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- 1 CHAPTER 9 : STATUTORY AND EXECUT IVE ORDER IMPACT ANA LYSIS

Overview This section explains the statutory and executive orders applicable to EPA rules, and discusses EPA’s actions taken pursuant to these orders.

9.1 National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104

- 113, §12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so wou ld be inconsistent with applicable law or otherwise impractical. V oluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary co nsensus standards bodies. The NTTAA
directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

Today’s proposed rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

9.2 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. There are no information collection requirements directly associated with the establishment of a NAAQS under section 109 of the
CAA.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or p ro vide information to or for a f ederal 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
maintaini ng 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 a nd review the collection of information; and transmit or otherwise disclose the information.***E.O. 12866 Review

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- 2 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 numb er. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9

. Per the Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements
, t he annual burden for this informatio n collection averaged over the first 3 years is estimated to be a total of 40,000 labor hours per year at an annual labor cost of $2.4 million (present value) over the 3

- year period or approximately $91,000 per state for the 26 state respondents, including the District of Columbia. The average annual reporting burden is 690 hours per response, with approximately 2 responses per state for 58 state respondents. There are no capital or operating and maintenance costs associated with the proposed rule requireme nts. Burden is defined at 5 CFR 1320.3(b).

9.3 Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unde r the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today’s proposed rule on small entities, small entity is defined as: (1) a small business that is a small industrial entity as defined by the Small Business Administration’s (SBA) regul ations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not

- for

- profit enterprise
whi ch is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of

sm all entities. This proposed rule will not impose any requirements on small entities. Rather, this
rule establishes national standards for allowable concentrations of ozone in ambient air as required by section 109 of the CAA. See also American Trucking As sociations v. EPA . 175 F.***E.O. 12866 Review

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- 3 3d at 1044

- 45 (NAAQS do not have significant impacts upon small entities because NAAQS themselves impose no regulations upon small entities). We continue to be interested in the potential impacts of the proposed rule on small enti ties and welcome comments on issues related to such impacts

.

9.4 Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104

- 4 , establishes requirements for f ederal agencies to assess the effects of their regula tory actions on

s tate, local, and t ribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost

- benefit analysis, for proposed and final rules with “f

ederal mandates” that may result in exp enditures to state, local, and t ribal 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 the EPA to identify and consider a reasonable number of regulatory alternatives and to 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
inc onsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least costly, most cost

- effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.
Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, incl uding t ribal 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 the EPA regulat ory proposals with significant f ederal
inter governmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today’s proposed rule contains no f ederal mandates (under the regulatory provision s of Title II of the UMRA) for state, local, or t ribal gov ernments or the private sector. The proposed rule imposes no new expendit ure or enforceable duty on any state, local or t ribal governments or the private sector, and the EPA has determined that this proposed rule contains no regulatory require ments that might significantly or uniquely affect small governments. Furthermore, as***E.O. 12866 Review

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- 4 indicated previously, in setting a NAAQS the EPA cannot consider the economic or technological feasibility of attaining ambient air quality standards, although such factor s may be
considered to a degree in the development of s tate plans to implement the standards. See also American Trucking Associations v. EPA , 175 F. 3d at 1043 (noting that because the EPA is precluded from considering costs of implementation in establishi ng NAAQS, preparation of a Regulatory Impact Analysis (RIA) pursuant to the Unfunded Mandates Reform Act would not furnish any information which the court could consider in reviewing the NAAQS). Accordingly,
the EPA has determined that the provisions of se ctions 202, 203, and 205 of the UMRA do not apply to this proposed decision. The EPA acknowledges, however, that any corresponding revisions to associated SIP requirements and air quality surveillance requirements, 40 CFR part 51 and 40 CFR part 58, respec tively, might result in such effects. Accordingly, EPA will address, as appropriate, unfunded mandates if and when it proposes any revisions to 40 CFR parts 51 or
58.

