Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 39413

Facility Office between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The Docket 

Management Facility Office (telephone 

(800) 647–5227) is located on the plaza 

level of the Department of 

Transportation Nassif Building at the 

street address stated in ADDRESSES.

Comments will be available in the AD 

docket shortly after the Docket 

Management Facility Office receives 

them.

Authority for This Rulemaking 

Title 49 of the United States Code 

specifies the FAA’s authority to issue 

rules on aviation safety. Subtitle I, 

section 106, describes the authority of 

the FAA Administrator. Subtitle VII, 

Aviation Programs, describes in more 

detail the scope of the Agency’s 

authority. 

We are issuing this rulemaking under 

the authority described in subtitle VII, 

part A, subpart III, section 44701, 

‘‘General requirements.’’ Under that 

section, Congress charges the FAA with 

promoting safe flight of civil aircraft in 

air commerce by prescribing regulations 

for practices, methods, and procedures 

the Administrator finds necessary for 

safety in air commerce. This regulation 

is within the scope of that authority 

because it addresses an unsafe condition 

that is likely to exist or develop on 

products identified in this rulemaking 

action. 

Regulatory Findings 

We have determined that this AD will 

not have federalism implications under 

Executive Order 13132. This AD will 

not have a substantial direct effect 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. 

For the reasons discussed above, I 

certify that the regulation: 

1. Is not a ‘‘significant regulatory 

action’’ under Executive Order 12866; 

2. Is not a ‘‘significant rule’’ under the 

DOT Regulatory Policies and Procedures 

(44 FR 11034, February 26, 1979); and 

3. Will not have a significant 

economic impact, positive or negative, 

on a substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

We prepared a summary of the costs 

to comply with this AD and placed it in 

the AD Docket. You may get a copy of 

this summary by sending a request to us 

at the address listed under ADDRESSES.

List of Subjects in 14 CFR Part 39 

Air transportation, Aircraft, Aviation 

safety, Safety.

Adoption of the Amendment

■ Under the authority delegated to me by 

the Administrator, the Federal Aviation 

Administration amends part 39 of the 

Federal Aviation Regulations (14 CFR 

part 39) as follows:

PART 39—AIRWORTHINESS 

DIRECTIVES

■ 1. The authority citation for part 39 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]

■ 2. The FAA amends § 39.13 by adding 

the following new airworthiness 

directive:

2005–14–09 Rolls-Royce plc: Amendment 

39–14186. Docket No. FAA–2005–21730; 

Directorate Identifier 2005–NE–18–AD. 

Effective Date 

(a) This airworthiness directive (AD) 

becomes effective July 25, 2005. 

Affected ADs 

(b) None. 

Applicability 

(c) This AD applies to Rolls-Royce plc (RR) 

Model RB211 Trent 768–60, Trent 772–60, 

and Trent 772B–60 turbofan engines with 

Engine Electronic Controllers (EECs) listed by 

P/N in the following Table 1:

TABLE 1.—AFFECTED EEC PART

NUMBERS

EEC2000.06.BB.1 

EEC2000–06–BE–1 

EEC2000–06–BG–1 

EEC2000–06–BH–1 

EEC2000–06–BL–1 

EEC2000–06–BM–1 

EEC2000.07.BB.1 

EEC2000–07–BE–1 

EEC2000–07–BG–1 

EEC2000–07–BH–1 

EEC2000–07–BL–1 

EEC2000–07–BM–1 

These engines are installed on, but not 

limited to, Airbus A330 series airplanes. 

Unsafe Condition 

(d) This AD results from nine reports of 

loss of engine parameters displayed in the 

airplane cockpit, with the simultaneous loss 

of capability to change thrust of the affected 

engine. We are issuing this AD to prevent 

loss of airplane control after an aborted 

takeoff due to asymmetric thrust. 

Compliance 

(e) You are responsible for having the 

actions required by this AD performed before 

July 31, 2006, unless the actions have already 

been done. 

Removal From Service of EECs 

(f) Remove from service the EECs with part 

numbers listed in Table 1 of this AD. 

(g) Information on the EEC software 

changes can be found in Rolls-Royce Alert 

Service Bulletin No. RB.211–73–AE324, 

Revision 2, dated November 1, 2004. 

Alternative Methods of Compliance 

(h) The Manager, Engine Certification 

Office, has the authority to approve 

alternative methods of compliance for this 

AD if requested using the procedures found 

in 14 CFR 39.19. 

Related Information 

(i) CAA airworthiness directive G–2004–

0025, dated October 27, 2004, also addresses 

the subject of this AD. 

Material Incorporated by Reference 

(j) None.

Issued in Burlington, Massachusetts, on 

July 1, 2005. 

Jay J. Pardee, 

Manager, Engine and Propeller Directorate, 

Aircraft Certification Service.

[FR Doc. 05–13425 Filed 7–7–05; 8:45 am] 

BILLING CODE 4910–13–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51 

[E–Docket ID No. OAR–2003–0079, FRL–

7934–9] 

RIN 2060–AJ99 

Nonattainment Major New Source 

Review Implementation Under 8-Hour 

Ozone National Ambient Air Quality 

Standard: Reconsideration

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule; notice of final action 

on reconsideration. 

SUMMARY: On April 30, 2004, the EPA 

(we)(in this preamble, the terms ‘‘we’’

and ‘‘us’’ refers to the EPA, and ‘‘our’’

refers to EPA’s. All other entities are 

referred to by their respective names 

(e.g., commenter)) took final action on 

key elements of the program to 

implement the 8-hour ozone national 

ambient air quality standard (NAAQS or 

8-hour standard). In that final action, we 

addressed certain implementation 

issues related to the 8-hour standard, 

including the nonattainment major New 

Source Review (NSR) program 

mandated by part D of title I of the Clean 

Air Act (‘‘the Act’’ or ‘‘CAA’’). 

Following this action, EarthJustice filed 

a petition on behalf of several 

organizations requesting reconsideration 

of several aspects of the final rule 

including implementation of the 

nonattainment major NSR program, 

among other issues. By a letter, dated 

September 23, 2004, we granted 

39414 Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 

reconsideration of three issues raised by 

the petition for reconsideration filed by 

EarthJustice. One of these issues relates 

to implementation of the major NSR 

program. 

On April 4, 2005, in response to the 

request for reconsideration relating to 

aspects of the nonattainment major NSR 

program for the 8-hour standard, we 

proposed to retain the final rule as 

promulgated on April 30, 2004. (70 FR 

17018). We requested comment on and 

provided additional information related 

to whether we should interpret the Act 

to require areas to retain major NSR 

requirements that apply to certain 1-

hour ozone nonattainment areas in 

implementing the 8-hour standard. We 

also requested comment on whether we 

properly concluded that a State’s 

request to remove 1-hour major NSR 

provisions from its State 

Implementation Plan (SIP) will not 

interfere with any applicable 

requirement within the meaning of 

section 110(l) of the Act. 

Today, we are re-affirming our April 

30, 2004 final rule. We conclude that 

the requirements for nonattainment 

major NSR under the 8-hour standard 

will be based on a nonattainment area’s 

classification for the 8-hour standard, 

and that States may remove their 1-hour 

major NSR programs from their SIPs 

now that we have revoked the 1-hour 

standard. We believe that our 

conclusions are consistent with the Act, 

including section 110(l), our antibacksliding policy we established for 

the 8-hour standard, and the ability of 

areas to achieve reasonable further 

progress (RFP) and attainment.

DATES: This final action is effective on 

August 8, 2005.

ADDRESSES: The EPA docket for this 

action is Docket ID No. OAR–2003–

0079. All documents in the docket are 

listed in the EDOCKET index at

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, i.e., Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as 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 EDOCKET or in hard 

copy at the Air Docket, Environmental 

Protection Agency, EPA West, 1301 

Constitution Avenue, NW., Room B–

102, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566–

1742.

FOR FURTHER INFORMATION CONTACT: Ms. 

Lynn Hutchinson, Office of Air Quality 

Planning and Standards, (C339–03), 

U.S. EPA, Research Triangle Park, North 

Carolina 27711, telephone number (919) 

541–5795, fax number (919) 541–5509, 

e-mail address: 

hutchinson.lynn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information 

A. Does This Action Apply to Me? 

Entities potentially affected by the 

subject rule for today’s action include 

sources in all industry groups. The 

majority of sources potentially affected 

are expected to be in the following 

groups.

Industry group SIC a NAICSb

Electric Services ................................................................................ 491 221111, 221112, 221113, 221119, 221121, 221122. 

Petroleum Refining ............................................................................ 291 324110. 

Industrial Inorganic Chemicals .......................................................... 281 325181, 325120, 325131, 325182, 211112, 325998, 331311, 

325188. 

Industrial Organic Chemicals ............................................................. 286 325110, 325132, 325192, 325188, 325193, 325120, 325199. 

Miscellaneous Chemical Products ..................................................... 289 325520, 325920, 325910, 325182, 325510.

Natural Gas Liquids ........................................................................... 132 211112. 

Natural Gas Transport ....................................................................... 492 486210, 221210. 

Pulp and Paper Mills ......................................................................... 261 322110, 322121, 322122, 322130. 

Paper Mills ......................................................................................... 262 322121, 322122. 

Automobile Manufacturing ................................................................. 371 336111, 336112, 336211, 336992, 336322, 336312, 336330, 

336340, 336350, 336399, 336212, 336213. 

Pharmaceuticals ................................................................................ 283 325411, 325412, 325413, 325414. 

aStandard Industrial Classification. 

b North American Industry Classification System. Entities potentially affected by the subject rule for today’s action also include State, local, and 

Tribal governments that are delegated authority to implement these regulations. 

B. 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 final 

action will also be available on the 

World Wide Web. Following signature 

by the EPA Administrator, a copy of this 

notice will be posted in the regulations 

and standards section of the our NSR 

home page located at http://

www.epa.gov/nsr.

C. 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. Where Can I Get a Copy of This 

Document and Other Related 

Information?

C. How Is This Notice Organized? 

II. Background 

III. Today’s Final Action on Reconsideration 

A. Final Decision 

B. Effective Date 

C. Significant Comments: Summary and 

Response 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA), as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA), 5 U.S.C. 601 et seq.

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 

Risks 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. Congressional Review Act 

V. Statutory Authority 

VI. Judicial Review

Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 39415

1Petitioners are: (1) Earthjustice on behalf of the 

American Lung Association, Environmental 

Defense, Natural Resources Defense Council, Sierra 

Club, Clean Air Task Force, Conservation Law 

Foundation, and Southern Alliance for Clean 

Energy; (2) the National Petrochemical and Refiners 

Association and the National Association of 

Manufacturers; and (3) the American Petroleum 

Institute, American Chemistry Council, American 

Iron and Steel Institute, National Association of 

Manufacturers and the U.S. Chamber of Commerce.

