. As discussed above, there are
now sufficient non- NOX Budget unit allowances to satisfy
the revised allocation for the Birchwood unit. The proposed new
paragraph (c)(9) is therefore unnecessary, and EPA has decided not to
adopt that revision.
In the December 2000 proposal, EPA also proposed to revise
Sec. 97.43 to add a new paragraph (d) that would authorize the
Administrator, on a generic basis, to issue orders determining that the
number of allowances allocated in Appendix A or B (or using
Sec. 97.42(a) through (d) procedures) for a unit was less than the
number of allowances provided under Sec. 97.42(a) through (d) and that
equitable considerations warrant correction of such allocation. The
Administrator could also determine in the order that allowances in the
compliance supplement pool of the State where the unit is located would
be used to supplement, and thereby correct, the unit's allocation.
Several commenters objected to the proposed new paragraph (d) of
Sec. 97.43 on the ground that, among other things, State budgets should
be increased to provide additional allowances for units whose original
allocations were incorrect and warranted an increase. The commenters
also claimed that the proposed revision provided fewer procedural
protections for participants and other members of the public than
provided through a rulemaking proceeding. As discussed above, EPA
concludes above that there is no basis for increasing the State budgets
to provide additional allowances for the units specifically identified
in this final rule as warranting increased allocations. Further,
additional procedural protections (if any were necessary) could be
provided in a final rule. However, EPA has decided that the most
prudent course is to retain--at this
[[Page 48574]]
time--the flexibility to address on a case-by-case basis the issue of
how to obtain additional allowances for any units that EPA may
determine in the future warrant increased allocations, rather than
deciding that question on a generic basis now by adopting the proposed
revisions. EPA is therefore not taking action in today's final rule on
the proposed revisions to Sec. 97.43.
III. Administrative Requirements
A. Executive Order 12866: Regulatory Impacts 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.
It has been determined that today's final rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and, therefore, is not subject to OMB review.
B. Regulatory Flexibility Act: Small Entity Impacts
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA), Pub. L. No. 104-121, generally requires the 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. Such entities include small businesses, small organizations,
and small governmental jurisdictions.
In determining whether a rule has a significant, economic impact on
a substantial number of small entities, the impact of concern is any
significant, adverse, economic impact on small entities since the
primary purpose of the regulatory flexibility analysis is to identify
and address regulatory alternatives ``which minimize any significant,
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604.
Today's final rule revision is not significant enough to change the
regulatory burden or economic impact of the existing Federal
NOX Budget Trading Program rule. Moreover, for virtually all
NOX Budget units addressed, the final rule either increases
the number of allowances allocated and thus reduces the burden of the
program or does not change the number of allowances allocated and thus
does not change the program burden. To the extent the final rule
removes certain units from the allocation tables, EPA has already
issued final orders removing the allocations for these units, and the
final rule has no effect other than to update the allocation tables to
make them consistent with those orders. Only one unit's allocation is
reduced by today's final rule, and the owners of that unit, agreeing
that the unit's original allocation was erroneously overstated,
requested EPA to make the reduction.
For these reasons, I certify that today's final rule will not have
a significant, economic impact on a substantial number of small
entities.
C. Unfunded Mandates Reform Act
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, 2
U.S.C. 1532, the Agency generally must prepare a written statement,
including a cost-benefit analysis, for any proposed or final rule with
``Federal mandates'' that may result in the expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year. Section 205 of the
UMRA generally requires that, before promulgating a rule for which a
written statement is needed, EPA must identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why the
alternative was not adopted. 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 regulatory requirements.
EPA has determined that today's final rule does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector in any one year. For the reasons discussed above,
today's final rule revision is not significant enough to change the
overall regulatory burden or economic impact of the Federal
NOX Budget Trading Program rule on any parties, including
State, local or tribal governments. Accordingly, little or no
additional costs to State, local, or tribal governments in aggregate,
or to the private sector, will result from the final rule. Similarly,
EPA has determined that today's final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Thus, today's final rule is not subject to the
requirements of sections 202, 203, or 205 of the UMRA.
