[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Proposed Rules]
[Pages 80420-80425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32139]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 50 and 51
[EPA-HQ-OAR-2010-0891, FRL-9241-9]
RIN 2060-AQ65
Reasonable Further Progress Requirements for the 1997 8-Hour
Ozone National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rulemaking.
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SUMMARY: The EPA is proposing to revise the Agency's earlier
interpretation of its rule regarding requirements for Reasonable
Further Progress (RFP) that allowed certain emissions reductions from
outside the nonattainment area to be credited toward meeting the RFP
requirements for the 1997 8-hour ozone national ambient air quality
standards (NAAQS). Specifically, EPA is proposing that States may not
take credit for emission reductions from outside the nonattainment area
to meet the area's RFP obligations. EPA is also taking comment on
whether it would be appropriate for States to rely on emission
reductions credit from outside the nonattainment area for RFP
obligations.
DATES: Comments. Comments must be received on or before February 7,
2011.
Public Hearings. If anyone contacts us requesting a public hearing
on or before January 6, 2011, we will hold a public hearing. Please
refer to SUPPLEMENTARY INFORMATION for additional information on the
comment period and the public hearing.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0891, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Mail: Air and Radiation Docket and Information Center,
Attention Docket ID No. EPA-HQ-OAR-2010-0891, Environmental Protection
Agency, 1301 Constitution Ave., NW., Washington, DC 20460. Mail Code:
2822T. Please include two copies if possible.
Hand Delivery: Air and Radiation Docket and Information
Center, Attention Docket ID No. EPA-HQ-OAR-2010-0891, Environmental
Protection Agency in the EPA Headquarters Library, Room Number 3334 in
the EPA West Building, located at 1301 Constitution Ave., NW.,
Washington, DC. The EPA/DC Public Reading Room hours of operation will
be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through
Friday, Air and Radiation Docket and Information Center.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0891. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
on-line at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be confidential business information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in http://www.regulations.gov. Although listed in the index, some information is
not publicly available, i.e., CBI or other information whose disclosure
is restricted by statute. Certain other material, such as
[[Page 80421]]
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air and Radiation Docket and
Information Center is in the EPA Headquarters Library, Room Number 3334
in the EPA West Building, located at 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744.
FOR FURTHER INFORMATION CONTACT: For further general information on
this rulemaking, contact Mr. H. Lynn Dail, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, (C539-
01), Research Triangle Park, NC 27711, phone number (919) 541-2363, fax
number (919) 541-0824 or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities potentially affected directly by this action include
State, local, and Tribal governments. Entities potentially affected
indirectly by this rule include owners and operators of sources of
emissions [volatile organic compounds (VOCs) and nitrogen oxides
(NOX)] that contribute to ground-level ozone concentrations.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed to be CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this notice will be posted at http://www.epa.gov/air/ozonepollution/actions.html#impl under ``recent actions.''
D. What information should I know about possible public hearing?
EPA will hold a public hearing only if a party notifies EPA by
January 3, 2011. Further details concerning a public hearing for this
proposed rule will be published in a separate Federal Register notice.
For updates and additional information on a public hearing, please
check EPA's Web site for this rulemaking at http://www.epa.gov/ozonepollution/actions.html#impl.
E. How is this notice organized?
The information presented in this notice is organized as follows:
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my comments for EPA?
C. Where can I get a copy of this document and other related
information?
D. What information should I know about possible public
hearings?
E. How is this notice organized?
II. Can emissions reductions from sources located outside the
nonattainment area boundary be used to meet RFP requirements?
A. Background
B. NRDC's Petition for Reconsideration of the August 2009 RFP
Rule on Credits for Outside Reductions
C. EPA's Proposed Approach to Relying on Credits From Outside
the Nonattainment Area to Meet the RFP Obligations and Response to
the Request for Reconsideration
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132--Federalism
F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
IV. Statutory Authority
List of Subjects
II. Can emissions reductions from sources located outside the
nonattainment area boundary be used to meet RFP requirements?