2 In implementing a program consistent with the 

major NSR requirements that apply based on that 

area’s classification under the 8-hour standard, 

section 116 of the Act allows States to adopt 

regulations which are not less stringent than the 

federal minimum requirements.

II. Background 

On July 18, 1997, we revised and 

strengthened the ozone NAAQS to 

change from a standard measured over 

a 1-hour period (1-hour standard) to a 

standard measured over an 8-hour 

period (8-hour standard). Previously, 

the 1-hour standard was 0.12 parts per 

million (ppm). We established the new 

8-hour standard at 0.08 ppm. (62 FR 

38856). Following revision of the 

standard, we initially promulgated a 

rule that provided for implementation of 

the 8-hour standard under the general 

nonattainment area provisions of 

subpart 1 of Part D of the Act. (62 FR 

38421). Subsequently, the Supreme 

Court ruled that our implementation 

approach was unreasonable because we 

did not provide a role for the generally 

more stringent ozone-specific provisions 

of subpart 2 of Part D of the Act in 

implementing the 8-hour standard. See 

Whitman v. Amer. Trucking Assoc., 531 

U.S. 457, 471–476, 121 S. Ct. 903, 911–

914 (2001). The Court remanded the 

rule to us to develop a reasonable 

approach for implementation. Id.

On June 2, 2003, we proposed various 

options for transitioning from the 1-hour 

to the 8-hour standard, and for how the 

8-hour standard would be implemented 

under both subpart 1 and subpart 2. (68 

FR 32802). On August 6, 2003, we 

published a notice of availability of 

draft regulatory text to implement the 8-

hour standard. (68 FR 46536). Among 

other things, this proposed rule 

included certain provisions for 

implementing major NSR. Specifically, 

we proposed that major NSR would 

generally be implemented in accordance 

with an area’s 8-hour ozone 

nonattainment classification, but we 

would provide an exception for areas 

that were designated nonattainment for 

the 1-hour standard at the time of 

designation for the 8-hour standard. If 

the classification for a 1-hour 

nonattainment area was higher than its 

classification under the 8-hour standard, 

then under the proposed rule, the major 

NSR requirements in effect for the 1-

hour standard would have continued to 

apply under the 8-hour standard even 

after we revoked the 1-hour standard. 

(68 FR 32821). 

On April 30, 2004, we promulgated 

Phase I of the new implementation rule. 

(69 FR 23951). In response to comments 

received on the proposal, we revised the 

implementation approach for major NSR 

under the 8-hour standard. Specifically, 

we determined that major NSR would 

be implemented in accordance with an 

area’s 8-hour ozone nonattainment 

classification. For those areas that we 

classify marginal and above, major NSR 

is implemented under subpart 2. We 

also indicated that, when we revoke the 

1-hour standard, a State is no longer 

required to retain a nonattainment major 

NSR program in its SIP based on the 

requirements that applied by virtue of 

the area’s previous classification under 

the 1-hour standard. We further 

indicated that we would approve a 

request to remove these requirements 

from a State’s SIP because we 

determined, based on section 110(l) of 

the Act, that such changes will not 

interfere with any applicable 

requirements of the Act, including a 

State’s ability to reach attainment of the 

8-hour standard or RFP towards that 

standard. (69 FR 23985). We noted that 

States will be required to implement a 

major NSR program based on the 8-hour 

classifications. We also emphasized that 

emission limitations and other 

requirements in major NSR permits 

issued under 1-hour major NSR 

programs will remain in effect even after 

we revoke the 1-hour standard. (69 FR 

23986). 

Following publication of the April 30, 

2004 final rule, the Administrator 

received three petitions, pursuant to 

section 307(d)(7)(B) of the Act, 

requesting reconsideration of certain 

aspects of the final rule.1 On June 29, 

2004, Earthjustice submitted one of the 

three petitions that we received. This 

petition seeks reconsideration of certain 

elements of the Phase I Ozone 

Implementation Rule, including 

elements of the major NSR provisions. 

With respect to major NSR, Petitioners 

contend that the final rules are unlawful 

because the rules violate section 110(l) 

and section 172(e) of the Act by not 

requiring 8-hour ozone nonattainment 

areas to continue to apply major NSR 

requirements based on the area’s prior 

1-hour ozone nonattainment 

classification. Petitioners also allege that 

we acted unlawfully by stating that we 

will approve a State’s request to remove 

1-hour requirements from the SIP based 

on our finding that such a revision 

would not violate section 110(l) for any 

State. Petitioners assert that these major 

NSR provisions and our rationale for 

them were added to the final action after 

the close of the public comment period. 

Thus, Petitioners claim, we failed to 

provide notice and opportunity for 

public comment concerning these 

provisions as required under section 

307(d)(5) of the Act.

On September 23, 2004, we granted 

reconsideration of three issues raised in 

the Earthjustice Petition, including the 

NSR issues. In an action dated February 

3, 2005, we issued a Federal Register

notice addressing two of those issues: 

(1) The provision that section 185 fees 

would no longer apply for a failure to 

attain the 1-hour standard once we 

revoke the 1-hour standard; and (2) the 

timing for determining what is an 

‘‘applicable requirement.’’ (70 FR 5593). 

On May 26, 2005, we took final action 

on these issues. (70 FR 30592). 

On April 4, 2005, as part of our 

reconsideration process, we requested 

comment on: (1) Whether we must 

interpret the Act to require States to 

continue major NSR requirements under 

the 8-hour standard based on an area’s 

higher classification under the 1-hour 

standard; and (2) whether revising a 

State SIP to remove 1-hour major NSR 

requirements is consistent with section 

110(l) of the Act. However, we proposed 

to retain the nonattainment major NSR 

requirements as outlined in our April 

30, 2004 final rules. (70 FR 17018). 

III. Today’s Final Action on 

Reconsideration 

A. Final Decision

Today, we re-affirm our April 30, 

2004 final rules. Accordingly, States 

must issue permits to regulate 

construction and major modifications of 

major stationary sources consistent with 

the major NSR requirements that apply 

based on that area’s classification under 

the 8-hour standard.2 If a State currently 

lacks an approved NSR program that 

applies for the 8-hour standard, the 

State must submit an NSR program to 

EPA for our approval. The deadline for 

submission will be established in Phase 

II of the ozone implementation rule. 

Moreover, we find that section 110(l) 

does not preclude us from approving a 

State’s request to revise its SIP to 

remove 1-hour nonattainment major 

NSR requirements.

After reviewing comments we 

received on the proposal, we continue 

to interpret the Act as not requiring 

States to retain major NSR requirements 

related to the 1-hour standard in 

implementing nonattainment major NSR 

39416 Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 

3On April 18, 2005, we held a hearing to afford 

the public an opportunity to provide oral testimony 

on our reconsideration of the nonattainment major 

NSR provisions in the Phase I Ozone 

Implementation rule. One person attended the 

hearing and provided testimony supporting the 

concerns raised in the Earthjustice petition. 

Following the public hearing, we received public 

comment letters from approximately 20 individuals 

or groups. Section III. B. of this preamble contains 

a summary of significant comments we received 

and our responses to those comments.

for the 8-hour standard.3 Consistent 

with the mandates of the Supreme Court 

in Whitman v. American Trucking, we 

crafted a reasonable approach for 

implementing major NSR requirements 

under the 8-hour standard. 531 U.S. 457 

(2001). Moreover, we interpret the 

requirements of section 172(e) as not 

applying in these circumstances, and 

believe that we have reasonably 

interpreted this provision in crafting our 

anti-backsliding policies for the 8-hour 

standard to exclude major NSR 

programs as a ‘‘control measure.’’ We 

further believe that basing an area’s 

major NSR requirements on that area’s 

classification under the 8-hour standard 

will assure that any new emissions from 

the construction or modification of 

major stationary sources will be 

sufficiently mitigated to ensure that 

such emissions will not interfere with 

RFP or attainment.

B. Effective Date 

In granting reconsideration of the 

EarthJustice petition, the Administrator 

elected not to stay or vacate the existing 

regulations. Accordingly, these 

requirements remained in effect 

following the April 30, 2004 

promulgation. Several environmental, 

industry, and governmental petitioners 

subsequently challenged the April 30, 

2004 rule implementing the 8-hour 

ozone standard. South Coast Air Quality 

Management District v. U.S. EPA, No. 

04–1200 (and consolidated cases) (DC 

Cir.). After we granted portions of the 

EarthJustice petition for reconsideration, 

the Court, at our request, severed the 

challenges to the three issues for which 

EPA granted reconsideration from the 

main consolidated cases challenging the 

implementation rule. However, because 

we committed to an expeditious 

determination of the three issues under 

reconsideration, the parties 

subsequently agreed that it would serve 

judicial economy and the parties’

resources to consolidate the severed 

case relating to the three issues under 

reconsideration back into the main case 

challenging our April 30, 2004 

implementation rule. We filed a motion 

seeking such consolidation. The EPA 

represented in that motion that it would 

not take final action on any SIP 

submittals relating to those provisions 

earlier than 30 days after it has signed 

a final action on the aspect of the 

reconsideration to which the SIP 

pertains. Accordingly, we will not take 

final action on a State’s request to revise 

its SIP relative to the 1-hour and 8-hour 

nonattainment major NSR programs 

until that time. 

C. Significant Comments: Summary and 

Response

In our April 4, 2005 proposal, we 

requested comment on five issues 

related to our reconsideration: 

(1) Our determination that the Act 

does not require States to apply major 

NSR requirements under the 8-hour 

standard based on an area’s higher 

classification under the 1-hour standard 

after we revoke the 1-hour standard; 

(2) Our interpretation that the term 

‘‘control’’ as used in section 172(e) of 

the Act does not include major NSR 

requirements; 

(3) Our conclusion that a State’s 

removal of 1-hour major NSR programs 

from its SIP will not interfere with any 

applicable requirements of the Act 

including attainment and RFP; 

(4) Our discussion regarding State and 

local agency emissions projections used 

for RFP and attainment, including 

whether the statements we have made 

regarding those emissions projections 

are accurate; and 

(5) Information on any instance in 

which a State or local agency relied on 

major NSR as a control measure to 

reduce overall base year emissions in a 

rate of progress (ROP) plan or 

attainment demonstration. 

Below we consolidated the comments 

that we received to these questions into 

four main topic areas, and provide our 

response to those comments. 

