Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Proposed Rules 76197

and continues through the area

described in paragraph (a) of this

section.

(d) All vessels over 5000 gross tons

intending to pass LPG vessels moored in

Port Sutton, and all vessels intending to

pass LPG vessels moored in Rattlesnake,

must give 30 minutes notice to the LPG

vessel so it may take appropriate safety

precautions.

(e) The general regulations governing

safety zones contained in § 165.23

apply.

(f) The Coast Guard Captain of the

Port Tampa will notify the maritime

community of periods during which

these safety zones will be in effect by

providing advance notice of scheduled

arrivals and departures of loaded LPG

vessels via a marine broadcast Notice to

Mariners.

(g) Should the actual time of entry of

the LPG vessel into the safety zone vary

more than one half (1⁄2) hour from the

scheduled time stated in the broadcast

Notice to Mariners, the person directing

the movement of the LPG vessel shall

obtain permission from Captain of the

Port Tampa before commencing the

transit.

(h) Prior to commencing the

movement, the person directing the

movement of the LPG vessel shall make

a security broadcast to advise mariners

of the intended transit. All additional

security broadcasts as recommended by

the U.S. Coast Pilot 5, ATLANTIC

COAST, shall be made throughout the

transit.

(i) Vessels carrying LPG are permitted

to enter and transit Tampa Bay and

Hillsborough Bay and approaches only

with a minimum of three miles

visibility.

(j) The Captain of the Port Tampa may

waive any of the requirements of this

subpart for any vessel upon finding that

the vessel or class of vessel, operational

conditions, or other circumstances are

such that application of this subpart is

unnecessary or impractical for purposes

of port safety or environmental safety.

(k) The owner, master, agent or person

in charge of a vessel or barge, loaded

with LPG shall report, at a minimum,

the following information to the Captain

of the Port Tampa at least twenty-four

(24) hours before entering Tampa Bay,

its approaches, or departing Tampa Bay:

(1) The name and country of registry

of the vessel or barge;

(2) The name of the port or place of

departure;

(3) The name of the port or place of

destination;

(4) The estimated time that the vessel

is expected to begin its transit of Tampa

Bay and the time it is expected to

commence its transit of the safety

zone(s); and

(5) The cargo carried and amount.

Dated: September 28, 2000.

A.L. Thompson, Jr.,

Captain, Coast Guard, Captain of the Port,

Tampa, Florida.

[FR Doc. 00–31046 Filed 12–5–00; 8:45 am]

BILLING CODE 4910–15–U

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[Region II Docket No. NY44–215, FRL–6911–

9]

Approval and Promulgation of

Implementation Plans; New York;

Nitrogen Oxides Budget and

Allowance Trading Program

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: The Environmental Protection

Agency (EPA) is proposing to approve a

State Implementation Plan (SIP)

revision submitted by the State of New

York. This SIP revision responds to the

EPA’s regulation entitled, ‘‘Finding of

Significant Contribution and

Rulemaking for Certain States in the

Ozone Transport Assessment Group

Region for Purposes of Reducing

Regional Transport of Ozone,’’

otherwise known as the ‘‘NOX SIP Call.’’

The SIP revision includes a narrative

and a regulation that establish a

statewide nitrogen oxides (NOX) budget

and a NOX allowance trading program

that begins in 2003 for large electricity

generating and industrial sources.

The intended effect of this SIP

revision is to reduce emissions of NOX

in order to help attain the national

ambient air quality standard for ozone.

EPA is proposing this action pursuant to

section 110 of the Clean Air Act.

DATES: EPA must receive written

comments on or before January 5, 2001.

ADDRESSES: All comments should be

addressed to: Raymond Werner, Chief,

Air Programs Branch, Environmental

Protection Agency, Region II Office, 290

Broadway, 25th Floor, New York, New

York 10007–1866.

Copies of the State submittal and

other information are available at the

following addresses for inspection

during normal business hours:

Environmental Protection Agency,

Region II Office, Air Programs Branch,

290 Broadway, 25th Floor, New York,

New York 10007–1866.

New York State Department of

Environmental Conservation, Division

of Air Resources, 50 Wolf Road,

Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Ted

Gardella at (212) 637–3892 for general

questions, Rick Ruvo at (212) 637–4014

for specific questions on the Trading

Program, or Raymond Forde at (212)

637–3716 for specific questions on the

Budget Demonstration; Air Programs

Branch, Environmental Protection

Agency, 290 Broadway, 25th Floor, New

York, New York 10007–1866.

SUPPLEMENTARY INFORMATION:

Overview

The Environmental Protection Agency

(EPA) is proposing to approve the New

York State Department of

Environmental Conservation’s (New

York’s) NOX SIP Call State

Implementation Plan (SIP) revision. The

following table of contents describes the

format for this SUPPLEMENTARY

INFORMATION section:

I. EPA’s Action

A. What action is EPA proposing today?

B. Why is EPA proposing this action?

C. What are the NOX SIP Call general

requirements?

D. What is the NOX Budget and Allowance

Trading Program?

E. What guidance did EPA use to evaluate

New York’s program?

F. What is the result of EPA’s evaluation

of New York’s program?

II. New York’s NOX Budget Program

A. What is New York’s NOX Budget

Demonstration?

B. What is New York’s NOX Budget

Trading Program?

C. What is the Compliance Supplement

Pool?

D. How does New York’s program protect

the environment?

E. How will New York and EPA enforce the

program?

F. When did New York propose and adopt

the program?

G. When did New York submit the SIP

revision to EPA and what did it include?

