17018 Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 

prepared and certification made that 

such regulations would not have a 

significant economic effect upon a 

substantial number of small entities. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

upon the data and assumptions for the 

counterpart Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: (a) Does not have an annual 

effect on the economy of $100 million; 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions; and (c) Does not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. This 

determination is based upon the fact 

that the State submittal, which is the 

subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation was not considered a major 

rule. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the fact that the State submittal, which 

is the subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation did not impose an unfunded 

mandate.

List of Subjects in 30 CFR Part 913 

Intergovernmental relations, Surface 

mining, Underground mining.

Dated: March 1, 2005. 

Charles E. Sandberg, 

Regional Director, Mid-Continent Regional 

Coordinating Center.

[FR Doc. 05–6601 Filed 4–1–05; 8:45 am] 

BILLING CODE 4310–05–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51 

[E–Docket ID No. OAR–2003–0079, FRL–

7895–3] 

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: Proposed rule; notice of public 

hearing. 

SUMMARY: The EPA is requesting 

comment on issues raised in a petition 

for reconsideration of EPA’s rule to 

implement the 8-hour ozone national 

ambient air quality standard (NAAQS or 

8-hour standard). On April 30, 2004, 

EPA took final action on key elements 

of the program to implement the 8-hour 

standard. In that final action, we (the 

EPA) addressed certain implementation 

issues related to the 8-hour standard, 

including aspects of implementation of 

the nonattainment major New Source 

Review (NSR) program mandated by 

part D of title I of the Act (CAA or Act). 

Following this action, on June 29, 

2004 and September 24, 2004, three 

different parties each filed a petition for 

reconsideration concerning 

implementation of the 8-hour standard, 

including both major NSR and other 

issues. By letter dated September 23, 

2004, EPA granted reconsideration of 

three issues raised in the petition for 

reconsideration filed by Earthjustice on 

behalf of several environmental 

organizations. On February 3, 2005, we 

published a proposed rule providing 

additional information and soliciting 

comment on two of the issues on which 

we granted reconsideration. Today, we 

provide additional information and seek 

comment on the third issue, which 

relates to two aspects of the major NSR 

provisions in the April 30, 2004 final 

rules. Specifically, we request comment 

on 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, and 

whether EPA properly concludes that a 

State’s request to remove 1-hour major 

NSR programs from its State 

Implementation Plan (SIP) will not 

interfere with any applicable 

requirement within the meaning of 

Section 110(l) of the Act.

DATES: Comments. Comments must be 

received on or before May 4, 2005. 

Public Hearing. The public hearing 

will convene at 9 a.m. and will end at 

5 p.m. on April 18, 2005. All 

individuals who have registered to 

speak before the date of the public 

hearing will be given an opportunity to 

speak. Because of the need to resolve 

the issues raised in this in a timely 

manner, EPA will not grant requests for 

extension of the public comment period. 

For additional information on the public 

hearing and requesting to speak, see the 

SUPPLEMENTARY INFORMATION section of 

this proposed rule.

ADDRESSES: Comments. Submit your 

comments, identified by Docket ID No. 

OAR–2003–0079, by one of the 

following methods to the docket. If 

possible, also send a copy of your 

comments to Ms. Lynn Hutchinson by 

either mail or e-mail as identified in the 

FOR FURTHER INFORMATION CONTACT

section. 

1. Federal eRulemaking Portal:

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

2. Agency Web site: http://

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

3. E-mail: A-and-R-Docket@EPA.gov.

Attention E-Docket No. OAR–2003–

0079. 

4. Fax: The fax number of the Air 

Docket is (202) 566–1741. Attention EDocket No. OAR–2003–0079. 

5. Mail: Air Docket, Environmental 

Protection Agency, Attention E-Docket 

No. OAR–2003–0079, Mailcode: 6102T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. In addition, 

please mail a copy of your comments on 

the information collection provisions to 

the Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

EPA, 725 17th St., NW., Washington, DC 

20503.

6. Hand Delivery: Air Docket, 

Attention E-Docket No. OAR–2003–

0079, Room B–102, Environmental 

Protection Agency West, 1301 

Constitution Avenue, NW., Washington, 

DC 20460. Such deliveries are only 

accepted during the Docket’s normal 

hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. OAR–2003–0079. The 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http://

www.epa.gov/edocket, including any 

Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 17019

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the Federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket. 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., 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 and Radiation Docket, 

EPA/DC, EPA West, Room B102, 1301 

Constitution Ave., NW., Washington, 

DC. This docket facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

Air and Radiation Docket telephone 

number is (202) 566–1742. 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 (non-NSR notice says 

566–1741).

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: 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. What Should I Consider as I Prepare 

My Comments for EPA? 

You may find the following 

suggestions helpful for preparing your 

comments.

• Explain your views as clearly as 

possible. 

• Describe any assumptions that you 

used. 

• Provide any technical information 

and/or data you used that support your 

views. 

• If you estimate potential burden or 

costs, explain how you arrived at your 

estimate. 

• Provide specific examples to 

illustrate your concerns. 

• Offer alternatives. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

• To ensure proper receipt by EPA, 

identify the appropriate docket 

identification number in the subject line 

on the first page of your response. It 

would also be helpful if you provided 

the name, date, and Federal Register

citation related to your comments. 

C. Where Can I Get a Copy of This 

Document and Other Related 

Information? 

In addition to being available in the 

docket, an electronic copy of today’s 

notice is also available on the World 

Wide Web. Following signature by the 

EPA Administrator, a copy of today’s 

notice will be posted in the regulations 

and standards section of the New 

Source Review home page located at 

http://www.epa.gov/nsr.