1. Does the Act Require States To Apply 

Major NSR Requirements Under the 8-

Hour Standard Based on an Area’s 

Higher Classification Under the 1-Hour 

Standard? 

a. Comments 

Several commenters supported our 

position that the Act does not require 

States to apply major NSR requirements 

under the 8-hour standard based on an 

area’s higher classification under the 1-

hour standard. Nonetheless, several 

commenters disagreed with our 

position, that section 172(e) is an 

expression of Congressional intent that 

States may not remove control measures 

in areas which are not attaining a 

NAAQS when we revised that standard 

to make it more stringent, because the 

plain language of section 172(e) applies 

only when we make a NAAQS less 

stringent. One commenter stressed that 

section 172(e) could not logically be 

applied to a new 8-hour standard. 

Moreover, many of these commenters 

agreed with us, that even if section 

172(e) applies to the 8-hour 

implementation rule, we properly 

concluded that the major NSR program 

does not impose emissions reduction 

‘‘controls.’’

One commenter indicated that we 

would violate equal protection laws if 

we established different requirements 

for different areas based on their 

attainment status under the revoked 1-

hour standard when both are classified 

the same under the 8-hour standard. 

Another commenter stated that we 

appropriately looked into the 

Congressional history of the Act to 

determine the underlying purpose of the 

major NSR program and found that its 

purpose is to manage growth in a 

manner consistent with the goals and 

objectives of the Act. (70 FR 17022), 

H.R. Rpt. 95–294 at 210 (May 12, 1977). 

Conversely, several commenters 

contend that our decision that States 

need not retain nonattainment major 

NSR requirements based on the area’s 

classification under the 1-hour standard 

is contrary to the two anti-blacksliding 

provisions in the Act, sections 172(e) 

and 193. 42 U.S.C. sections 7502(e) and 

7515. Several commenters also alleged 

that in a Senate floor debate on the 1990 

amendments, Senator John Chafee 

described the purpose of section 193 of 

the Act as ‘‘intended to ensure that there 

is no backsliding on the implementation 

of adopted and currently feasible 

measures that EPA has approved as part 

of a [SIP] in the past, or that EPA has 

added to State plans on its own 

initiative or pursuant to a court order or 

settlement.’’ 136 Cong. Rec. S17, 232, 

S17, 237 (Oct 26, 1990). The 

commenters claim that our narrow 

interpretation of control measure cannot 

be reconciled with this broad definition. 

At least one commenter believes that the 

final rule is contrary to the provisions 

of the Act, because it allows major 

sources in 1-hour nonattainment areas 

that are designated with a lower 8-hour 

nonattainment classification to be 

subject to less stringent NSR 

requirements by raising the tonnage 

threshold for defining a major source 

and lowering the required offset ratio. 

b. Response

As stated in our April 4, 2005 notice 

on NSR reconsideration, after reviewing 

a variety of information including the 

statutory requirements, Congressional 

intent as expressed in legislative 

history, the history of the NSR 

regulatory program, and our actions on 

1-hour ozone ROP plans and attainment 

demonstrations in general as they relate 

Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 39417

to nonattainment major NSR programs, 

we concluded that the Act does not 

require States to retain a nonattainment 

program in their SIPs based on the 

requirements that applied by virtue of 

the area’s previous classification under 

the 1-hour standard. After considering 

the comments received on this issue 

that both support and oppose our 

position, we continue to believe that our 

conclusion on this issue is correct. 

We agree with commenters that 

section 172(e) does not apply to the 

requirements for the 8-hour ozone 

standard. Nonetheless, because the Act 

does not specifically address what 

requirements apply when we strengthen 

a NAAQS, we stated that we viewed the 

provisions in section 172(e) as an 

expression of Congressional intent that 

States may not remove control measures 

in areas which are not attaining a 

NAAQS when EPA revises that standard 

to make it more stringent. (70 FR 

17021). We continue to believe that 

Congress intended States to retain 

control measures in SIPs when we 

strengthen a NAAQS, but we do not 

believe that Congress intended to 

restrict States from amending their SIPs 

to adjust for future management of 

growth based on current day air quality 

needs. 

We agree with the commenters that 

even if section 172(e) applies when we 

strengthen a NAAQS, it would still not 

preclude a State from adjusting its 

nonattainment major NSR requirements 

because major NSR is not a control 

within the meaning of section 172(e) of 

the Act. We discuss this interpretation 

in more detail in section III.C.2. of 

today’s preamble. Moreover, we 

disagree with commenters who indicate 

that our final rules violate section 193 

of the Act. First, as noted, we do not 

believe that NSR programs are ‘‘control 

measures’’ within the meaning of 

section 193. Secondly, section 193 

applies to certain requirements that 

were in effect before 1990. Today’s final 

rules address how the post-1990 

requirements contained in subpart 2 of 

the Act will apply in 8-hour 

nonattainment areas.

Before 1990, the nonattainment major 

NSR requirements were contained in 

section 173 of the 1977 CAA and they 

did not include the higher offset ratios 

and lower major stationary source 

thresholds found in subpart 2 of the 

1990 CAA. In 1990, Congress added 

additional requirements to section 173 

and added subpart 2. Nothing in today’s 

final rule allows any jurisdiction to 

adopt nonattainment NSR requirements 

for the 8-hour standard that do not meet 

the minimum requirements the State 

used to satisfy section 173 before 1990. 

Accordingly, section 193 of the Act is 

not implicated by our final action. 

We disagree with the commenter that 

argues that Congress meant for section 

193 of the Act to have broader 

application. In fact, by its terms, section 

193 precludes broader application at 

least as it relates to subpart 2 

requirements. Congress added the 

subpart 2 requirements at the same time 

it added section 193. Congress 

expressed an intent to exclude the new 

requirements it added in 1990 by 

limiting section 193 to pre-1990 

requirements. The clear intent of this 

action is that Congress did not mean to 

use section 193 to limit the ability of 

States to revise SIPs relative to subpart 

2 requirements. Instead, Congress added 

section 110(l) to the Act to guide such 

SIP changes. Section 110(l) allows 

States to make changes to a State SIP 

with respect to measures not covered by 

section 193 if the change does not 

interfere with any applicable 

requirement concerning attainment and 

RFP or any other applicable requirement 

of the Act. We discuss how our final 

rule satisfies the requirements of section 

110(l) of the Act in section III.C.3. of 

this preamble. 

Viewing these two statutory changes 

in section 193 and section 110(l) 

together, Congress expressed an intent 

to have the pre-1990 requirements 

establish the foundation for the 

nonattainment program. However, 

Congress did not expressly require that 

States retain subpart 2 requirements, 

which were added by the 1990 

Amendments, in all circumstances. 

Accordingly, we reject the alternative 

interpretations expressed by 

commenters which essentially result in 

sections 110(l), 172(e), and 193 of the 

Act as having identical meanings 

notwithstanding their different wording. 

In Chevron v. NRDC, 467 U.S. 837 

(1984), the Supreme Court considered a 

challenge to EPA regulations 

implementing the NSR program which 

defined the term ‘‘source.’’ The Court 

concluded that neither the statutory 

language nor legislative history revealed 

Congress’ intent regarding the meaning 

of the term, and observed that Congress 

had intended to accommodate 

competing objectives but did not do so 

with specificity in its statutory 

language. Under these circumstances, 

the Court upheld EPA’s regulations as a 

reasonable accommodation of 

competing interests because the agency 

considered the matter in a detailed and 

reasoned fashion, and the decision 

involved reconciling conflicting 

policies. Id. at 865. The Court 

concluded that EPA’s regulations 

reasonably sought to accommodate 

progress in reducing air pollution with 

economic growth despite the fact that 

EPA’s regulatory changes would result 

in fewer sources going through major 

NSR. Id. at 866. 

Here, for the 8-hour standard, the 

Supreme Court directed us to develop a 

reasonable approach for implementing 

subpart 2 of Part D of the Act in 

implementing the 8-hour standard. 

Whitman v. Amer. Trucking Assoc., 531 

U.S. 457, 471–76 (2001). For purposes of 

implementing major NSR, we 

considered whether States should be 

required to implement subpart 2 in 

accordance with an area’s previous 

classification under the 1-hr standard, 

or with its new classification under the 

8-hour standard. After determining that 

either approach would be consistent 

with the Act and Congressional intent, 

we selected, and now re-affirm, the 

latter approach. We choose to require 

States to implement major NSR based 

on an area’s classification under the 8-

hour standard because we believe that 

such a classification better reflects the 

current day air quality needs of the area. 

Additionally, like the plantwide 

definition of ‘‘source’’ at issue in 

Chevron, this approach allows States to 

retain flexibility to better balance 

environmental objectives with economic 

growth. ‘‘When a challenge to an agency 

construction of a statutory provision 

centers on the wisdom of the agency’s 

policy, rather than whether it is a 

reasonable choice within a gap left open 

by Congress, the challenge must fail.’’

Chevron v. NRDC, 467 U.S. at 866. 

2. Does the Term ‘‘Control’’ as Used in 

Section 172(e) Include Major NSR 

Requirements?

a. Comments 

Several commenters agree that major 

NSR programs are not ‘‘controls’’ that 

must be preserved in implementing the 

8-hour standard. Some reasoned that 

major NSR does not contribute to 

emissions reductions below baseline 

levels. Others contend that ‘‘controls’’

and ‘‘growth measures’’ have distinct 

meanings and that ‘‘controls’’ are 

designed to target existing emissions. 

Others reasoned that if Congress was 

referring to all requirements within a 

SIP by using ‘‘controls’’ in section 

172(e), then Congress simply could have 

said that no SIP requirements can be 

relaxed when a standard is relaxed. For 

this reason, the commenters agree with 

EPA that by limiting section 172(e) to 

control measures Congress intended that 

only some SIP requirements would 

continue when a standard is relaxed, 

and major NSR is not one of these 

requirements. Importantly, one 

commenter reasoned that greater offset 

39418 Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 

4 In 1990, Congress recognized that many of the 

Nation’s air pollution problems failed to improve or 

grew more serious. In assessing the reasons for 

these failures, Congress identified several problems 

that lead to this result, including inadequate 

inventories, deficient models, and uncertainties that 

exist in the assumptions used in the models. 

Congress noted that EPA indicated that emissions 

growth and inaccurate emissions inventories were 

predominant problems. H.R. Rpt. 101–490(I) at 144 

(May 17, 1990). In response, Congress took many 

steps to improve air quality, including invalidating 

some of the existing growth allowances and shifting 

the emphasis from managing growth using growth 

allowances to using the case-by-case offset 

approach. In light of the past difficulties States 

experienced in attainment planning, Congress 

established a strategy that differentiates among 

areas with regard to attainment dates based on the 

severity of the area’s ozone problem, including 

increased offset ratios to compensate for 

uncertainties in predicting growth.

ratios may discourage growth altogether 

and that areas with slightly eased offset 

ratios may in fact experience more 

growth which would theoretically result 

in more offset reductions in the area 

than would occur if higher offset ratios 

were imposed. 