H. What other significant items relate to

New York’s program?

I. Impact of D.C. Circuit Court remand on

New York’s NOX SIP Call submittal.

J. What is the relationship of today’s

proposal to EPA’s findings under the

section 126 rule?

III. Proposed Action

IV. Administrative Requirements

I. EPA’s Action

A. What action is EPA proposing today?

76198 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Proposed Rules

1Alabama, Connecticut, District of Columbia,

Delaware, Georgia, Illinois, Indiana, Kentucky,

Massachusetts, Maryland, Michigan, Missouri,

North Carolina, New Jersey, New York, Ohio,

Pennsylvania, Rhode Island, South Carolina,

Tennessee, Virginia, Wisconsin, and West Virginia.

2On May 25, 1999, the D.C. Circuit issued a

partial stay of the submission of the SIP revisions

required under the NOX SIP Call. The NOX SIP Call

had required submission of the SIP revisions by

September 30, 1999. State Petitioners challenging

the NOX SIP Call moved to stay the submission

schedule until April 27, 2000. The D.C. Circuit

issued a stay of the SIP submission deadline

pending further order of the court. Michigan v. EPA,

No. 98–1497 (D.C. Cir. May 25, 1999) (order

granting stay in part).

On April 3rd and 18th, 2000, New York

voluntarily submitted this revision to EPA for

approval notwithstanding the court’s stay of the SIP

submission deadline. On March 3, 2000, the D.C.

Circuit ruled on Michigan v. EPA, affirming many

aspects of the SIP Call and remanding certain other

portions to the Agency. On June 22, 2000, the DC

Circuit upheld EPA’s NOX SIP Call. This allows

EPA to move forward on a fixed schedule to reduce

NOX emissions. The court’s previous rulings did

not affect this action because it was submitted and

is being proposed as a SIP-strengthening measure

regardless of the status of the case.

EPA proposes approval of revisions to

New York’s ground level ozone SIP

which New York submitted on April 3,

2000 and April 18, 2000. These SIP

revisions include a new regulation, 6

NYCRR Part 204, ‘‘ NOX Budget Trading

Program,’’ dated April 3, 2000, and a

narrative entitled, ‘‘New York State

Implementation Plan For Ozone;

Meeting The Statewide Oxides of

Nitrogen (NOX) Budget Requirements

Contained In The NOX SIP Call (63 FR

57356, October 27, 1998),’’ dated April

18, 2000 and supplemented on May 16,

2000. New York submitted the

regulation and narrative, including NOX

reducing measures, in order to

strengthen its one-hour ozone SIP and to

comply with the NOX SIP Call during

each ozone season, i.e., May 1 through

September 30, beginning in 2003. EPA

proposes that New York’s submittal is

fully approvable as a SIP strengthening

measure for New York’s one-hour

ground level ozone SIP and EPA has

determined it meets the air quality

objectives of EPA’s NOX SIP Call

requirements. New York’s SIP revision

also satisfies Phase III of the Ozone

Transport Commission’s NOX Budget

Program as discussed in section II.H. of

this document.

B. Why Is EPA Proposing This Action?

EPA is proposing this action in order

to:

• Approve a control program which

reduces NOX emissions, a precursor of

ozone, and which therefore helps to

achieve the national ambient air quality

standard for ozone,

• Fulfill New York’s and EPA’s

requirements under the Clean Air Act

(the Act),

• Make New York’s NOX allowance

trading regulation federally enforceable

and available for credit in the SIP,

• Make New York’s SIP narrative,

including the ozone season NOX budget,

federally enforceable as part of the New

York SIP, and

• Give the public an opportunity to

submit written comments on EPA’s

proposed action, as discussed in the

DATES and ADDRESSES sections.

C. What Are the NOX SIP Call General

Requirements?

On October 27, 1998, EPA published

a final rule entitled, ‘‘Finding of

Significant Contribution and

Rulemaking for Certain States in the

Ozone Transport Assessment Group

Region for Purposes of Reducing

Regional Transport of Ozone,’’

otherwise known as the ‘‘NOX SIP Call.’’

See 63 FR 57356. At that time, the NOX

SIP Call required 22 states and the

District of Columbia 1 to meet statewide

NOX emission budgets during the five

month period from May 1 through

September 30 in order to reduce the

amount of ground level ozone that is

transported across the eastern United

States. The NOX SIP Call set out a

schedule that required the affected

states to adopt regulations by September

30, 1999, and to implement control

strategies by May 1, 2003.2

The NOX SIP Call allowed states the

flexibility to decide which source

categories to regulate in order to meet

the statewide budgets. However, the SIP

Call notice suggested that imposing

statewide NOX emissions caps on large

fossil-fuel fired industrial boilers and

electricity generators would provide a

highly cost-effective means for states to

meet their NOX budgets. In fact, the

state-specific budgets were derived

using an emission rate of 0.15 pounds

NOX per million British thermal units

(lb. NOX/mmBtu) at electricity

generating units (EGUs) with a

nameplate capacity greater than 25

megaWatts, multiplied by the projected

heat input (mmBTU) from burning the

quantity of fuel needed to meet the 2007

forecast for electricity demand. See 63

FR 57407. The calculation of the 2007

EGU emissions was based on an

emissions trading program used to

achieve part of an EGU control program.

The NOX SIP Call state budgets also

assumed on average a 30% NOX

reduction from cement kilns, a 60%

reduction from industrial boilers and

combustion turbines, and a 90%

reduction from internal combustion

engines. The non-EGU control

assumptions were applied to units

where the heat input capacities were

greater than 250 mmBtu per hour, or in

cases where heat input data were not

available or appropriate, to units with

actual emissions greater than one ton

per day.