A. Background
Under EPA's Phase 2 \1\ Rule, certain emission reductions from
sources located outside a nonattainment area could be credited toward
meeting the 1997 ozone NAAQS RFP requirement. In the preamble to that
rule, EPA stated that credit could be taken for VOC and NOX
emission reductions within 100 kilometers (km) and 200 km,
respectively, outside the nonattainment area under certain
circumstances. In addition, if a regional NOX control
strategy were in place in a State, NOX reductions within
that State beyond 200 km could be credited toward meeting the RFP
target. In all cases, areas had to include a demonstration that the
emissions from outside the nonattainment area had an impact on ozone
air quality levels within the nonattainment area. EPA explained that
where data indicated that emissions reductions from sources outside a
nonattainment area improved ozone air quality within the nonattainment
area, it was appropriate to allow States to take RFP credit for such
reductions from outside the nonattainment area. This interpretation was
consistent with the policy EPA had established under the 1-hour ozone
standard ``Guidance for Implementing the 1-Hour Ozone and Pre-Existing
PM10 NAAQS,'' December
[[Page 80422]]
29, 1997.\2\ For a more complete discussion of EPA's rationale for
applying this interpretation in the Phase 2 Rule, see 70 FR at 71647-
49.
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\1\ See Final Rule to Implement the 8-Hour Ozone National
Ambient Air Quality Standard--Phase 2 (70 FR 71612, November 29,
2005).
\2\ The memorandum is available on the EPA Technology and
Transfer Network (TTN) Policy and Guidance page for Title I at this
Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.
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On January 27, 2006, the Natural Resources Defense Council (NRDC)
filed a petition for review of EPA's Phase 2 Ozone Implementation Rule
in the U.S. Court of Appeals for the District of Columbia Circuit (the
Court). NRDC challenged several aspects of the Phase 2 Rule including
EPA's interpretation that formed the basis of its policy for allowing
credit for reductions outside the nonattainment area, namely EPA's
interpretation that the intent of section 182(c)(2)(C) is to reduce
ambient ozone concentrations within an area rather than to reduce
emissions within the nonattainment area. NRDC claimed that EPA's
interpretation and implementation of these provisions were both
unlawful and arbitrary. NRDC also argued that the rule was arbitrary
because it allowed the State to claim credit for emission reductions
from selected outside-the-nonattainment-area sources without also
adding emissions from other outside sources to the RFP baseline, even
where those other sources impact air quality in the nonattainment area.
Following the conclusion of briefing in this case, EPA published a
final rule implementing the NAAQS for fine particulate matter (the
PM2.5 Implementation Rule) where we adopted a different
approach for crediting reductions from outside nonattainment areas
(``outside'' reductions). See 72 FR 20586 (April 25, 2007). The
PM2.5 Rule allows States to take credit for ``outside''
reductions of NOX and sulfur dioxide (SO2)
emissions up to 200 km from the nonattainment area (and potentially VOC
or ammonia as well) provided certain conditions are met, including that
when taking RFP credit for emissions reductions achieved in ``outside''
areas, the baseline emissions inventory for the nonattainment area
contain all, rather than a select few, sources in the outside area.\3\
The primary objective of this policy was to reflect the net emission
reductions in the ``outside'' area that could affect the nonattainment
area rather than crediting only reductions from selected sources.
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\3\ In addition, where State RFP plans rely on ``outside''
reductions to meet the RFP obligations, such plans must include a
technical demonstration showing that such outside emissions
significantly affected the PM2.5 concentrations within
the nonattainment area. And, the area outside the nonattainment area
from which creditable reductions are taken must be within the State;
areas outside the State but within 200 km would not be eligible for
credit for RFP purposes.