Other commenters argued that the 

structure of the Act and its legislative 

and regulatory history clearly supports 

the intent that the major NSR permitting 

program is a ‘‘growth measure,’’ rather 

than a ‘‘control measure.’’ One 

commenter pointed out that our 

conclusion that NSR is not a ‘‘control 

measure’’ is clear in the context of 

section 175A of the Act maintenance 

plans. (68 FR 25418, 25436). 

One commenter participated in the 

regulatory development process for 

Illinois’ RFP and nonattainment NSR 

SIP programs. The commenter indicates 

Illinois did not intend its nonattainment 

NSR rules (i.e., 35 Ill. Adm. Code part 

203) to be a ‘‘control measure,’’ but 

rather a procedural methodology to be 

used under defined circumstances. 

Conversely, several commenters 

disagreed with our assertion that the 

nonattainment NSR program is not a 

‘‘control’’ requirement or measure. 

Some commenters reasoned that we 

drew an artificial distinction between a 

‘‘growth measure’’ and a ‘‘control 

measure.’’ The commenters contend that 

our interpretation is too limited as they 

believe that NSR operates both to reduce 

emissions and to control emissions 

growth. 

One commenter asserts that EPA did 

not provide evidence substantiating our 

definition of ‘‘control’’ and why it does 

not include ‘‘growth measures.’’ The 

commenter further stated that we never 

discuss why it limits the reading of 

section 172(e) solely to measures that 

reduce emissions to assure attainment. 

Several commenters stated that 

nonattainment NSR imposes ‘‘controls’’

through the offset requirement and that 

there is legislative support for this 

position where the NSR program is 

described as a ‘‘graduated control 

program’’ involving increasingly 

protective requirements for higher 

classifications. One commenter 

reasoned there is nothing in section 

172(e) or elsewhere in the Act that 

limits the definition of control to 

programs whose benefits can be 

quantified and accounted for by a State 

in its attainment demonstration. 

Another commenter stated that NSR is 

a control measure because offsets are 

certain and are obtained from the same 

nonattainment area. 

Two commenters reiterate comments 

raised by Earthjustice’s petition that we 

characterized NSR as a pollution control 

measure in briefs we submitted to the 

court. The commenters stated that an 

emission limitation is a ‘‘control 

measure’’ or ‘‘requirement.’’ The 

commenters believe an interpretation 

that NSR is merely a ‘‘growth measure’’

is at odds with legislative history 

indicating that Congress sought to foster 

the development of control technology 

when it enacted Prevention of 

Significant Determination (PSD) and 

nonattainment NSR. 

One commenter cited several Federal 

Register notices in which we analyzed 

changes to a State’s SIP in light of 

section 193 requirements and argued 

that we would have not needed to 

evaluate whether a SIP change satisfies 

section 193 unless NSR is a ‘‘control 

requirement.’’

b. Response 

As we previously stated, Section 

172(e) does not apply to the 

requirements for the 8-hour ozone 

standard. In this action, we are not 

attempting to assign a comprehensive 

definition to the term ‘‘controls’’ as used 

in section 172(e) of the Act. Rather, we 

interpret the term solely as it relates to 

our anti-backsliding policy, and 

whether Congress would have intended 

States to retain the major NSR program 

as imposed on 1-hour ozone 

nonattainment areas as far back as 1990 

in implementing the new, more 

stringent 8-hr ozone NAAQS.

The term ‘‘controls’’ as used in 

section 172(e) of the Act is ambiguous. 

As we stated in our April 4, 2005 

proposal, Petitioners and others present 

a possible interpretation of this term. 

Nonetheless, based on our review of 

Congressional history and the structure 

of the Act, we believe Congress’ primary 

purpose in creating the major NSR 

program was to manage growth in a way 

that balances economic development 

with the air quality needs of specific 

nonattainment areas. 

Just as the Supreme Court recognized 

in Chevron, Congress intended to 

accommodate the competing objectives 

of progress in reducing air quality with 

economic growth, but did not always 

reconcile both of those interests with 

specificity in its language. We looked at 

several sections of the Act for direction 

in interpreting the term ‘‘control’’ in 

Section 172(e). (70 FR 17018, 17022). In 

particular, we looked at the Section 

172(a)(2) requirement that areas attain 

‘‘as expeditiously as practicable.’’

Unlike control measures, such as 

reasonably available control technology 

(RACT) and transportation control 

measures (TCM), we do not believe that 

Congress intended to link the major 

NSR program to the section 172(a)(2) 

requirement that areas attain ‘‘as 

expeditiously as practicable.’’ This is 

evident by Congress’s recognition and 

acceptance that economic growth will 

result in ‘‘some worsening of air quality 

or delay in actual attainment * * *’’

See H.R. Rpt. 95–294, 214–215 (May 12, 

1977). We distinguished Sections 

172(c)(1) and (c)(6) which require 

implementation of all reasonably 

available control measures as 

expeditiously as practicable to provide 

for attainment of the NAAQS from the 

Section 173(a)(1)(A) requirement that 

growth due to proposed sources be 

considered together with other plan 

provisions required under Section 172 

to ensure RFP toward attainment. After 

carefully reviewing the statute and 

statement of Congressional intent, we 

continue to conclude that Congress did 

not intend to include major NSR 

requirements within the scope of 

section 172(e) of the Act. 

Moreover, as explained in our April 4, 

2005 proposal, unlike control measures 

for which emissions reductions can be 

quantified and relied on in a modeling 

demonstration to show how the measure 

helps an area reach attainment, the 

generation of offsets are uncertain and 

generally cannot be quantified in 

advance by States. (70 FR 17018, 

17023). In 1990, Congress recognized 

that some States were not accurately 

predicting the growth within their 

attainment demonstrations. We believe 

it is reasonable to assume that Congress 

included major NSR in its ‘‘graduated 

control program’’ in subpart 2 to 

provide an extra buffer for growth in 

areas with more severe air quality 

problems.4

We do not believe that the structure 

of the Act and purpose of major NSR 

support a conclusion that Congress 

included major NSR in subpart 2 for the 

purpose of generating emissions 

reductions. The Act does not support 

the view that Congress intended the 

major NSR program to generate 

Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 39419

5Transcript July 19, 1994. (OAR–2001–0004–

0650 to –0651). NSR Reform Subcommittee 

Meeting. U.S. EPA. Statement by Mr. Barr. (To 

require a traditional offset equivalent in attainment 

areas would be, in most cases, equivalent to 

‘‘establishing a zone where there is a construction 

ban in effect.’’)

6Southern California Air Quality Alliance. (OAR–

2001–0004–0418). Letter to Docket. August 25, 

2003. (Comment states that high offset levels in 

California dissuaded a facility from replacing 3 old, 

high emitting boilers, with new, lower emitting 

boilers because the cost of offsets was prohibitive. 

Stated that ‘‘this is but one of many actual examples 

of ‘‘stringency’’ interfering with the emission 

reductions.’’)

emissions reductions in the State’s base 

year inventory to move the area forward 

in attainment, nor have States 

implemented the program in that 

manner. The purpose and historical 

implementation of major NSR 

distinguish it from the other 

requirements that we determined in the 

Phase I implementation rule that 

nonattainment areas must retain in 

implementing the 8-hour standard.

To the extent that a nonattainment 

area is currently designated with a 

lower classification under the more 

stringent 8-hour standard, it is because 

that area now has cleaner air than when 

it was designated under the 1-hour 

standard. This improvement 

demonstrates that the State has more 

effectively managed efforts to address its 

air quality problem than in the past. We 

believe Congress expressed an intent to 

allow States the flexibility to regulate 

economic growth in nonattainment 

areas consistent with efforts to address 

the severity of the area’s air quality 

problem. Accordingly, we are requiring 

States to implement a nonattainment 

major NSR program in accordance with 

its 8-hour nonattainment classification. 

We do not dispute that major NSR 

requires certain sources to apply control 

technologies to mitigate pollutant 

increases and that Congress intended 

this aspect of the program to advance 

pollution control technology over time. 

Moreover, requiring higher offset ratios 

could theoretically lead to emissions 

reductions in an area. Nonetheless, as 

we explained in our proposal, unlike 

‘‘control measures,’’ States are not 

relying on the application of these 

control technologies or offsets to 

advance the area toward attainment. 

There is also no guarantee that major 

NSR will reduce base year emissions, 

because it is uncertain whether any new 

emissions sources will be constructed 

and if offsets will be obtained from the 

same nonattainment area. See State of 

New York v. U.S. Environmental 

Protection Agency, l F.3d l, 2005 WL 

1489698 (DC Cir.) (C.A.D.C., 2005). 

(Recognizing that the purpose of 

emission offsets is to produce no 

increase in overall regional emissions.) 

We do not believe that the statutory 

framework, legislative history, or 

common sense require us to characterize 

a program that only applies when 

emissions increase in an area as an 

emissions reduction program 

irrespective of whether some control 

technologies or offset requirements are 

components of the program. Moreover, 

we agree that it is possible that higher 

offset ratios may discourage growth and 

actually result in fewer offset reductions 

than areas implementing a lower offset 

ratio, as one commenter stated.5 6

We disagree with the commenter who 

indicated that offset benefits are certain 

and that they must always come from 

the nonattainment area. The commenter 

provides no evidence to support this 

statement in light of the provisions of 

section 173(c) of the Act that allow 

sources to obtain offsets from other 

nonattainment areas. Under our final 

rule for implementing major NSR under 

the 8-hour standard, we retain the 

technology forcing aspect of the 

program by requiring certain sources to 

install control technologies, and we 

mandate an offset ratio commensurate 

with the severity of the area’s 

nonattainment problem. 

Even assuming arguendo that the term 

‘‘controls’’ in section 172(e) of the Act 

includes the major NSR program, the 

language in section 172(e) does not 

resolve which elements of major NSR 

we must require States to apply in a 

given nonattainment area. Section 

172(e) only requires that when EPA 

relaxes a NAAQS, it must promulgate 

regulations requiring the controls that 

are not less stringent than the controls 

applicable to areas designated 

nonattainment before such designation. 

While section 172(e) provides EPA with 

the authority to impose requirements for 

each nonattainment area after it changes 

a NAAQS standard that are not less 

stringent than the controls that existed 

prior to the NAAQS change, section 

172(e) does not mandate that EPA’s 

regulations require nonattainment areas 

to continue to comply with each and 

every requirement that applied under 

the previous standard. 

Accordingly, it is reasonable to 

interpret section 172(e) as requiring 

that, at a minimum, we regulate 

nonattainment areas under the new 

standard in a manner consistent with, 

and not less stringent than, the way 

similarly-designated nonattainment 

areas were regulated under the old 

standard. We satisfy this minimum 

standard by requiring areas to apply a 

nonattainment major NSR program 

consistent with the area’s 8-hour 

classification. That is, all nonattainment 

areas remain subject to the technology 

forcing requirements to impose LAER 

controls but areas need only impose the 

major source thresholds and offset ratios 

appropriate for the 8-hour classification. 