To assist the states in their efforts to

meet the SIP Call, the NOX SIP Call final

rulemaking included a model NOX

allowance trading regulation, called

‘‘NOX Budget Trading Program for State

Implementation Plans,’’ (40 CFR part

96), that could be used by states to

develop their regulations. The NOX SIP

Call rule explained that if states

developed an allowance trading

regulation consistent with the EPA

model rule, they could participate in a

regional allowance trading program that

would be administered by the EPA. See

63 FR 57458–57459.

D. What Is the NOX Budget and

Allowance Trading Program?

EPA’s model NOX budget and

allowance trading rule for SIPs, 40 CFR

part 96, sets forth a NOX emissions

trading program for large EGUs and nonEGUs. A state can voluntarily choose to

adopt EPA’s model rule in order to

allow its sources to participate in

regional allowance trading. The October

27, 1998 Federal Register notice

contains a full description of the EPA’s

model NOX budget trading program. See

63 FR 57514–57538 and 40 CFR part 96.

In general, air emissions trading uses

market forces to reduce the overall cost

of compliance for pollution sources,

such as power plants, while achieving

emission reductions and environmental

benefits. One type of market-based

program is an emissions budget and

allowance trading program, commonly

referred to as a ‘‘cap and trade’’

program.

In an emissions budget and allowance

trading program, the state or EPA sets a

regulatory limit, or emissions budget, in

mass emissions from a specific group of

sources. The budget limits the total

number of allocated allowances during

a particular control period. When the

budget is set at a level lower than the

current emissions, the effect is to reduce

the total amount of emissions during the

control period. After setting the budget,

the state or EPA then assigns, or

allocates, allowances to the

participating entities up to the level of

the budget. Each allowance permits the

emission of a quantity of pollutant, e.g.,

one ton of airborne NOX.

At the end of the control period, each

source must demonstrate that its actual

emissions during the control period

were less than or equal to the number

of available allowances it holds. Sources

that reduce their emissions below their

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Proposed Rules 76199

allocated allowance level may sell their

extra allowances. Sources that emit

more than the amount of their allocated

allowance level may buy allowances

from the sources with extra reductions.

In this way, the budget is met in the

most cost-effective manner. An example

of a budget and allowance trading

program is EPA’s Acid Rain Program for

reducing sulfur dioxide emissions.

E. What Guidance Did EPA Use To

Evaluate New York’s Program?

EPA evaluated New York’s NOX SIP

Call submittal using EPA’s ‘‘NOX SIP

Call Checklist,’’ (the checklist), issued

on April 9, 1999. The checklist

summarizes the requirements of the

NOX SIP Call set forth in 40 CFR 51.121

and 51.122. The checklist, developed

from the basic requirements of the

formal SIP Call Federal Register action

(63 JR 57356), outlines the criteria that

the EPA Regional Office used to

determine the completeness and

provability of New York’s submittal.

As noted in the checklist, the key

elements of an provable submittal under

the NOX SIP Call are: a budget

demonstration; enforceable control

measures; legal authority to implement

and enforce the control measures;

adopted control measure compliance

dates and schedules; monitoring, record

keeping, and emissions reporting; as

well as elements that apply to states that

choose to adopt an emissions trading

rule in response to the NOX SIP Call.

The checklist is available to the public

on EPA’s web site at: http://

www.epa.gov/ttn/otag/sip/related.html.

As described above, the final NOX SIP

Call rule included a model NOX budget

trading regulation. See 40 CFR part 96.

EPA used the model rule to evaluate

New York’s Part 204. Additionally, EPA

used the October 1998 final NOX SIP

Call rulemaking, as well as the

subsequent technical amendments to

the NOX SIP Call, published in May

1999 (64 FR 26298) and March 2000 (65

FR 11222), in evaluating the

approvability of New York’s submittal.

EPA also used section 110 of the Act,

‘‘Implementation Plans,’’ to evaluate the

approvability of New York’s submittal

as a revision to the SIP.

F. What Is the Result of EPA’s

Evaluation of New York’s Program?

EPA has evaluated New York’s NOX

SIP Call submittal and proposes to find

it approvable. The April 3, 2000 and

April 18, 2000 submittals will

strengthen New York’s SIP for reducing

ground level ozone by providing NOX

reductions beginning in 2003. EPA

proposes to find that the NOX control

measure, Part 204, as well as the SIP

narrative that includes New York’s 2007

NOX baseline and controlled budgets,

are approvable. EPA finds that the

submittal contained the information

necessary to demonstrate that New York

has the legal authority to implement and

enforce the control measures, as well as

a description of how the state intends to

use the compliance supplement pool.

Furthermore, EPA proposes to find that

the submittal demonstrates that the

compliance dates and schedules, and

the monitoring, record keeping and

emission reporting requirements will be

met.

Although provisions in New York’s

control regulation, Part 204, differ

slightly from EPA’s NOX Budget Trading

Model Rule, EPA finds that Part 204 is

consistent with EPA’s guidance and

meets the requirements of the NOX SIP

Call, including those found in 40 CFR

part 51, § 51.121 and § 51.122 and 40

CFR part 96, as well as the general SIP

submittal requirements of the Act,

section 110, 42 U.S.C. 7401 et seq. The

most notable differences between the

EPA’s model rule and New York’s

control regulation are related to the

applicability of Part 204 to Portland

cement kilns and smaller electricity

generating sources than the model rule,

and the use of a different method for

allocating NOX allowances. These

differences are acceptable since Part 204

conforms with the timing requirements

for submitting the allocations to EPA.