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Following publication of the PM2.5 Implementation Rule,
EPA requested from the Court on July 17, 2007, a partial voluntary
remand of the Phase 2 Rule to reevaluate and consider whether to revise
the RFP interpretation for ozone to assure consistency with the
provisions in the PM2.5 Implementation Rule. In response to
EPA's motion for a partial voluntary remand of the ozone RFP policy,
NRDC asked the Court to also vacate this provision. On November 2,
2007, the Court issued an order that vacated and remanded the portion
of the Phase 2 Rule that permitted credit for reductions of VOC and
NOX from outside nonattainment areas. On August 11, 2009 (74
FR 40074), EPA issued a final rule to revise the RFP policy in the
Phase 2 Rule to be consistent with the interpretation in the
PM2.5 Implementation rule.
Meanwhile on July 10, 2009, the Court issued its decision on the
other issues in the Phase 2 Ozone Implementation Rule case. NRDC v.
EPA, 571 F.3d 1245 (DC Cir. 2009). The Court examined the phrase ``in
the area'' included in separate provisions relating to reductions from
the application of Reasonably Available Control Technology (RACT) (CAA
sections 172 (1) and 182(b)(2)). In the Phase 2 Rule, EPA had explained
that because an interstate emissions trading program [the
NOX State implementation plan (SIP) call's NOX
budget program] would achieve beyond RACT-level NOX
reductions regionally, areas did not have to meet the RACT-level
reductions required under CAA section 172(c)(1) solely from within the
nonattainment area. The Court, however, concluded that the phrase ``in
the area'' means that reductions must occur within the area and
``reductions from outside the nonattainment area do not satisfy the
requirement.'' 571 F.3d at 1256. Although such region-wide reductions
could potentially satisfy the statutory requirement that the reductions
must be from sources within the nonattainment area, the Court found
that EPA had not made a demonstration for all nonattainment areas
within the SIP Call area showing that the regional emissions trading
program did in fact produce sufficient reductions from inside each
nonattainment area to represent RACT-level reductions. Id.
B. NRDC's Petition for Reconsideration of the August 2009 RFP Rule on
Credits for Outside Reductions
Following the Court's decision, on October 9, 2009, NRDC filed a
petition with EPA for administrative reconsideration of the August 2009
final rule revising EPA's interpretation in the Phase 2 Ozone
Implementation Rule on allowing credit toward meeting the RFP
requirements using emissions reductions from outside of ozone
nonattainment areas. In its petition, NRDC based its objections to the
rule on the following grounds: (1) The Court's decision on the RACT
provisions in the Phase 2 Rule and its interpretation of the phrase
``sources in the area'' requires that RFP emission reductions also be
achieved only from sources within the nonattainment area; (2) EPA
presented a new rationale, i.e., there is some ambiguity in the
statutory provisions because they do not prohibit credits for
reductions from outside the nonattainment area, for which it did not
provide an opportunity for comment; (3) EPA offered a new and arbitrary
rationale for its choice of the 100 and 200 km distances for
``outside'' reductions; (4) EPA stated a new and arbitrary rationale,
i.e., creditable ``outside'' reductions must be reasonably expected to
provide ozone air quality benefits comparable to those from reductions
in the area, for evaluating ``outside'' reductions; and (5) EPA relied
on a new rationale when it explained that sources that are outside the
nonattainment area are not necessarily ``nearby'' for designations
purposes and certain factors would need to be considered for judging
whether an area is ``nearby.''
On May 13, 2010, EPA granted reconsideration of the rule based on
NRDC's petition and stated it would initiate rulemaking to address the
reconsideration. EPA is addressing the reconsideration through this
proposed rulemaking. NRDC's first objection is addressed in the
following section and EPA believes that the proposed action makes
NRDC's other objections moot. Therefore, EPA is not addressing any of
those subsequent points here.