D. Paperwork Reduction Act
Today's final revisions to part 97 will not impose any new
information collection burden subject to the Paperwork Reduction Act
(44 U.S.C. 3501, et seq.). Today's final rule does not change either
the scope of the units covered by, or the information requirements for
units under, the Federal NOX Budget Trading Program.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and
[[Page 48575]]
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
Copies of the previously submitted Information Collection Request
concerning the Federal NOX Budget Trading Program may be
obtained from the Director, Regulatory Information Division; EPA; 401 M
St. SW (mail code 2137); Washington, DC 20460 or by calling (202) 564-
2740.
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The Executive Order 13045 (62 FR 19885 (April 23, 1997)) applies to
any rule that the Agency determines (1) is ``economically significant''
as defined under Executive Order 12866 and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, EPA 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 EPA.
Today's final rule is not subject to Executive Order 13045 because
it is not ``economically significant'' as defined under Executive Order
12866. Further, EPA does not have reason to believe that the
environmental health risks or safety risks addressed by this action
present a disproportionate risk to children.
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.
Today's final rule does not have a disproportionately high and
adverse human health or environmental effects on minorities and low-
income populations.
G. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (August
10, 1999), requires the Agency to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' ``Policies that have federalism implications'' are
defined in the Executive Order to include regulations that 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.''
Today's final rule 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. Thus, Executive Order 13132 does
not apply to this rule.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This final rule does not anticipate substantial compliance cost
expenditures by tribal governments nor substantial direct effects on
cultural practices of tribes. Thus, Executive Order 13175 does 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 (NTTAA), Public Law 104-113, section 12(d), 15 U.S.C. 272
note, directs the Agency 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 final rule does not involve any technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 13211: Energy Effects
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et.seq. (CRA), as added
by the Small Business Regulatory Enforcement Fairness Act of 1966, does
not apply because this action is not a rule, for purposes of 5 U.S.C.
8014(3). This action qualifies as a rule of particular applicability
because its application is limited to specifically named entities, and
as such, it is exempt from the CRA.
List of Subjects in 40 CFR Part 97
Environmental protection, Administrative practice and procedure,
Air pollution control, Emissions trading, Intergovernmental relations,
Nitrogen oxides, Ozone, Ozone transport, Reporting and recordkeeping
requirements.
Dated: September 14, 2001.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 97--[AMENDED]
1. The authority citation for part 97 continues to read as follows:
Authority: 42 U.S.C. 7401, 7403, 7426, and 7601.
APPENDIX A--[AMENDED]
2. Appendix A to part 97 is amended by:
a. Removing all entries for ``MI, 491 E. 48 TH STREET'', ``MI, JB
SIMS'', ``NC, CRAVEN COUNTY WOOD ENERGY'', and ``VA, STONE CONTAINER'';
and
[[Page 48576]]
b. Removing two entries for ``VA, SEI BIRCHWOOD'' and adding in
their place one entry for ``VA, SEI BIRCHWOOD''.