While Part 204 contains provisions

which differ slightly from the model

rule, these deviations are limited to the

acceptable deviations under

§ 51.121(p)(2). Therefore New York’s

Part 204 is approvable as satisfying the

same portion of New York’s NOX

emission reduction obligations as the

State projects the regulation will satisfy.

See 63 FR 57495–57496.

EPA is proposing to approve New

York’s Part 204, and provides the

following clarification with respect to

exempted NOX Budget units. New

York’s Part 204–1.5 contains provisions

dealing with the shutdown and/or

change in physical characteristics of a

NOX Budget unit and allows units

which shutdown to re-enter the trading

program as new sources or as opt-in

sources if they change their physical

characteristics such that they no longer

are NOX Budget units. Therefore, New

York should ensure that when the State

computes future budget demonstrations,

the emissions which account for

shutdown and modified units are not

combined with emissions from these

new sources or with the emissions from

uncontrolled source categories.

For example, allowing shutdown

units to re-enter the Program without

reducing the budget will decrease the

tons of emissions reductions. The units’

emissions would still be included in the

trading program budget and allocated to

other NOX Budget units, thereby

requiring fewer tons of reduction from

all other NOX Budget units. Similarly,

New York’s Part 204–1.4(b) provides for

units which emit less than 25 tons of

NOX per ozone season to be exempted

from the trading program. However,

New York does not reduce the trading

program budget by the NOX emission

limitation which again creates the

potential for misinterpreting its

emissions during a future budget

determination. In this case, the unit’s

emissions could be counted in both the

trading program budget and the

uncontrolled source categories. In its

budget demonstration, New York is

responsible for accounting for the

emissions reductions which it would

have obtained from any shutdown or

modified units.

Regarding New York’s SIP narrative,

EPA finds that the submittal contains

the required elements, including: the

baseline inventory of NOX mass

emissions from EGUs, non-EGUs, area,

highway and non-road mobile sources

in the year 2007; the 2007 projected

inventory (budget demonstration)

reflecting NOX reductions achieved by

the state control measures contained in

the submittal; and the commitment to

meet the annual, triennial and 2007

state reporting requirements. EPA

further finds that New York’s 2007

projected inventory, reflecting the

control strategies, is approvable,

reflecting the air quality objectives of

the NOX SIP Call.

For additional information regarding

EPA’s evaluation of New York’s SIP Call

submittal, the reader should refer to the

document entitled, ‘‘Technical Support

Document for New York’s NOX SIP Call

Submittal,’’ dated October 3, 2000.

Copies of the technical support

document can be obtained at either of

the addresses listed in the ADDRESSES

section of this notice.

II. New York’s NOΧ Budget Program

A. What Is New York’s NOX Budget

Demonstration?

New York’s April 18, 2000 SIP

submittal, as supplemented on May 16,

2000, includes New York’s SIP narrative

entitled, ‘‘New York State

Implementation Plan For Ozone;

Meeting The Statewide Oxides of

Nitrogen ( NOX) Budget Requirements

Contained In The NOX SIP Call (63 FR

57356, October 27, 1998),’’ that contains

a statewide NOX emissions budget for

the 2007 ozone season. Combined with

76200 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Proposed Rules

New York’s new regulation, Part 204,

‘‘NOX Budget Trading Program,’’ the

narrative demonstrates that the

statewide NOX budget will be met in

2007.

The NOX SIP Call contained EPA

calculations of baseline NOX emissions

for the year 2007 for stationary point

sources that are EGUs, stationary point

sources that are non-EGUs, area sources,

and mobile sources (both nonroad and

highway). New York’s SIP submittal

incorporated EPA’s 2007 baseline

inventory.

To achieve the statewide budget, New

York is relying on the expected NOX

reductions from Part 204. Part 204

applies to all EGUs with nameplate

electricity generating capacities equal to

or greater than 15 megawatts that sell

any amount of electricity, non-EGU

units that have a maximum design heat

input capacity equal to or greater than

250 mmBtu per hour, as well as

Portland cement kilns with maximum

design heat inputs equal to or greater

than 250 mmBtu per hour.

Below is a table of the 2007 baseline,

2007 budget, and projected 2007

emission levels that New York has

submitted with its NOX SIP Call

submittals. The 2007 baseline and

budget emissions in the following table

are identical to the emission levels

published by EPA in the March 2000

technical amendment. EPA has

reviewed and agrees with New York’s

procedures for determining the 2007

projected emissions and reductions and

therefore, EPA expects that New York’s

2007 statewide budget will be achieved.

Source category

EPA’s 2007

baseline NOX

emissions

for NY

(tons/season)

EPA’s 2007

NOX budget

emissions

for NY

(tons/season)

NY’s 2007

projected

emissions

(tons/season)

NY’s 2007

projected

reductions

(tons/season)

EGUs ............................................................................................................... 39,199 31,036 1 30,589 8,610

Non-EGU Point ................................................................................................ 32,678 25,477 2 25,185 7,493

Area Sources ................................................................................................... 17,423 17,423 17,423 0

Non-Road Mobile ............................................................................................. 42,091 42,091 42,091 0

Highway Mobile ............................................................................................... 124,261 124,261 124,261 0

NY Total ................................................................................................ 255,652 240,288 239,549 16,103

1 30,405 cap from trading program.