C. EPA's Proposed Approach to Relying on Credits From Outside the
Nonattainment Area to Meet the RFP Obligations and Response to the
Request for Reconsideration
EPA is proposing to set aside its earlier interpretation of the RFP
provisions in the August 2009 final rule and no longer permit States to
rely on credit for emission reductions from outside the ozone
nonattainment area to meet such an area's RFP obligations. In light of
the Court's decision in NRDC discussed previously, and upon
consideration of NRDC's petition for reconsideration, EPA believes that
the language in the baseline emissions
[[Page 80423]]
provision for determining the emissions reductions required for RFP
purposes (CAA sections 182(b)(1)(B) and 182(c)(2)(B)) is almost
identical to the language in the RACT provision (section 172(c)(1))
addressed by the Court, and thus compels a similar interpretation. All
three sections contain the phrase ``in the area'' and in examining the
RACT provision the Court found that language compelled that the
reductions must come from within the nonattainment area, and that
reductions from outside the nonattainment area would not satisfy the
statutory requirement for reductions ``in the area.'' We see no basis
for interpreting that same clause in the RFP provisions in a different
manner in light of the Court's decision.
EPA is therefore proposing that for the 1997 ozone NAAQS States may
not take credit for VOC or NOX reductions occurring outside
the nonattainment area for purposes of meeting the section 182(b) and
(c) RFP requirements. This includes the 15 percent VOC plan requirement
for Moderate and above ozone nonattainment areas in section 182(b)(1)
and the additional 3 percent per year requirement for Serious and above
ozone nonattainment areas in section 182(c)(2)(B).
EPA recognizes that not allowing credit for emissions reductions
outside the nonattainment area will make it more challenging for some
areas, such as nonattainment areas adjacent to the South Coast Air
Quality Management District, namely, Coachella Valley, West Mojave
Desert and Ventura County in California, to meet the RFP requirements,
and may limit the extent to which regional programs can be creditable
toward RFP. For ozone nonattainment areas that are not able to meet the
182(b)(1) and 182(c)(2)(B)(i) RFP requirements, the CAA allows for a
lesser amount of RFP if certain conditions are met. For an area to
qualify for a less than the required 15 percent emissions reduction,
that State must demonstrate that, in the area, New Source Review (NSR)
provisions are applicable in the same manner and to the same extent as
in an Extreme area, RACT is required for all existing major sources,
and the RFP plan includes all feasible measures that can be implemented
in light of technological achievability. For purposes of applying this
provision, a major source is defined as a source that emits or has the
potential to emit at least 5 tons per year of VOC. Similarly, for
Serious and above areas to qualify for less than the required 3 percent
each year of reductions in emissions to meet their RFP obligations, a
State must show that the SIP includes all feasible measures that can be
implemented in the area in light of technological achievability. In
both instances, the State must also demonstrate that the SIP for the
area includes measures that are achieved in practice by sources in the
same source category in nonattainment areas of the next higher
classification. See 182(b)(1)(A)(ii) and 182(c)(2)(B)(ii).
Despite the Court's opinion in NRDC, there may remain valid policy
reasons for giving States incentive to focus on obtaining emission
reductions that are the most beneficial and cost effective for
attaining the ozone standards. Also, there may be cases where the most
beneficial and cost-effective reductions are from sources located
outside the nonattainment area boundaries. In these cases, there may be
good reason to credit the emission reductions toward meeting RFP
requirements. To this end, EPA is also taking comment on allowing
credit for reductions outside the nonattainment area to satisfy the RFP
requirements for the 1997 and 2010 ozone NAAQS. If EPA finalizes this
proposal to provide that credit cannot be taken for emission reductions
from outside the nonattainment area, States that previously submitted
plans that relied on such credit will need to submit new RFP
demonstrations for those areas.