We concur with the commenter who 

indicates that it is also clear in the 

context of section 175A maintenance 

plans that we should not interpret major 

NSR as a ‘‘control measure.’’ In 

Greenbaum v. EPA, the Court held that 

our interpretation of the term ‘‘measure’’

in section 175A was reasonable, and 

that we appropriately considered the 

statutory structure in section 110 in 

determining that the term as used in 

section 175A did not include major 

NSR. Moreover, the Court found 

persuasive EPA’s argument that the very 

nature of the NSR permit program 

supports its interpretation that it is not 

intended to be a contingency pursuant 

to section 175A(d). The Court noted that 

contingency measures (like control 

measures) require immediate emissions 

reductions on emissions sources. In 

contrast the Court observed that ‘‘[t]he 

NSR program would have no immediate 

effect on emissions.’’ 370 F.3d at 537–

38. We believe that the structure and 

purpose of the Act similarly supports 

our view that major NSR requirements 

are not ‘‘controls’’ as that term is used 

in section 172(e). 

We disagree with commenters who 

argue that section 193 of the Act 

compels us to require nonattainment 

areas to retain the NSR requirements 

that apply based on their 1-hour 

classifications. We previously explained 

in section III.C.1 of this preamble that 

section 193 is not applicable since it 

applies to certain requirements that 

were in effect before 1990. In evaluating 

changes to State NSR SIPs, we have 

stated that section 193 of the Act does 

not clearly apply to revisions in the NSR 

programs, but we have nonetheless 

proceeded to analyze the change under 

an assumption that it may. (69 FR 

31056, 31063). Even proceeding on this 

assumption, we have relied on a 

holistic, qualitative assessment of all 

elements of the SIP to determine if a 

given action related to NSR complies 

with section 193 of the Act. We have 

found that no assessment can be made 

as to the number of sources affected by 

the revisions, and in some instances the 

number of sources regulated by major 

NSR in a State are so few that reducing 

the number of sources that might have 

to comply with the program in the 

future would result in an insignificant 

increase in emissions. (64 FR 29563, 

29564). Moreover, we have stated that 

although section 193 uses the phrase 

‘‘equivalent or greater emissions 

39420 Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 

reductions,’’ in the context of NSR, 

which does not produce emissions 

reductions, we evaluate SIP changes to 

see whether the program as a whole 

provides equivalent or greater 

mitigation of new source growth. (69 FR 

54006, 54012).

We note that the language used by 

Congress in section 193 of the Act is 

different from the language used in 

section 172(e) of the Act. Rather than 

use the term ‘‘controls’’ as found in 

section 172(e), Congress begins section 

193 by stating that, ‘‘[e]ach regulation, 

standard, rule, notice, order, and 

guidance promulgated or issued * * * 

shall remain in effect * * *’’ Congress 

goes on to require that ‘‘[no] control 

requirement in effect * * * may be 

modified * * * unless the modification 

insures equivalent or greater emissions 

reductions of such air pollutant.’’

Arguably, the language in section 193 is 

more-inclusive than section 172(e). On 

the other hand, the use of the phrase ‘‘in 

effect’’ in section 193 arguably 

encompasses only those permits 

currently issued and does not affect the 

ability of a State to change who would 

be required to obtain a permit in the 

future. 

Given the ambiguity in section 193 of 

the Act, we have chosen a conservative 

approach in our review of NSR SIP 

changes. Our past option to review 

changes for consistency with section 

193 is not conclusive of the scope of 

section 193. Moreover, it holds no 

precedential value in evaluating 

Congress’ purpose in using the different 

term ‘‘controls’’ in section 172(e). The 

Act, ‘‘is too complex a compromise, and 

has been amended too many times, to 

indulge the assumption that all of its 

words must be used consistently in all 

of its subsections.’’ Sierra Club v. EPA,

375 F.3d 537 (7th Cir. 2004). (Holding 

that the word ‘‘applicable’’ did not have 

the same meaning when used in 

different parts of the Act.) 

In sum, we do not believe that by its 

terms, section 172(e), which imposes 

requirements on EPA if it relaxes a 

NAAQS, applies to our final action. 

However, we view this provision as an 

expression of Congressional intent that 

States may not remove control measures 

in areas which are not attaining a 

NAAQS when EPA revises a standard to 

make it more stringent, and we rely on 

the principles of section 172(e) in 

crafting our anti-backsliding policy 

under the 8-hour standard. 

Moreover, we believe that Congress 

created the major NSR program as a 

measure to mitigate emissions growth 

rather than a measure to generate 

emissions reductions from existing 

sources to reduce the base year 

emissions inventory in a given 

nonattainment area. To the extent that 

subpart 2 requires higher offset ratios 

and lower major stationary source 

thresholds, Congress included these 

requirements not to specifically generate 

emissions reductions but to provide a 

buffer to compensate for under 

projections of growth in state planning. 

Even if Congress broadly intended major 

NSR to be included within section 

172(e), section 172(e) only requires that 

we impose the subpart 2 major NSR 

requirements on similarly-designated 

nonattainment areas and does not 

mandate that we retain each and every 

element of the NSR program under the 

1-hour standard in each and every 

previous nonattainment area, 

specifically those portions of the NSR 

program that do not impose control 

requirements. 

3. Will a State’s Removal of 1-Hour 

Major NSR Programs From Its SIP 

Interfere With Any Applicable 

Requirements of the Act Including 

Attainment and RFP? 

a. Comments 

Several commenters concurred with 

our finding that applying major NSR 

requirements based on an area’s 8-hour 

nonattainment classification will not 

interfere with RFP and attainment or 

any other applicable requirement of the 

Act. One commenter noted that section 

110(l) of the Act is not an antibacksliding provision, but merely a 

requirement to assure that a State 

continues to meet RFP and attainment 

despite changes in the SIP. Another 

commenter indicated that section 110(l) 

could not be interpreted to require a 

State to maintain requirements for a 

standard that we revoked. The 

commenter argues that such an 

interpretation of section 110(l) would 

act to freeze all State rules in the SIP 

regardless of whether they make 

economical sense or are necessary for 

air quality. Many commenters agreed 

that States do not rely on emissions 

reductions from major NSR within their 

attainment demonstrations. 

Nonetheless, one commenter noted that 

the fact that States do not include 

reductions from major NSR in its 

attainment demonstrations does not 

mean that major NSR is not an 

important tool for achieving attainment. 

Several commenters noted that States 

use a conservative approach to planning 

by not including reduction credits from 

NSR in its attainment demonstration or 

ROP plan.

Several commenters noted that our 

own policy indicates that section 110(l) 

requires a case-by-case, fact-specific 

review in each circumstance to 

determine whether the requirements are 

being met. One commenter indicated 

that EPA cannot evaluate the effect of 

major NSR changes on the SIP until it 

knows the full complement of control 

measures that States will use to reach 

attainment of the 8-hour standard. 

Another commenter argued that higher 

major source thresholds that will apply 

in nonattainment areas given a lower 

nonattainment designation under the 8-

hour standard will result in additional 

unmitigated emissions increases. The 

commenter asserts that by definition, 

the change will interfere with the ability 

of such areas to achieve attainment, and 

is inconsistent with section 110(l) of the 

Act. One commenter proposed that a 

State can only remove NSR 

requirements if the continued 

implementation of the program would 

interfere with progress or timely 

attainment, or if the State demonstrates 

that it is no longer feasible to implement 

the program. 

b. Response 

Many comments received on our 

proposal support our understanding of 

how States account for growth within 

attainment demonstrations. We address 

comments related to specific SIP 

demonstrations in section III.C.4. of 

today’s preamble. 

As explained in detail in our April 4, 

2004 proposal (70 FR 17023–17025), we 

conclude that States are not relying on 

major NSR to generate emissions 

reductions in the State’s attainment 

modeling. The growth projection 

methods used in preparing attainment 

demonstrations and the 8-hour major 

NSR program requirements will provide 

overlapping assurances that removing 

the 1-hour major NSR program from the 

SIP, will not interfere with RFP or 

attainment in any 8-hour nonattainment 

area. Basing an area’s major NSR 

program requirements on its 

classification under the 8-hour standard 

assures that emissions increases from 

major stationary sources are mitigated 

and provide an ample margin of safety 

against poor State planning in areas 

with more severe air quality problems. 

Accordingly, we find that removing 

major NSR program requirements from 

the SIP based on an area’s previous 

classification under the 1-hour standard 

will not violate section 110(l) of the Act. 

We disagree with commenters that 

our own policy requires a case-by-case, 

fact-specific review in each 

circumstance to determine whether the 

requirements of section 110(l) of the Act 

are met. Although we have generally 

conducted case-by-case reviews of SIP 

changes, we have not always required a 

detailed analysis for every element 

within the requested change. For 

Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 39421

7We are referring to South Coast Air Quality 

Management District. There are several other State 

and local agencies, including some in California, in 

which the classification under the 8-hour standard 

is lower than that under the 1-hour standard. We 

are not aware of any of these agencies relying on 

the major stationary source thresholds or the offset 

ratios under the 1-hour classification to assure RFP 

or attain the 1-hour standard.

example, when we approved revisions 

to the Illinois SIP, commenters objected 

to Illinois’ removal of lowest achievable 

emission rate (LAER) and offset 

requirements, and NOX (RACT) 

requirements as a relaxation of the SIP. 

Commenters based their objections on 

the fact that neither Illinois or the EPA 

conducted a modeling demonstration 

showing that these requirements were 

not needed for attainment. We 

concluded that modeling was not 

needed to show that these measures 

were not needed for attainment because 

Illinois did not rely on NOX (reasonably 

available control technology) RACT to 

attain the ozone standard, and all 

sources already implementing major 

NSR requirements were required to 

retain these controls. (68 FR 25458–9). 

Where the record supports generalized 

determinations on compliance with 

section 110(l), we conclude that it is 

appropriate for us to make them. 

Moreover, our actions today are 

consistent with the guidance we issued 

for approving State SIP changes to 

remove the dual source definition from 

State SIPs. In 1981, we revised the major 

NSR regulations to allow a State to 

adopt a plantwide definition of 

stationary source in its nonattainment 

NSR program. (46 FR 50766). 

Previously, our regulations required a 

dual definition of stationary source 

(including both the entire plant and 

individual emissions units). We 

predicted that use of a plantwide 

definition would bring fewer plant 

modifications into the nonattainment 

permitting process, but emphasized that 

this change would not interfere with 

RFP and timely attainment because 

States remained under an independent 

obligation to demonstrate attainment 

and maintenance of the NAAQS. (46 FR 

50767).