2 10,945 cap from trading program.

B. What Is New York’s NOX Budget

Trading Program?

In response to the NOX SIP Call, New

York adopted Part 204, ‘‘NOX Budget

Trading Program.’’ With Part 204, New

York established a NOX cap and

allowance trading program for the ozone

seasons of 2003 and beyond. New York

developed the regulation in order to

reduce NOX emissions and allow its

sources to participate in the kind of

interstate NOX allowance trading

program described in § 51.121(b)(2).

Under Part 204, New York allocates

NOX allowances to its EGUs and large

industrial units, including Portland

cement kilns. Each NOX allowance

permits a source to emit one ton of NOX

during the seasonal control period. NOX

allowances may be bought or sold.

Unused allowances may also be banked

for future use, with certain limitations.

For each ton of NOX emitted in a control

period, EPA will remove one allowance

from the source’s NOX Allowance

Tracking System (NATS) account. Once

the allowance has been retired in this

way, no one can ever use the allowance

again.

Source owners will monitor their NOX

emissions by using systems that meet

the requirements of 40 CFR part 75,

subpart H, and report resulting data to

EPA electronically. Each budgeted

source complies with the program by

demonstrating at the end of each control

period that actual emissions do not

exceed the amount of allowances held

for that period. However, regardless of

the number of allowances a source

holds, it cannot emit at levels that

would violate other Federal or state

limits, for example, reasonably available

control technology (RACT), new source

performance standards, or Title IV (the

Federal Acid Rain program).

As described above, Part 204 differs

from EPA’s NOX model budget trading

rule in two notable ways. Specifically,

Part 204 includes Portland cement kilns

and smaller electricity generating

sources than the model rule. Also, Part

204 uses a different method for

allocating NOX allowances. Refer to

section I.F. of this document for more

details.

C. What Is the Compliance Supplement

Pool?

To provide additional flexibility for

complying with emission control

requirements associated with the NOX

SIP Call, the final NOX SIP Call

provided each affected state with a

‘‘compliance supplement pool.’’ The

compliance supplement pool is a

quantity of NOX allowances that may be

used to cover excess emissions from

sources that are unable to meet control

requirements during the 2003 and 2004

ozone season. Allowances from the

compliance supplement pool will not be

valid for compliance past the 2004

ozone season. The NOX SIP Call

included these voluntary provisions in

order to address commenters’ concerns

about the possible adverse effect that the

control requirements might have on the

reliability of the electricity supply, or on

other industries required to install

controls as the result of a state’s

response to the SIP Call.

A state may issue some or all of the

compliance supplement pool via two

mechanisms. First, a state may issue

some or all of the pool to sources with

credits from implementing NOX

reductions beyond all applicable

requirements after September 30, 1999

but before May 1, 2003 (i.e., early

reductions). In this way, sources that

cannot install controls prior to May 1,

2003, can purchase other sources’ early

reduction credits in order to comply.

Second, a state may issue some or all of

the pool to sources that demonstrate a

need for an extension of the May 1, 2003

compliance deadline due to undue risk

to the electricity supply or other

industrial sectors, and where early

reductions are not available. See 40 CFR

51.121(e)(3).

Part 204 provides for the distribution

of supplementary allowances by the

early reduction credit methodology but

not the direct distribution methodology.

The distribution of early reduction

credits are available to sources that

implement NOX reductions beyond

applicable requirements after September

30, 1999 but before May 1, 2003. Under

Part 204, New York will only provide

early reduction credits to those sources

holding banked allowances that were

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Proposed Rules 76201

allocated in 2000, 2001, and 2002,

under New York’s Ozone Transport

Commission’s (OTC’s) Memorandum of

Understanding (MOU). Subpart 227–3

contains New York’s SIP approved

OTC’s regional NOX cap and allowance

trading program. See 65 FR 20905, April

19, 2000.

Part 204 specifies New York’s

compliance supplement pool to be 2,370

allowances whereas EPA’s March 2000

technical amendment allows for 2,764

allowances. If New York wants to take

advantage of this increased share of the

pool, New York should amend Part 204

to 2,764 tons and submit it as a SIP

revision for EPA approval. Also, should

EPA subsequently revise New York’s

compliance supplement pool amount

through rulemaking, New York should

amend Part 204 and submit it as a SIP

revision for EPA approval.

D. How Does New York’s Program

Protect the Environment?

New York’s revised NOX SIP Call

submittal is expected to result in about

6.3% reduction in NOX from New

York’s total 2007 baseline ozone season

inventory and about 22.4% reduction in

NOX from the EGUs and non-EGUs

affected by Part 204. After reviewing air

quality modeling assessments

performed for the NOX SIP Call, EPA

has determined that the NOX reductions

in New York and other states subject to

the SIP Call will reduce the transport of

ozone starting in 2003.

Besides ozone air quality benefits,

decreases of NOX emissions will also

help improve the environment in

several other important ways. Decreases

in NOX emissions will decrease acid

deposition, nitrates in drinking water,

excessive nitrogen loadings to aquatic

and terrestrial ecosystems, and ambient

concentrations of nitrogen dioxide,

particulate matter and toxics. On a

global scale, decreases in NOX

emissions reduce greenhouse gases and

stratospheric ozone depletion.

E. How Will New York and EPA Enforce

the Program?