9. 5 Executive Order 12866: Regulatory Planning and Review
Under section 3(f)( 1) of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
the ozone NAAQS action is an “economically significant regulatory action” because it is likely to have an annual effect on the economy of $100 million or more. Accordingly, the EPA
submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. In addition, the EPA prepared this RIA of the potential costs and benefits associated with this action. A copy of the analysis is available in the RIA docket (EPA

HQ

- OAR

- 2013

- 0169 ) and the analysis is briefly summarized here. The RIA estimates the costs
and monetized human health and we lfare benefits of attaining four a lternative ozone NAAQS nationwide. Specifically, the RIA examines the alternatives of 75 ppb, 70 ppb, 65 ppb, and 60 ppb . The RIA contains illustrative analyses that consider a limited number of emissions control
scenarios that s tates and Regional Planning Organizations might implement to achieve these
alternative ozone NAAQS. However, the Clean Air Act (CAA) and judicial decisions make clear that the economic and technical feasibility of attaining ambient standards are not to be considered in setting or revising NAAQS, although such factors may be considered in the***E.O. 12866 Review

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- 5 development of s tate plans to implement the stan dards. Accordingly, although this RIA has been prepared, the results of the RIA have not been considered in issuing today’s proposed rule.

9. 6 Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low

- Income Po pulations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justic e part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low

income populations in the United St ates.

To gain a better understanding of the populations within the areas potentially impacted by a revised ozone NAAQS, the EPA conducted a proximity analysis that examined socio

demographic attributes of populations in these areas. For these analyses, the areas of interest were defined as all Core Based Statistical Area (CBSA) counties with one or more monitors reporting air quality for the period 2011 to 2013 that is above the levels defining the range of alternative primary standards being considered (i.e., 65 ppb to 70 ppb). For counties with design values for 2011 to 2013 above the levels of the alternative standards that are not within a CBSA, EPA used just the county to represent the area of interest. The tabulation of results from this analysis a re presented below. Table 9

- 1 shows the percent of minority populations within CBSAs with monitors above the levels of the proposed ozone standards, as well as the national percentages for comparison. Table 9

- 2 shows the percent of populations of differe nt ages, education, and income level for those same areas. Additional details can be found in Appendix
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- 6 Table 9

- 1. Demographic Attributes of CBSAs with One or More Monitors Exceeding

Alternative Levels of the Primary Ozone Standards Demographic Summa ry Population White African American Native

American Other or

Multiracial Minority /

Hispanic Area of Interest Total 65 ppb 221,504,526 153,751,578 30,452,543 1,726,379 35,574,026 67,752,948 70 ppb 193,316,836 132,112,738 27,193,155 1,488,364 32,522,579 61,204,098 % of Area of Interest Total 65 ppb 69% 14% 1% 16% 31% 70 ppb 68% 14% 1% 17% 32% National Total 312,861,256 226,405,205 39,475,216 2,952,087 44,028,748 115,989,918 % of National Total 72% 13% 1% 14% 37%

Table 9

- 2. Age Distribution and Socioeconomic Attributes of CBSAs with One or More

Monitors Exceeding Alternative Levels of the Primary Ozone Standards
Demographic Summary Population Age 0

- 4 Age 0

- 17 Age 65+ Without a HS Diploma Low Income
Area of Interest Total 65 ppb 221,504,526 14,701,432 54,028,652 27,172,904 20,719,946 64,455,446 70 ppb 193,316,836 12,849,637 47,296,147 23,518,071 18,313,343 56,123,322
% of Area of Interest Total 65 ppb 7% 24% 12% 15% 29% 70 ppb 7% 24% 12% 15% 29% National Total 312,861,256 20,465,065 75,217,176 40,830,262 30,952,789 101,429,436
% of National Total 7% 24% 13% 15% 32%
This analysis identifies, on a limited basis, the subpopulations that may be exposed to elevated ozone concentrations, who thus are expected to benefit most from this regulation. This analysis does not identify the demographic characteristics of the most h ighly affected individuals or communities; nor does it quantify the level of risk faced by those individuals or communities. To the extent that any minority, low

- income or indigenous subpopulation is disproportionately impacted by ozone levels because it r esides in an area of interest, that subpopulation also stands to see increased environmental and health benefits from the emission reductions called for by this proposed rule. The EPA has determined that this proposed rule will not have disproportionatel y high and adverse human health or environmental effects on minority or low

- income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or en vironmental effects on any population,***E.O. 12866 Review

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- 7 including any minority or low

- income population. The proposed rule will establish uniform national standards for ozone air pollution.

9. 7 Executive Order 13045: Protection of Children from Environmental Health & Safety Risks
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) 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 the 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 o f 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.

Today’s proposed rule is subject to Executive Order 13045 because it is an ec onomically significant regulatory action as defined by Executive Order 12866, and we believe that the environmental health risk addressed by this action may have a disproportionate effect on children. The proposed rule will establish uniform national ambie nt air quality standards for

ozone ; these standards are designed to protect public health with an adequate margin of safety,
as required by CAA section 109. However, the protection offered by these standards may be especially important for children because children, especially children with asthma, along with other sensitive population subgroups such as all people with lung disease and people active outdoors, are potentially susceptible to health effects resulting from ozone exposure. Because
children are considered a potentially susceptible population, we have carefully evaluated the environmental health effects of exposure to ozone pollution among children. Discussions of the results of the evaluation of the scientific evidence, policy considerations, and the exposure and risk assessments pertaining to children occurs throughout the preamble.