We determined that our action was 

consistent with Congress’ intent that 

States are to play the primary role in 

pollution control and Congress’ desire 

that States retain the maximum possible 

flexibility to balance environmental and 

economic concerns in designing plans 

to clean up nonattainment areas. 

Although section 110(l) was added to 

the Act in 1990, prior to that date EPA 

required States, pursuant to section 

110(a)(3)(A), to demonstrate that 

revisions to an implementation plan 

would not interfere with the ability of 

an area to attain the NAAQS. See 

Navistar Int’l Transp. Corp. v. EPA, 941 

F.2d 1339, 1342 (6th Cir. 1991). When 

we revised our regulations to allow 

States to adopt the plantwide definition 

of stationary source, we determined that 

States that adopt the less inclusive 

stationary source definition, would have 

to demonstrate that their plans continue 

to demonstrate RFP and attainment only 

if the State relied on emissions 

reductions that it projected would result 

from the dual source definition in its 

attainment planning. (46 FR 50767; 

Memorandum from J. Craig Potter, 

Assistant Administrator for Air and 

Radiation to Director, Air Management 

Division Regions I, III, V and IX, et al., 

‘‘Plantwide Definition of Major 

Stationary Sources of Air Pollution,’’

February 27, 1987). 

Today, we have determined that with 

the exception of one jurisdiction,7

discussed below, no State or local entity 

has accounted in the past for any 

emissions reductions relating to the 

higher offset ratios and lower major 

source thresholds under the NSR 

program within their attainment 

demonstrations. Accordingly, consistent 

with our policy for demonstrating RFP 

and attainment established in 1981, no 

State need submit an individual 

demonstration to satisfy the 

requirements of section 110(l) related to 

RFP and attainment.

We also disagree that EPA cannot 

know whether removing the 1-hour 

major NSR program from SIPs will be a 

relaxation until we know the full 

complement of control measures that 

each State will use to reach attainment 

of the 8-hour standard. We believe that 

a major NSR program based on the 8-

hour classifications will provide a 

sufficient margin of safety to address 

major source growth in nonattainment 

areas, because it will ensure that any 

growth in major stationary source 

emissions will be offset in at least a one 

to one ratio. Moreover, States have other 

mechanisms to control growth of 

sources not subject to major NSR 

through minor NSR programs. Further, 

under our interpretation of section 

110(l), areas need not wait for 

development of full attainment 

demonstrations to make SIP changes, 

provided they can demonstrate no 

increase in emissions or impediment to 

achieving NAAQS. Since major NSR at 

the levels required by the 8-hour 

classifications will still provide at least 

1 for 1 offsets, such major NSR programs 

will not increase emissions or result in 

an impediment to achieving NAAQS, 

and thus will satisfy section 110(l) until 

States submit a full attainment 

demonstration. 

Notwithstanding the ability of the 8-

hour nonattainment major NSR program 

to ensure that new emissions do not 

interfere with RFP or attainment, States 

have every incentive to include 

adequate control measures in a SIP to 

move an area as expeditiously as 

practicable to attainment. If a State 

predicts that growth will interfere with 

the ability of existing control measures 

to bring the area into attainment, it 

would need to impose additional 

measures to mitigate growth. If the State 

fails to plan adequately, ‘‘and as a result 

slips out of compliance as its population 

or industry changes, then it must pay a 

steep price for backsliding. It is sensible 

for the Federal agency to give localities 

that must pay the piper some 

opportunity to call the tune.’’ See Sierra 

Club, 357 F.3d at 540. 

We also disagree that any changes to 

the major NSR program may result in 

unmitigated emissions increases, and 

that by definition, the change interferes 

with the area’s ability to achieve 

attainment, and is inconsistent with 

section 110(l). First, no unmitigated 

growth should occur in any 

nonattainment area. Every State must 

develop an attainment demonstration 

that accounts for growth within its 

attainment plan. Accordingly, States 

would need to mitigate all growth 

projected within the attainment plan 

through control measures within the SIP 

to develop an approvable attainment 

plan. The major NSR program provides 

an extra measure of benefit on top of the 

control measures already contained in 

the SIP to address any further 

unanticipated future growth. 

Moreover, we disagree with the 

assumption of some commenters that 

any change in a SIP requirement is 

necessarily subject to review under 

section 110(l) of the Act. The Supreme 

Court upheld our plantwide stationary 

source definition as a reasonable 

balance between reducing air pollution 

and economic growth even though this 

change allowed fewer sources to go 

through major NSR permitting. See 

Chevron, 467 U.S. at 866. The Act 

allows us to approve SIP revisions if the 

State shows that the revision does not 

interfere with any requirement 

concerning attainment and RFP. We 

conclude that this will be the case in all 

areas removing 1-hour NSR programs as 

8-hour NSR will still be required and 

thus no emissions increases will result.

We also disagree with the commenter 

who indicates that revisions under 

section 110(l) of the Act may not be 

approved unless a State shows that 

maintaining the requirement would 

39422 Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 

8 In our review of Pennsylvania’s ROP plans we 

determined that some of the shutdowns used by 

Pennsylvania in their plans were not discounted as 

the Pennsylvania Department of Environmental 

Protection (DEP) stated in its May 4, 2005 comment 

letter because the sources did not register the 

emissions reduction credits (ERCs) as required by 

25 Pa. Code subchapter E. Instead of using 23% of 

the shutdowns registered as ERCs in the ROP plan, 

the PA Department of Environmental Protection 

(DEP) used 100% of the past unregistered shutdown 

reductions to meet the ROP requirements.

9See 40 CFR part 51.165(a)(ii)(C) as of October 

26, 2001. We reiterated this requirement in our 

October 26, 2001 final rule (66 FR at 54148) 

approving Pennsylvania’s ROP plan and attainment 

demonstration. We also identified this issue in the 

preambles to pertinent proposed and final 

rulemaking notices on the PA NSR SIP. (62 FR 

25060, 62 FR 64722).

10Although these guidance documents indicate 

that offsets after 1990 could be used in a milestone 

compliance demonstration, no State has actually 

submitted a milestone compliance demonstration 

including these offsets.

interfere with progress toward 

attainment or that the requirement is not 

feasible. We do not believe that such an 

overly restrictive interpretation of 

section 110(l) is consistent with 

Congress’ intent that States retain 

flexibility in carrying out their 

responsibilities for pollution control. 

We conclude that the words of section 

110(l) simply do not provide for such a 

strict interpretation. 

4. Has Any Individual State or Local 

Agency Relied on Major NSR as a 

‘‘Control Measure’’ To Reduce Overall 

Base Year Emissions in a Rate of 

Progress Plan or Attainment 

Demonstration? 

a. Comment and Response—A 

Comment. One commenter argued 

that our assumption that ‘‘(S)tates do 

not rely on Major NSR to achieve 

emissions reductions and reach 

attainment,’’ is erroneous. According to 

the commenter, the South Coast Air 

Quality Management District’s 

(SCAQMD’s) NSR program was an 

important element of its attainment 

demonstration. Their 1989 Air Quality 

Management Plan (AQMP) contained 

Control Measure F–8, which, as adopted 

in final form in 1990 was estimated to 

result in emissions reductions of 44 tons 

per day (TPD) of ROG, 33 TPD of NOx, 

4 TPD of SOx, 21 TPD of CO, and 29 

TPD of PM10. The commenter argued 

that while the NSR program no longer 

appears as a control strategy in 

SCAQD’s latest AQMP because the rule 

has been adopted, the reductions from 

this measure are contained in the 

current SIP revision in the baseline and 

are still being relied upon to 

demonstrate attainment. According to 

the commenter, they do not understand 

how any area could not rely on NSR as 

part of its attainment demonstration, at 

least by including NSR reductions in the 

baseline. 

Response. We agree that emissions 

from sources already subject to major 

NSR permits are part of the States’

baseline emissions. For this reason, our 

final rule requires all States to maintain 

requirements imposed on major sources 

through permits they issued under the 

1-hour major NSR program before June 

15, 2005. However, the comment does 

not indicate that any areas rely on 

further reductions from 1-hour major 

NSR programs to make further progress 

toward attainment. 

b. Comment and Response—B 

Comment. One commenter stated that 

we concede that the SCAQMD does 

assume a LAER level of control in 

projecting emissions. (70 FR 17024). 

They contend, however, that we fail to 

explain why the District’s SIP-approved 

NSR rule would not be relaxed if we 

must automatically approve a SIP 

revision that would result in a 

relaxation of SCAQMD’s requirements. 

Response. The SCAQMD’s major NSR 

program contains many requirements 

that are beyond the Federal minimum 

requirements for either the 1-hour or 8-

hour standard. In light of this, there is 

no reason to believe that SCAQMD 

would make revisions to its major NSR 

program even given the opportunity 

provided under today’s final action. 

c. Comment and Response—C

Comment. One commenter contended 

that on March 2, 1995, we issued a 

policy establishing an alternative 

attainment process whereby States 

could commit to a two-phase approach 

for meeting CAA statutory requirements. 

The Phase I requirements include 

adoption of specific control strategies 

necessary to meet the post 1996 ROP 

plan through 1999. The Phase II 

requirements include participation in a 

two-year regional consultative process 

with other States in the eastern U.S. and 

with EPA to identify and commit to 

additional emissions reductions 

necessary to attain health-based ozone 

standards by the CAA deadlines. The 

commenter stated that under this policy 

Pennsylvania (PA) submitted the Phase 

I portion which includes a 1999 24 

percent reduction milestone. In 

addition, Pennsylvania identified its 

NSR program as a ‘‘control measure’’

put in place to reduce emissions 

through their offset requirements and 

through the installation of LAER control 

equipments. On October 26, 2001, the 

commenter asserted that the EPA 

approved these plans as meeting the 

requirements of section 182(c)(2) and (d) 

of the Act, 42 U.S.C. section 7511a(c)(2) 

and (d). (66 FR 54143). 

Response. We reviewed the 

information related to Pennsylvania’s 

ROP plans. The reductions the 

commenter claims are related to 

Pennsylvania’s major NSR program 

originated from retrospective, source/

process shutdowns which occurred after 

January 1, 1991 but before the ROP 

milestone date and before the date the 

ROP plan was prepared.8 Importantly, 

before we approved Pennsylvania’s ROP 

these shutdowns were not available as 

offsets.9 Moreover, the emissions 

reductions were not necessarily 

generated to meet any need to create an 

offset because a new source was being 

constructed. Pennsylvania requires 

sources to register ERCs for future use 

as offsets or for contemporaneous 

netting. Although, Pennsylvania claims 

that its regulations limit any source in 

the Philadelphia area to using only 77% 

of each ERC that is registered (banked) 

in a timely manner, we are unable to 

identify such a requirement within 

Pennsylvania’s major NSR regulations. 