Once approved into New York’s SIP,

both New York and EPA will be able to

enforce the requirements of the NOX

budget and allowance trading program

in Part 204. All of the sources subject to

the NOX allowance trading program will

have federally-enforceable operating

permits that contain source specific

requirements, such as emission

allowances, emissions monitoring or

pollution control equipment

requirements. New York and EPA will

be able to enforce the source specific

requirements of those permits.

In order to determine compliance

with the emission requirements of the

program, at the end of each ozone

season, New York and EPA will

compare sources’ allowance and actual

emissions. The allowances are tracked

using the NOX Allowance Tracking

System (NATS). To be in compliance,

sources must hold a number of available

allowances that meets or exceeds the

number of tons of NOX actually emitted

by that source and recorded in the NOX

Emissions Tracking System (NETS) for a

particular ozone season. For sources

with excess emissions, penalties include

EPA deducting three times the unit’s

excess emissions from the unit’s

allocation for the next control period.

F. When Did New York Propose and

Adopt the Program?

New York published public notices

on June 30, 1999 and February 16, 2000

to announce the availability of the

proposed Part 204 and the SIP narrative,

that included the statewide 2007 NOX

emission budget, respectively. The

public notices opened 30-day public

comment periods. New York held

public hearings on the proposed

regulation on August 2 and 3, 1999 and

on the SIP narrative on March 20 and

21, 2000. After modifying the proposal

in response to public comment, New

York filed the final Part 204 on January

26, 2000 with the Department of State.

The regulation became effective at the

State level on February 25, 2000.

G. When Did New York Submit the SIP

Revision to EPA and What Did It

Include?

New York submitted Part 204 and the

SIP narrative to EPA, on April 3, 2000

and April 18, 2000 respectively, with a

request to revise the New York SIP. On

July 11, 2000, EPA sent a letter to New

York finding the SIP submittals

technically and administratively

complete.

New York’s SIP submittals include

the following:

• Adopted control measures which

require emission reductions beginning

in 2003; Part 204, ‘‘NOX Budget Trading

Program’’;

• A baseline inventory of NOX mass

emissions from EGUs, non-EGUs, area,

highway and non-road mobile sources

in the year 2007, as part of New York’s

SIP narrative;

• A 2007 projected inventory (budget

demonstration) reflecting NOX

reductions achieved by the state control

measures contained in the submittal, as

part of New York’s SIP narrative;

• A description of how the State

intends to use the compliance

supplement pool, as part of New York’s

SIP narrative and in Part 204;

• A commitment to meet the annual,

triennial, and 2007 reporting

requirements, as part of the SIP

narrative.

H. What Other Significant Items Relate

to New York’s Program?

In addition to submitting the April

2000 SIP package in order to fulfill its

NOX SIP Call obligation, New York

adopted Part 204 as part of its one-hour

ozone attainment plans for the ozone

nonattainment areas of the State. The

attainment plans rely on the NOX

reductions associated with Part 204 in

2003 and beyond. EPA proposed

approval of New York’s attainment

plans for ozone nonattainment areas on

December 16, 1999. See 64 FR 70364.

Approval and implementation of Part

204 is relied on in order for New York

to attain the one-hour ozone standard.

Part 204 is also related to the Ozone

Transport Commission’s (OTC’s) ozone

season NOX budget program. On

September 27, 1994, OTC adopted a

Memorandum of Understanding (MOU)

that committed the signatory states,

including New York, to the

development and proposal of a regionwide reduction in NOX emissions. The

OTC agreement committed the states to

one phase of reductions by 1999 and

another phase of reductions by 2003.

As a signatory state of the MOU, New

York adopted its NOX budget and

allowance trading regulation, Subpart

227–3, on January 12, 1999. Subpart

227–3 contained a NOX emissions

budget and allowance trading system for

the ozone seasons of 1999 through 2002,

the period known as ‘‘OTC Phase II.’’

EPA approved New York’s Phase II OTC

NOX budget regulation on April 19,

2000. See 65 FR 20905. Although the

OTC MOU obligations are not Federal

requirements, Part 204 can be viewed as

satisfying the ‘‘OTC Phase III’’ program

requirements for the ozone seasons

beginning in 2003 and beyond.

I. Impact of D.C. Circuit Court Remand

on New York’s NOX SIP Call Submittal

On March 3, 2000, the D.C. Circuit

ruled on Michigan v. EPA, affirming

many aspects of the NOX SIP call and

remanding certain other portions to the

Agency (e.g., the definition of an EGU

and the control assumptions for internal

combustion engines). Because of the

litigation, the States’ deadline for

submitting their SIP revisions was

extended, and as a result, by order dated

August 30, 2000, the Court also

extended the deadline for

implementation of the required SIP

revisions from May 1, 2003 to May 31,

76202 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Proposed Rules

3On August 30, 2000, in response to a motion

from industry, the Court extended the NOX SIP call

compliance deadline for sources until May 31,

2004. The court’s decision does not affect any state

that chooses to submit a SIP revision which

includes an earlier compliance deadline.

2004. Due to the Court’s remanding of

the EGU definition and IC engine

control assumptions, EPA must now

recalculate the final 2007 baseline, 2007

budget, and compliance supplement

allocation for each state subject to the

NOX SIP Call, including New York. The

Agency expects to publish those

recalculated budgets in the next few

months. However, this means that

although EPA is proposing to approve

New York’s SIP submittal as meeting the

air quality objectives of the NOX SIP

Call published to date, New York may

be required to make minor adjustments

to its NOX SIP Call program due to

potential forthcoming changes to the

NOX SIP Call requirements. At such

time as EPA publishes new emission

budget requirements, EPA will inform

New York and other states subject to the

NOX SIP Call as to what if any changes

are needed.