The addition read as follows:
Appendix A to Part 97--Final Section 126 Rule: EGU Allocations, 2003-2007
----------------------------------------------------------------------------------------------------------------
NOX
State Plant Plant____id Point____id allocation
for EGUs
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
VA...................................... SEI BIRCHWOOD.................. 12 1 305
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
APPENDIX B--[AMENDED]
3. Appendix B to part 97 is amended by:
a. Removing all entries for ``IN, Allen, MICHELIN NORTH AMERICA,
INC'', ``IN, Elkhart, SUPERIOR LAMINATING, INC'', ``IN, Kosciusko, THE
DALTON FOUNDRIES INC'', ``KY, Carroll, DOW CORNING CORP'', ``KY,
Shelby, ICHIKOH MANUFACTURING'', ``KY, Scott, TOYOTA MOTOR MFG USA
INC'', and ``KY, Hardin, USAARMC & FORT KNOX''; removing the first
entry for ``MI, Midland, DOW CHEMICAL USA''; removing all entries for
``MI, Wayne, NATIONAL STEEL CORP'', ``MI, Wayne, ROUGE STEEL CO'',
``NC, Gaston, FMC CORP--LITHIUM DIV. HWY 161'', ``NJ, Middlesex, FORD
MOTOR COMPANY'', ``NJ, Bergen, GARDEN STATE PAPER CO'', ``NJ, Passiac,
HOFFMAN LAROUCHE INC. C/O ENVIR''; ``WV, Grant, NORTH BRANCH POWER
STATION'', and ``WV, Brooke, WHEELING--PITTSBURGH STEEL''; removing the
second entry for ``VA, Isle of Wright, INTERNATIONAL PAPER--FRANKLIN
(FORMERLY UNION CAMP CORP/FINE PAPER DIV)'';
b. Revising the fourth entry for ``MI, Ingham, MICHIGAN STATE
UNIVERSITY'';
c. Revising the second entry for ``NC, Martin, WEYERHAEUSER PAPER
CO. PLYMOUTH'';
d. Revising the entries for ``WV, Kanawha, DUPONT--BELLE''; and
``WV, Fayette, ELKEM METALS COMPANY L.P.--ALLOY PLANT''; revising two
entries for ``WV, Marshall, PPG INDUSTRIES, INC''; revising the three
entries for ``WV, Kanawha, AVENTIS CROPSCIENCE''; and revising the
seven entries for ``WV, Hancock, WEIRTON STEEL CORPORATION''; and
e. Adding in alphabetical order by State by plant and numerical
order by point entries for ``NC, Haywood, BLUE RIDGE PAPER PRODUCTS'',
``NC, Craven, WEYERHAEUSER COMPANY NEW BERN MILL'', and ``WV, Kanawha,
UNION CARBIDE--SOUTH CHARLESTON PLANT''.
The revisions and additions read as follows:
Appendix B to Part 97--Final Section 126 Rule: Non-EGU Allocations, Allocations, 2003-2007
----------------------------------------------------------------------------------------------------------------
NOX allocation
State County Plant Plant ID Point ID for non-EGUs
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
MI................. Ingham............ MICHIGAN STATE K3249 0056 73
UNIVERSITY.
* * * * * *
*
NC................. Haywood........... BLUE RIDGE PAPER 0159 005 129
PRODUCTS INC.
* * * * * *
*
NC................. Martin............ WEYERHAEUSER COMPANY 0069 009 25
PLYMOUTH.
NC................. Craven............ WEYERHAEUSER COMPANY 0104 006 72
NEW BERN MILL.
* * * * * *
*
WV................. Kanawha........... DUPONT--BELLE.......... 00001 612 54
WV................. Fayette........... ELKEM METALS COMPANY 00001 006 116
L.P.--ALLOY P PLANT.
WV................. Marshall.......... PPG INDUSTRIES, INC.... 00002 001 195
WV................. Marshall.......... PPG INDUSTRIES, INC.... 00002 003 419
WV................. Kanawha........... AVENTIS CROPSCIENCE.... 00007 010 113
WV................. Kanawha........... AVENTIS CROPSCIENCE.... 00007 011 102
WV................. Kanawha........... AVENTIS CROPSCIENCE.... 00007 012 105
WV................. Kanawha........... UNION CARBIDE--SOUTH 0003 0B6 92
CHARLESTON PLANT.
WV................. Kanawha........... UNION CARBIDE--SOUTH 0003 0B7 45
CHARLESTON PLANT.
WV................. Hancock........... WEIRTON STEEL 00001 030 31
CORPORATION.
WV................. Hancock........... WEIRTON STEEL 00001 088 30
CORPORATION.
WV................. Hancock........... WEIRTON STEEL 00001 089 2
CORPORATION.
WV................. Hancock........... WEIRTON STEEL 00001 090 110
CORPORATION.
WV................. Hancock........... WEIRTON STEEL 00001 091 253
CORPORATION.
WV................. Hancock........... WEIRTON STEEL 00001 092 208
CORPORATION.
WV................. Hancock........... WEIRTON STEEL 00001 093 200
CORPORATION.
----------------------------------------------------------------------------------------------------------------
[[Page 48577]]
[FR Doc. 01-23476 Filed 9-20-01; 8:45 am]
BILLING CODE 6560-50-P