See 25 Pa. Code Chapter 127, 

Subchapter E. Nonetheless, it appears 

that Pennsylvania’s ROP plan may 

confiscate a portion of the emissions 

reduction credits contained in the bank 

and prevent their future use as offsets. 

However, our guidance for ROP plans 

does not allow credit for prospective 

reductions from offsets due to the 

inherent uncertainty in projecting new 

source growth, and in determining the 

amount of the emissions reductions 

from offsets that will be needed to offset 

minor source growth. See section 2.2 

Emissions Offsets of ‘‘Guidance on the 

Relationship Between the 15 Percent 

Rate-of-Progress Plans and Other 

Provisions of the Clean Air Act,’’ (EPA–

452/R–93–007), May 1993 and 

‘‘Guidance on the Post ’96 Rate-ofProgress Plan (RPP) and Attainment 

Demonstration’’ (EPA–452/R–93–015) 

Corrected version of February 18, 

1994.10

In the proposed rulemaking notice to 

approve Pennsylvania’s ROP plan, we 

identified this measure as 

‘‘Shutdowns.’’ (66 FR 44570). We did 

not relate these shutdowns to offsets, 

LAER requirements, or any other 

requirement in Pennsylvania’s major 

NSR program. Likewise, in the final 

rulemaking notice approving the 

attainment demonstration and ROP 

plans for the Philadelphia area we again 

identified this measure as 

‘‘Shutdowns.’’ (66 FR 54146). We 

discussed the status of Pennsylvania’s 

NSR regulation for the Philadelphia 

area, but only in context of the issue 

concerning the relationship between the 

use of shutdowns as offsets only after 

Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 39423

11See EPA docket entry number OAR–2001–

0004–0817, Memorandum from Richard Burkhart, 

Environmental Scientist, U.S. EPA to David Conroy, 

Manager Air Quality Planning Unit, ‘‘Additional 

Information regarding the Approval of the New 

Hampshire One-Hour Ozone Attainment 

Demonstration,’’ (June 10, 2005).

we approve the attainment 

demonstration. (66 FR 54148).

Likewise, the Pennsylvania DEP did 

not identify NSR as a ‘‘control measure’’

in its Phase II plan. Instead it identified 

the measures as ‘‘shutdowns.’’ Tables 4a 

and 4b to ‘‘State Implementation Plan 

(SIP) Revision for the Philadelphia 

Interstate Ozone Nonattainment Area, 

Meeting the Requirements of the 

Alternative Ozone Attainment 

Demonstration Policy, Phase II,’’ dated 

April 1998. (This was submitted with an 

April 30, 1998 letter from James Seif, 

Secretary, Pennsylvania Department of 

Environmental Protection, to Judy Katz, 

Director, Air, Radiation, and Toxics 

Division, EPA Region III.) 

Based on this information, we 

conclude that Pennsylvania did not rely 

on major NSR offsets or LAER 

requirements to generate emissions 

reductions for Pennsylvania’s ROP plan, 

but instead confiscated shutdown ERC 

credits (some of which were never 

creditable as offsets, and others which 

may have been creditable as offsets) and 

prevented such credits from being used 

as offsets. If Pennsylvania disagrees 

with our conclusions and continues to 

believe the State relies on higher offsets 

ratios and lower major stationary source 

requirements to achieve attainment, 

then Pennsylvania should include these 

requirements in its nonattainment major 

NSR program for the 8-hour standard. 

Further, Pennsylvania is free to retain 1-

hour NSR offset ratios and major source 

sizes should it choose to do so as part 

of its 8-hour SIP. 

d. Comment and Response—D 

Comment. One commenter raised 

concerns regarding several areas (i.e., 

Houston-Galveston-Brazoria area, 

Chicago-Gary Lake County area) where 

the commenter asserted that relaxation 

in affected areas would result in 

emissions increases, whereby any SIP 

revision would interfere with timely 

progress and timely attainment. The 

commenter asserted that the risk of 

increased emissions in such areas is 

compounded by the allowance of totally 

new facilities being able to locate and 

emit increased pollution in these and 

other nonattainment areas without 

obtaining offsets and without installing 

LAER as would have been required 

under their 1-hour classifications. The 

commenter provided data on the 

number of sources in the area who 

could potentially increase emissions 

without undergoing major NSR review. 

Another commenter reported that the 

way in which the EPA has chosen to 

implement the 8-hour ozone NAAQS 

will interfere with Delaware’s ability to 

solve their air quality problems related 

to construction and modification of 

major stationary sources and will result 

in backsliding. The commenter asserted 

that relaxation of emissions control and 

offset requirements will inhibit 

Delaware’s attempts to control 

emissions, because more sources will be 

exempt from compliance with 

regulatory requirements. 

Response. The commenter provided 

no specific information indicating how 

these areas rely on major NSR for 

attainment purposes or how changes to 

the major NSR requirements will 

interfere with the areas’ ability to reach 

attainment. Although the commenter 

supplied data on the number of sources 

which could potentially increase 

emissions, the commenter did not 

correlate this information with an 

estimate of the number of these sources 

that are likely to undertake 

modifications. Moreover, States remain 

under an independent statutory 

requirement to assure that emissions 

from the construction and modification 

of stationary sources do not interfere 

with attaining or maintaining the 

NAAQS. The EPA continues to believe 

that areas will be able to demonstrate 

timely attainment through controls on 

existing sources in conjunction with 

appropriate 8-hour NSR on new major 

sources.

e. Comment and Response—E 

Comment. One commenter stated we 

cited NSR among the ‘‘control 

measures’’ that provide reductions 

toward attainment and that New 

Hampshire relied on in the modeled 1-

hour attainment demonstration for 

ozone. (67 FR 64582, 64586). 

Response. We reviewed the cited 

Federal Register notice. References to 

NSR appear in two tables within Section 

A. ‘‘CAA Measures and Measures Relied 

on in the Modeled Attainment 

Demonstration SIP.’’ The tables are 

entitled ‘‘CAA Requirements for Serious 

Areas’’ and ‘‘Control Measures in the 

One-Hour Ozone Attainment Plan for 

the New Hampshire Portion of the 

Boston-Lawrence-Worcester, MA–NH 

Serious Ozone Nonattainment Area.’’

We listed NSR in these tables to 

illustrate that New Hampshire had an 

approved NSR SIP as required by the 

Act. However, the attainment modeling 

that was performed to support the New 

Hampshire attainment demonstration 

did not account for any emissions 

reductions from NSR. Accordingly, we 

conclude that New Hampshire did not 

rely on any reductions from NSR to 

reach attainment.11

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735), the Agency must determine 

whether the 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. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this final action is not a ‘‘significant 

regulatory action’’ within the meaning 

of the Executive Order. Today’s 

reconsideration notice merely proposes 

to retain the position we adopted in the 

final Phase I rule. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. This rule 

only interprets the requirements to 

develop State or tribal implementation 

plans to satisfy the statutory 

requirements for major NSR. This action 

will not impose any new paperwork 

requirements. However, OMB 

previously approved the information 

collection requirements contained in the 

existing regulations (40 CFR parts 51 

and 52) under the provisions of the 

Paperwork Reduction Act. A copy of the 

OMB-approved Information Collection 

Request (ICR) may be obtained from 

Susan Auby, Collection Strategies 

Division, U.S. Environmental Protection 

Agency (2822T), 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, or by 

calling (202) 566–1672. Please refer to 

39424 Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 

OMB control number 2060–0003, EPA 

ICR number 1230.17 when making your 

request. 

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 

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. An agency 

may not conduct or sponsor, and a 

person is not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. The OMB control numbers for 

EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to prepare an RFA of any rule subject to 

notice and comment rulemaking 

requirements under the Administrative 

Procedures Act or any other statute 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Small entities include small 

businesses, small organizations, and 

small governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s final action on small entities, 

small entity is defined as: (1) A small 

business that is a small industrial entity 

as defined in the U.S. Small Business 

Administration (SBA) size standards 

(See 13 CFR 121.201); (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; or (3) a 

small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final action on 

reconsideration on small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This final action on reconsideration will 

not impose any requirements on small 

entities. This reconsideration notice 

reaffirms our April 4, 2005 rule and the 

statutory obligations for States and 

Tribes to implement the major NSR 

program for the 8-hour ozone NAAQS.

D. 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, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any 1 year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most cost 

effective or least burdensome alternative 

that achieves the objectives of the rule. 

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 as to why that 

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 

the regulatory requirements. 

In promulgating the Phase I Rule, we 

determined that this final action on 

reconsideration does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and Tribal governments, 

in the aggregate, or the private sector in 

any 1 year. Therefore, we concluded 

that the Phase I Rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. For the same reasons we 

stated when we promulgated the Phase 

I Rule, we conclude that the issues 

addressed in this final action on 

reconsideration are not subject to the 

UMRA. The EPA also determined that 

this final action contains no regulatory 

requirements that might significantly or 

uniquely affect small governments, 

including tribal governments. 

E. Executive Order 13132—Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255), requires 

EPA 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’’ is 

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 final 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. The 

action specifies the statutory obligations 

of States and Tribes in implementing 

the major NSR program in 8-hour ozone 

nonattainment areas. The Act 

establishes the scheme whereby States 

take the lead in developing plans for 

EPA to approve into the State plan for 

implementing the major NSR program. 

This final action would not modify the 

relationship of the States and EPA for 

purposes of developing programs to 

implement major NSR. Thus, Executive 

Order 13132 does not apply to this 

action. Nonetheless, in the spirit of 

Executive Order 13132, and consistent 

with EPA policy to promote 

communications between EPA and State 

and local governments, we specifically 

solicited comment on aspects of the 

final rule being reconsidered from State 

and local officials. We received 6 

comment letters from State and local 

district representatives and 1 comment 

letter from the Baton Rouge Chamber of 

Commerce. Section III.C. of this 

preamble presents a summary of their 

significant comments and our response 

to them.

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), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 39425

regulatory policies that have tribal 

implications.’’ This final action on 

reconsideration does not have ‘‘tribal 

implications,’’ as specified in Executive 

Order 13175. 

The purpose of this final action on 

reconsideration is to present EPA’s 

conclusions based on the 

reconsideration process which allowed 

for public testimony and comment on 

the reconsidered aspects of the Phase I 

8-hour ozone rule. The tribal authority 

rule (TAR) gives Tribes the opportunity 

to develop and implement Act programs 

such as the major NSR program, but it 

leaves to the discretion of the Tribe 

whether to develop these programs and 

which programs, or appropriate 

elements of a program, they will adopt. 