J. What Is the Relationship of Today’s

Proposal to EPA’s Findings Under the

Section 126 Rule?

In the January 18, 2000 section 126

rule (65 FR 2674), EPA granted, in part,

petitions submitted by Connecticut,

Massachusetts, New York, and

Pennsylvania under the 1-hour ozone

standard. The EPA made findings that

large EGUs and large non-EGUs located

in the District of Columbia and 12

states, including a portion of New York,

are significantly contributing to

nonattainment problems in one or more

of the petitioning states. The January 18,

2000 rule established Federal emissions

limits for the affected sources in the

form of tradable NOX allowances and

required these sources to reduce NOX

emissions by May 1, 2003.

The section 126 rule provides that if

a state submits, and EPA fully approves,

a SIP revision meeting the requirements

of the NOX SIP call, the section 126

findings and associated control

requirements would automatically be

revoked for sources in that state. See 40

CFR 52.34(i). As discussed in the

preamble to the section 126 rule (65 FR

2682–2684), the premise for the

automatic withdrawal provision was

that once a SIP (or Federal

Implementation Plan (FIP)) controls the

full amount of significant contribution

from a state, the section 126 sources in

that state could no longer be

significantly contributing to downwind

nonattainment, and hence the basis for

the section 126 findings would no

longer be present. Moreover, the

provision would ensure that the

downwind states receive the emission

reduction benefits they are entitled to

under section 126 by May 1, 2003,

either under the section 126 rule or

under a federally enforceable SIP or FIP.

See 65 FR 2684. Thus, EPA’s rationale

for adopting the automatic withdrawal

provision depended upon a May 1, 2003

compliance date for sources under the

SIP that would substitute for the control

remedy under section 126. Accordingly,

EPA interpreted section 52.34(i) to

apply only where EPA approves a SIP

revision (or promulgates a FIP) meeting

the full requirements of the NOX SIP

call and including a May 1, 2003

compliance date for sources.3 See 65 FR

2683.

As discussed in section II.I. of this

proposal, the EPA is currently revising

certain portions of the NOX SIP call in

response to a March 3, 2000 decision by

the U.S. Court of Appeals for the D.C.

Circuit. See Michigan v. EPA, 213 F.3d

663 (D.C. Cir. 2000). In this decision, the

court upheld the NOX SIP call on all

major issues, but remanded four narrow

issues to EPA for further rulemaking.

EPA expects to issue soon a proposal to

address the remanded issues, which

will slightly modify the NOX SIP

budgets based on the court’s decision. In

light of the changes necessary to

respond to the court decision, EPA

anticipates that the final NOX SIP

budgets would be no more stringent

than the original SIP budgets as

modified by the March 2, 2000 technical

amendment which modified the NOX

emission budgets for each affected state.

See 65 FR 11222. Therefore, a SIP

meeting the March 2, 2000 budgets and

providing for reductions by May 1,

2003, should fully address the

significant NOX transport from that

state, and therefore section 52.34(i)

would apply to automatically withdraw

the section 126 requirements for sources

in that state.

In today’s action, EPA is proposing to

approve the New York NOX SIP revision

as meeting the full NOX SIP Call, and

including a May 1, 2003 compliance

date. Therefore, if the SIP revision is

fully approved as proposed, the section

126 requirements will automatically be

withdrawn for sources in the State

pursuant to 40 CFR 52.34(i).

III. Proposed Action

EPA has reviewed New York’s April

3, 2000 and April 18, 2000 SIP

submittals, including New York’s May

16, 2000 supplement, using the NOX SIP

Call rulemaking notices and checklist.

EPA has reviewed New York’s control

measures and projected reductions and

finds them approvable. Therefore, EPA

proposes approval of Part 204 and the

SIP narrative into the New York SIP at

this time.

EPA is soliciting public comments on

the issues discussed in this proposal or

on other relevant matters. EPA will

consider these comments before it takes

final action. Interested parties may

participate in the Federal rulemaking

procedure by submitting written

comments to the EPA Regional office

listed in the ADDRESSES section of this

action.

IV. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a ‘‘significant regulatory action’’ and

therefore is not subject to review by the

Office of Management and Budget. This

action merely approves state law as

meeting Federal requirements and

imposes no additional requirements

beyond those imposed by state law.

Accordingly, the Regional

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). Because this

rule approves pre-existing requirements

under state law and does not impose

any additional enforceable duty beyond

that required by state law, it does not

contain any unfunded mandate or

significantly or uniquely affect small

governments, as described in the

Unfunded Mandates Reform Act of 1995

(Public Law 104–4). For the same

reason, this rule also does not

significantly or uniquely affect the

communities of tribal governments, as

specified by Executive Order 13084 (63

FR 27655, May 10, 1998). This rule 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 (64 FR 43255,

August 10, 1999), because it merely

approves a state rule implementing a

Federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Proposed Rules 76203

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of § 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (15 U.S.C. 272 note) do not

apply. As required by § 3 of Executive

Order 12988 (61 FR 4729, February 7,

1996), in issuing this rule, EPA has

taken the necessary steps to eliminate

drafting errors and ambiguity, minimize

potential litigation, and provide a clear

legal standard for affected conduct. EPA

has complied with Executive Order

12630 (53 FR 8859, March 15, 1988) by

examining the takings implications of

the rule in accordance with the

‘‘Attorney General’s Supplemental

Guidelines for the Evaluation of Risk

and Avoidance of Unanticipated

Takings’’ issued under the executive

order. This rule does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping

requirements.