EPA requests comments on the proposal and the implications for the
1997 ozone NAAQS.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``non-significant regulatory action'' because it does
not raise novel legal or policy issues arising out of legal mandates.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
The CAA imposes the obligation for States to submit SIPs, including
RFP, to implement the ozone NAAQS. In this proposal, EPA is merely
providing an interpretation of those requirements; thus there is no
information collection burden. However, the Office of Management and
Budget (OMB) has previously approved the information collection
requirements contained in the existing regulations 40 CFR parts 50 and
51 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
et seq. and has assigned OMB control number 2060-0594. The OMB control
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of any regulation subject
to notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the Agency certifies the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of these proposed regulations
on small entities, small entity is defined as: (1) A small business as
defined in the Small Business Administration's (SBA) regulations at 13
CFR 121.201); (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.
After considering the economic impact of these proposed revisions
to the regulations on small entities, I certify that this action will
not have a significant economic impact on a substantial number of small
entities. This proposal will not impose any requirements on small
entities.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (URMA), 2 U.S.C.
1531-1538 for State, local, and Tribal governments, in the aggregate,
or the private sector. This action imposes no enforceable duty on any
State, local or Tribal governments or the private sector. Therefore,
this action is not subject to the requirements of section 202 and 205
of the UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism.
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State
[[Page 80424]]
and local officials in the development of regulator 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.'' This action does not have Federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. This proposed rule,
if made final, would modify the rules for implementing the 1997 8-hour
ozone NAAQS. Thus, Executive Order 13132 does not apply to these
proposed regulation revisions.
In the spirit of Executive Order 13121 and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA is soliciting comments on this proposal from State and
local officials.
F. 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 9, 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.''
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). They do not have
a substantial direct effect on one or more Indian Tribes, since no
Tribe has to develop a SIP under these proposed regulatory revisions.
Furthermore, these proposed regulation revisions do not affect the
relationship or distribution of power and responsibilities between the
Federal government and Indian Tribes. The CAA and the Tribal Air Rule
establish the relationship of the Federal government and Tribes in
developing plans to attain the NAAQS, and these revisions to the
regulations do nothing to modify that relationship. This proposed
regulation revision does not have Tribal implications. Thus, Executive
Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because this proposed revision addresses whether allowing outside
the nonattainment area emission reduction credits for purposes of RFP
obligations will adequately ensure attainment and maintenance of the
1997 ozone NAAQS and meet the obligations of the CAA. The NAAQS are
promulgated to protect the health and welfare of sensitive population,
including children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
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 EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. The 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. NTTAA
directs EPA to provide Congress, through OMB, explanations when the
Agency decides not to use available and applicable voluntary consensus
standards.
This proposed revision to the regulations does not involve
technical standards. Therefore, EPA is not considering the use of any
voluntary consensus standards.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The CAA imposes the obligation for States to submit SIPs,
including RFP, to implement the ozone NAAQS. In this proposal, EPA is
merely providing an interpretation of those requirements. The proposed
interpretation, if promulgated, would no longer permit States to rely
on credit for emission reductions from outside a nonattainment area to
meet such an area's RFP obligations, which are designed to protect all
segments of the general population. As such, they do not adversely
affect the health or safety of minority or low-income populations and
are designed to protect and enhance the health and safety of these and
other populations.
K. Determination Under Section 307(d)
Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the
Administrator determines that this action is subject to the provisions
of section 307(d). Section 307(d)(1)(V) provides that the provisions of
section 307(d) apply to ``such other actions as the Administrator may
determine.''
VII. Statutory Authority
The statutory authority for this action is provided by sections
109; 110; 172; 181 through 185B; and 301(a)(1) of the CAA, as amended
(42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7502; 42 U.S.C. 7511-7511f;
42 U.S.C. 7601(a)(1)). This notice is also subject to section 307(d) of
the CAA (42 U.S.C. 7407(d)).
List of Subjects
40 CFR Part 50
Environmental protection, Air pollution control, Ozone,
Particulate.
40 CFR Part 51
Air pollution control, Intergovernmental relations, Ozone, Nitrogen
oxides, Volatile organic compounds.
[[Page 80425]]
Dated: December 15, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-32139 Filed 12-21-10; 8:45 am]
BILLING CODE 6560-50-P