For the same reasons that we stated in 

the Phase I Rule, we conclude that this 

final action does not have Tribal 

implications as defined by Executive 

Order 13175. To date, no Tribe has 

chosen to implement a major NSR 

program. Moreover, this final action 

does not affect the relationship or 

distribution of power and 

responsibilities between the Federal 

government and Indian Tribes. Thus, 

Executive Order 13175 does not apply 

to this action. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885) 

applies to any rule that: (1) Is 

determined to be ‘‘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, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. This final 

action relates to reconsideration of one 

aspect of the Phase I Rule to implement 

the 8-hour ozone NAAQS. For the same 

reasons stated with respect to the Phase 

I Rule, we do not believe the Rule, or 

this final action on reconsideration, is 

subject to Executive Order 13045. The 

Phase I Rule implements a previouslypromulgated health-based Federal 

standard, the 8-hour ozone NAAQS. 

Nonetheless, we have evaluated the 

environmental health or safety effects of 

the 8-hour ozone NAAQS on children. 

The results of this evaluation are 

contained in 40 CFR Part 50, National 

Ambient Air Quality Standards for 

Ozone, Final Rule (62 FR 38855–38896; 

specifically, 62 FR 38855, 62 FR 38860 

and 62 FR 38865). 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This final action on reconsideration is 

not a ‘‘significant energy action’’ as 

defined in Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355) 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. 

Information on the methodology and 

data regarding the assessment of 

potential energy impacts in 

implementing programs under the 8-

hour ozone NAAQS is found in Chapter 

6 of U.S. EPA 2003, Cost, Emission 

Reduction, Energy, and Economic 

Impact Assessment of the Proposed Rule 

Establishing the Implementation 

Framework for the 8-hour, 0.08 ppm 

Ozone National Ambient Air Quality 

Standard, prepared by the Innovative 

Strategies and Economics Group, Office 

of Air Quality Planning and Standards, 

Research Triangle Park, N.C. April 24, 

2003.

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, 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. Voluntary consensus 

standards are technical standards (for 

example, 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 action 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 12898 requires that 

each Federal agency make achieving 

environmental justice part of its mission 

by identifying and addressing, as 

appropriate, disproportionate high and 

adverse human health or environmental 

effects of its programs, policies, and 

activities on minorities and low-income 

populations. The EPA concluded that 

the Phase I Rule should not raise any 

environmental justice issues; for the 

same reasons, the issues raised in this 

reconsideration notice should not raise 

any environmental justice issues. The 

health and environmental risks 

associated with ozone were considered 

in the establishment of the 8-hour, 0.08 

ppm ozone NAAQS. The level is 

designed to be protective with an 

adequate margin of safety. The final 

reconsidered action provides a 

framework for improving environmental 

quality and reducing health risks for 

areas that may be designated 

nonattainment. 

K. Congressional Review Act 

The Congressional Review Act, 

section 5 U.S.C. 801, et seq., as added 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. The EPA will submit a 

report containing this final action on 

reconsideration and other required 

information to the United States Senate, 

the United States House of 

Representatives, and the Comptroller 

General for the United States prior to 

publication of the final action in the 

Federal Register. A major rule cannot 

take effect until 60 days after it is 

published in the Federal Register. This 

action is not a ‘‘major rule’’ as defined 

by 5 U.S. C. 804(2). Therefore, this 

action will be effective August 8, 2005. 

V. Statutory Authority 

The statutory authority for this action 

is provided by sections 307(d)(7)(B), 

101, 111, 114, 116, and 301 of the Act 

as amended (42 U.S.C. 7401, 7411, 7414, 

7416, and 7601). This notice is also 

subject to section 307(d) of the Act (42 

U.S.C. 7407(d)). 

VI. Judicial Review 

Under section 307(b)(1) of the Act, the 

opportunity to file a petition for judicial 

review of the April 30, 2004 final rule 

has passed. Judicial review of today’s 

final action is available only by the 

filing of a petition for review in the U.S. 

Court of Appeals for the District of 

Columbia Circuit by September 6, 2005. 

Filing a petition for review by the 

Administrator of this final action does 

not affect the finality of this rule for the 

39426 Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules and Regulations 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. Any such judicial 

review is limited to only those 

objections that are raised with 

reasonable specificity in timely 

comments. This action may not be 

challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2).

List of Subjects in 40 CFR Part 51 

Administrative practice and 

procedure, Air pollution control, 

Environmental protection, 

Intergovernmental relations, NAAQS, 

Nitrogen oxides, Ozone, SIP, Volatile 

organic compounds.

Dated: June 30, 2005. 

Stephen L. Johnson, 

Administrator.

[FR Doc. 05–13483 Filed 7–7–05; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[AZ–NESHAPS–131a; FRL–7935–2] 

Delegation of National Emission 

Standards for Hazardous Air Pollutants 

for Source Categories; State of 

Arizona; Pima County Department of 

Environmental Quality; State of 

Nevada; Nevada Division of 

Environmental Protection

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is amending certain 

regulations to reflect the current 

delegation status of national emission 

standards for hazardous air pollutants 

(NESHAPs) in Arizona and Nevada. 

Several NESHAPs were delegated to the 

Pima County Department of 

Environmental Quality on December 28, 

2004, and to the Nevada Division of 

Environmental Protection on April 15, 

2005. The purpose of this action is to 

update the listing in the Code of Federal 

Regulations.

DATES: This rule is effective on 

September 6, 2005 without further 

notice, unless EPA receives adverse 

comments by August 8, 2005. If we 

receive such comments, we will publish 

a timely withdrawal in the Federal 

Register to notify the public that this 

direct final rule will not take effect.

ADDRESSES: Send comments to Andrew 

Steckel, Rulemaking Office Chief (AIR–

4), U.S. Environmental Protection 

Agency, Region IX, 75 Hawthorne 

Street, San Francisco, CA 94105–3901, 

or e-mail to steckel.andrew@epa.gov, or 

submit comments at http://

www.regulations.gov. Copies of the 

request for delegation and other 

supporting documentation are available 

for public inspection at EPA’s Region IX 

office during normal business hours by 

appointment.

FOR FURTHER INFORMATION CONTACT: Mae 

Wang, EPA Region IX, (415) 947–4124, 

wang.mae@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA. 

I. Background 

A. Delegation of NESHAPs 

Section 112(l) of the Clean Air Act, as 

amended in 1990 (CAA), authorizes 

EPA to delegate to State or local air 

pollution control agencies the authority 

to implement and enforce the standards 

set out in the Code of Federal 

Regulations, Title 40 (40 CFR), Part 63, 

National Emission Standards for 

Hazardous Air Pollutants for Source 

Categories. On November 26, 1993, EPA 

promulgated regulations, codified at 40 

CFR part 63, subpart E (hereinafter 

referred to as ‘‘Subpart E’’), establishing 

procedures for EPA’s approval of State 

rules or programs under section 112(l) 

(see 58 FR 62262). Subpart E was later 

amended on September 14, 2000 (see 65 

FR 55810). 

Any request for approval under CAA 

section 112(l) must meet the approval 

criteria in 112(l)(5) and subpart E. To 

streamline the approval process for 

future applications, a State or local 

agency may submit a one-time 

demonstration that it has adequate 

authorities and resources to implement 

and enforce any CAA section 112 

standards. If such demonstration is 

approved, then the State or local agency 

would no longer need to resubmit a 

demonstration of these same authorities 

and resources for every subsequent 

request for delegation of CAA section 

112 standards. However, EPA maintains 

the authority to withdraw its approval if 

the State does not adequately 

implement or enforce an approved rule 

or program. 

B. PDEQ Delegations 

On October 30, 1996, EPA approved 

the Pima County Department of 

Environmental Quality’s (PDEQ’s) 

program for accepting delegation of 

CAA section 112 standards that are 

unchanged from Federal standards as 

promulgated (see 61 FR 55910). 

Additional revisions to that program 

were approved on September 23, 1998 

(see 63 FR 50769). On June 28, 1999, 

EPA published a direct final action 

delegating to PDEQ several NESHAPs 

(see 64 FR 34560). That action 

explained the procedure for EPA to 

grant future delegations to PDEQ by 

letter, with periodic Federal Register

listings of standards that have been 

delegated. On November 8, 2004, PDEQ 

requested delegation of the following 

NESHAPs contained in 40 CFR part 63:

• Subpart S—NESHAP from the Pulp and 

Paper Industry 

• Subpart U—National Emission Standards 

for Hazardous Air Pollutant Emissions: 

Group I Polymers and Resins 

• Subpart AA—NESHAP from Phosphoric 

Acid Manufacturing Plants 

• Subpart BB—NESHAP from Phosphate 

Fertilizers Production Plants 

• Subpart DD—NESHAP from Off-Site Waste 

and Recovery Operations 

• Subpart HH—NESHAP from Oil and 

Natural Gas Production Facilities 

• Subpart LL—NESHAP for Primary 

Aluminum Reduction Plants 

• Subpart OO—National Emission Standards 

for Tanks—Level 1 

• Subpart PP—National Emission Standards 

for Containers 

• Subpart QQ—National Emission Standards 

for Surface Impoundments 

• Subpart RR—National Emission Standards 

for Individual Drain Systems 

• Subpart SS—National Emission Standards 

for Closed Vent Systems, Control Devices, 

Recovery Devices and Routing to a Fuel 

Gas System or a Process 

• Subpart TT—National Emission Standards 

for Equipment Leaks—Control Level 1 

• Subpart UU—National Emission Standards 

for Equipment Leaks—Control Level 2 

Standards

• Subpart VV—National Emission Standards 

for Oil-Water Separators and OrganicWater Separators 

• Subpart WW—National Emission 

Standards for Storage Vessels (Tanks)—

Control Level 2 

• Subpart YY—NESHAP for Source 

Categories: Generic MACT Standards 

• Subpart CCC—NESHAP for Steel 

Pickling—HCl Process Facilities and 

Hydrochloric Acid Regeneration Plants 

• Subpart DDD—NESHAP for Mineral Wool 

Production 

• Subpart EEE—NESHAP from Hazardous 

Waste Combustors 

• Subpart GGG—National Emission 

Standards for Pharmaceuticals Production 

• Subpart HHH—NESHAP from Natural Gas 

Transmission and Storage Facilities 

• Subpart III—NESHAP for Flexible 

Polyurethane Foam Production 

• Subpart JJJ—National Emission Standards 

for Hazardous Air Pollutant Emissions: 

Group IV Polymers and Resins 

• Subpart LLL—NESHAP from the Portland 

Cement Manufacturing Industry 

• Subpart MMM—NESHAP for Pesticide 

Active Ingredient Production 

• Subpart NNN—NESHAP for Wool 

Fiberglass Manufacturing