Authority: 42 U.S.C. 7401 et seq.

Dated: November 27, 2000.

William J. Muszynski,

Acting Regional Administrator, Region 2.

[FR Doc. 00–30912 Filed 12–5–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[Docket Id–00–01; FRL–6912–4]

Finding of Attainment for PM–10;

Portneuf Valley PM–10 Nonattainment

Area, Idaho

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of proposed rule.

SUMMARY: EPA is proposing to find that

the Portneuf Valley nonattainment area

in Idaho has attained the National

Ambient Air Quality Standard (NAAQS)

for particulate matter with an

aerodynamic diameter of less than, or

equal to a nominal ten micrometers

(PM–10) as of December 31, 1996.

DATES: Written comments must be

received on or before December 26,

2000.

ADDRESSES: Written comments should

be mailed to Debra Suzuki, SIP

Manager, Office of Air Quality,

Mailcode OAQ–107, EPA Region 10,

1200 Sixth Avenue, Seattle,

Washington, 98101. Copies of

documents relevant to this action are

available for public review during

normal business hours (8 a.m. to 4:30

p.m.) at this same address.

FOR FURTHER INFORMATION CONTACT:

Steven K. Body, Office of Air Quality,

EPA Region 10, 1200 Sixth Avenue,

Seattle Washington, 98101, (206) 553–

0782.

SUPPLEMENTARY INFORMATION:

Throughout this notice, the words ‘‘we’’,

‘‘us’’, or ‘‘our’’ means the Environmental

Protection Agency (EPA).

Table of Comments

I. Background

A. Designation and Classification of PM–10

Nonattainment Areas.

B. How Does EPA Make Attainment

Determinations?

C. What is the Attainment Date for the

Portneuf Valley PM–10 Nonattainment

Area?

D. What PM–10 Planning has Occurred for

the Portneuf Valley PM–10

Nonattainment Area?

II. EPA’s Proposed Action

A. What Does the Air Quality Data Show

As of the December 31, 1996 Attainment

Date?

B. Does the More Recent Air Quality Data

Also Show Attainment?

C. Request for Public Comment.

III. Administrative Requirements

I. Background

A. Designation and Classification of

PM–10 Nonattainment Areas

Areas meeting the requirements of

section 107(d)(4)(B) of the Clean Air Act

(CAA) were designated nonattainment

for PM–10 by operation of law and

classified ‘‘moderate’’ upon enactment

of the 1990 Clean Air Act Amendments.

See generally 42 U.S.C. 7407(d)(4)(B).

These areas included all former Group

I PM–10 planning areas identified in 52

FR 29383 (August 7, 1987), as further

clarified in 55 FR 45799 (October 31,

1990), and any other areas violating the

NAAQS for PM–10 prior to January 1,

1989. A Federal Register notice

announcing the areas designated

nonattainment for PM–10 upon

enactment of the 1990 Amendments,

known as ‘‘initial’’ PM–10

nonattainment areas, was published on

March 15, 1991 (56 FR 11101) and a

subsequent Federal Register document

correcting the description of some of

these areas was published on August 8,

1991 (56 FR 37654). The PowerBannock Counties PM–10

nonattainment area was one of these

initial moderate PM–10 nonattainment

areas. As discussed below, the Portneuf

Valley PM–10 nonattainment area was

originally part of the Power-Bannock

Counties PM–10 nonattainment area.

All initial moderate PM–10

nonattainment areas had the same

applicable attainment date of December

31, 1994. Section 188(d) provides the

Administrator the authority to grant up

to two one-year extensions to the

attainment date provided certain

requirements are met. States containing

initial moderate PM–10 nonattainment

areas were required to develop and

submit to EPA by November 15, 1991,

a SIP revision providing

implementation of reasonably available

control measures (RACM), including

reasonably available control technology

(RACT), and a demonstration of whether

attainment of the PM–10 NAAQS by the

December 31, 1994 attainment date was

practicable. See section 189(a).

B. How Does EPA Make Attainment

Determinations

All PM–10 nonattainment areas are

initially classified ‘‘moderate’’ by

operation of law when they are

designated nonattainment. See section

188(a). Pursuant to sections 179(c) and

188(b)(2) of the Act, we have the

responsibility of determining within six

months of the applicable attainment

date whether, based on air quality data,

PM–10 nonattainment areas attained the

PM–10 NAAQS by that date.

Determinations under section 179(c)(1)

of the Act are to be based upon the

area’s ‘‘air quality as of the attainment

date.’’ Section 188(b)(2) is consistent

with this requirement.

Generally, we determine whether an

area’s air quality is meeting the PM–10

NAAQS for purposes of section

179(c)(1) and 188(b)(2) based upon data

gathered at established state and local

air monitoring stations (SLAMS) and

national air monitoring stations (NAMS)

in the nonattainment areas and entered

into the EPA Aerometric Information

Retrieval System (AIRS). Data entered

into the AIRS has been determined to

meet federal monitoring requirements

(see 40 CFR 50.6, 40 CFR part 50,

appendix J, 40 CFR part 53, 40 CFR part

58, appendix A &B) and may be used to

determine the attainment status of areas.

We will also consider air quality data

from other air monitoring stations in the

nonattainment area provided that the

stations meet the federal monitoring

requirements for SLAMS. All data are

reviewed to determine the area’s air

quality status in accordance with our

guidance at 40 CFR part 50, appendix K.

Attainment of the annual PM–10

standard is achieved when the annual