9. 8 Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to e nsure “meaningful and timely input by s tate and local officials in the development of regulatory policies that have federalism implications.” “Policies***E.O. 12866 Review

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- 8 that have f

ederalism implications” are defined in the Executive Order to include regulations that have “ sub stantial direct effects on the s tates, on the relationship between the national government
and the s tates, or on the distribution of power and responsibilities among the various levels of government.”

Today’s proposed rule does not have federalism imp lications. It will not have sub stantial
direct effects on the s tates, on the relationship between the national government and the s tates, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The rule does not alter the relationship between the f ederal government and the s tates regarding the establishment and implementation of air quality improvement programs as codified in the CAA. Under section 109 of the CAA, the EPA is
mandate d to establish NAAQS; however, CAA section 116 preserves the rights of s tates to establish more stringent requirements if deemed necessary by a s tate. Furthermore, this proposed rule does not impact CAA section 107 which establishes that the s tates have pr imary responsibility for implementation of the NAAQS. Finally, as noted in section E (above) on UMRA, this rule does n ot impose significant costs on s tate, local, or t ribal governments or the private sector. Thus, Executive Order 13132 does not apply to th is rule.

However, as also noted in section D (above) on UMRA, EPA recognizes that s tates will have a substantial interest in this rule and any corresponding revisions to associated SIP requirements and air quality surveillance requirements, 40 CFR part 51 and 40 CFR part 58, respectively. Therefore, in the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and s tate and local governments, the EPA has specifically solicited comment on today’s propose d rule from s tate and local officials

.

9. 9 Executive Order 13175: Consultation and Coordination with Ind ian Tribal Governments
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), r equires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule concerns the establishment of ozone NAAQS. T he Tribal Authority Rule gives t ribes the opportunity to develop and implement CAA***E.O. 12866 Review

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- 9 programs such as the ozone NAAQS, but it leaves to the discretion of the t ribe whether to develop these programs and which programs, or appropriate elements of a program, they will adopt.

To day’s proposed rule does not have t ribal implications, as specified in Executive Order
13175. It does not have a substantial direct effect on on e or more Indian Tribes, since t ribes are not obligated to adopt or implement any NAAQS. Thus, Executive Order 1 3175 does not apply
to this rule.

Although Executive Order 13175 does not apply to today’s proposed rule, the EPA contacted tribal environmental professionals during the development of the proposed rule. The EPA staff participated in the regularly schedule d Tribal Air call sponsored by the National Tribal Air Association in 2014 as the proposal was under development. The EPA specifically solicits additional comment on this proposed rule from tribal officials.

9. 10 Executive Order 13211: Actions that Signifi cantly Affect Energy Supply, Distribution, or Use Today’s proposed rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution,
or U se” (66 FR 28355 (M ay 22, 2001)) because in the Agency’s judgment it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The purpose of this rule is to establish revised NAAQS for ozone . The rule does not prescribe specific pollution control strategies by which these ambient standards will be met. Such strategies will be developed by

s tates on a case

- by

- case basis, and the EPA cannot predict whether the control options selected by s tates will include regulations on energy suppliers, distributors, or users. Thus, the EPA concludes that today’s proposed rule is not likely to have any adverse energy effects and does not constitute a significant energy action as d efined in Executive Order 132 11.

Application of the modeled illustrative control strategy containing known controls for power plants, shown in Chapter 7, means that 3 percent of the total projected coal

- fired EGU capacity nationwide in 2025 could be affected by controls for the altern ative standard level of 70 ppb. Similarly, 21 percent of total projected coal

- fired EGU capacity in 2025 could be affected
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- 10 ppb. In addition, some fuel s witching might occur that could alter these percentages, though we are unable to estimate the effect on energy impacts from fuel switching. Controls on EGUs powered by fuels other than coal were not part of this illustrative analysis, and thus, would not be affected. In addition, we are unable to estimate energy impacts resulting from application of
controls to non

- EGUs or mobile sources. It is important to note that the estimates presented above are just one illustrative strategy and states may choose to apply control on sources other than EGUs for the purposes of attaining a more stringent ozone standard.