D. What Information Should I Know 

About the Public Hearing? 

The public hearing will be held at the 

EPA’s facility at 109 TW Alexander 

Drive, Research Triangle Park, NC, or at 

an alternate facility nearby. Please check 

our Web site at http://www.epa.gov/nsr/

for information and updates concerning 

the public hearing. 

The public hearing will provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning the issues raised in this 

notice. People interested in attending or 

presenting oral testimony are 

encouraged to register in advance by 

contacting Ms. Chandra Kennedy, 

OAQPS, Integrated Implementation 

Group, Information Transfer and 

Program Integration Division (C339–03), 

U.S. Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number (919) 541–5319 or eVerDate jul<14>2003 15:01 Apr 01, 2005 Jkt 205001 PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 E:\FR\FM\04APP1.SGM 04APP1
17020 Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 

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. 

mail kennedy.chandra@epa.gov no later 

than April 14, 2005. Presentations will 

be limited to 5 minutes each. We will 

assign speaking times to speakers who 

make a timely request to speak at the 

hearing. We will notify speakers of their 

assigned times by April 18, 2005. We 

will attempt to accommodate all other 

people who wish to speak, as time 

allows. 

The EPA’s planned seating 

arrangement for the hearing is theater 

style, with seating available on a first 

come first served basis for about 250 

people. Attendees should note that the 

use of pickets or other signs will not be 

allowed on either government or hotel 

property. 

As of the date of this announcement, 

the Agency intends to proceed with the 

hearing as announced; however, 

unforeseen circumstances may result in 

a postponement. Therefore, we advise 

members of the public who plan to 

attend the hearing to contact Ms. 

Chandra Kennedy at the above 

referenced address to confirm the 

location and date of the hearing. You 

may also check our New Source Review 

Web site at http://www.epa.gov/nsr for 

any changes in the date or location. 

The record for this action will remain 

open until May 19, 2005, to 

accommodate submittal of information 

related to the public hearing. 

E. How Is This Notice Organized? 

The information presented in this 

notice is organized as follows:

I. General Information 

A. Does This Action Apply To Me? 

B. What Should I Consider as I Prepare My 

Comments for EPA? 

C. Where Can I Get a Copy of This 

Document and Other Related 

Information? 

D. What Information Should I Know About 

the Public Hearing? 

E. How Is This Notice Organized? 

II. Background

III. Today’s Action on Reconsideration 

A. Reconsideration Petitions 

B. Schedule for Reconsideration and Status 

of Final Rules 

IV. Rational and Legal Basis 

A. Overview 

B. The Clean Air Act Does Not Compel 

EPA To Retain 1-Hour Major NSR 

Requirements in Implementing the 8-

Hour Standard Because Major NSR Is 

Not a ‘‘Control’’. 

C. No State’s Removal of 1-Hour Major 

NSR Requirements From the SIP Will 

Interfere With Any Applicable 

Requirement Under the Act Within the 

Meaning of Section 110(l) 

D. Request for Comment 

V. 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 

VI. Statutory Authority

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 ppm. We 

established the new 8-hour standard at 

0.08 ppm. See 62 FR 38856. Following 

revision of the standard, we 

promulgated an implementation 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. See 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 

implementation strategy to EPA to 

develop a reasonable approach for 

implementation. Id. Accordingly, on 

June 2, 2003 (68 FR 32802), 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. On August 

6, 2003 (68 FR 46536), we published a 

notice of availability of draft regulatory 

text to implement the 8-hour standard. 

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 is 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 (69 FR 23951), we 

promulgated Phase I of the new 

implementation rule. 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 moderate 

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 reasonable further 

progress (RFP) (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).

III. Today’s Action on Reconsideration 

A. Reconsideration Petitions 

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, 

Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 17021

We are continuing to review the issues raised in the 

second and third of these petitions for 

reconsideration.

2See Whitman, 531 U.S. at 484 (‘‘The statute is 

in our view ambiguous concerning the manner in 

which Subpart 1 and Subpart 2 interact with regard 

to revised ozone standards, and we would defer to 

the EPA’s reasonable resolution of that ambiguity.’’)

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 1-hour 

ozone nonattainment classification. 

Petitioners also allege that EPA 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, EPA failed to 

provide notice and opportunity for 

public comment concerning these 

provision as required under CAA 

Section 307(d)(5). On September 23, 

2004, we granted reconsideration of 

three issues raised in the Earthjustice 

Petition. 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.

Today, we seek comment on the third 

issue raised in that petition, which 

related to elements of the major NSR 

program. Specifically, we request 

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. As previously 

discussed, we proposed an approach 

concerning whether 1-hour 

nonattainment major NSR requirements 

must remain in the SIP after we revoke 

the 1-hour standard. (68 FR at 32821–

22.) The public had an opportunity to 

comment on the approach we proposed, 

and in fact some commenters advocated 

replacing the 1-hour major NSR program 

with the 8-hour program. Nonetheless, 

we want Petitioners and others to have 

every opportunity to comment on our 

approach and to provide additional 

information that they believe to be 

relevant. For these reasons, we provide 

further explanation of our rationale for 

this action and request public comment 

on this approach. We will consider 

these comments and then make a final 

decision regarding the implementation 

of the NSR program under the 8-hour 

standard. 

B. Schedule for Reconsideration and 

Status of Final Rules 

We plan to take final action on our 

grant of reconsideration by the end of 

May 2005. A State can only remove 1-

hour NSR SIP provisions after we 

revoke the 1-hour standard. We plan to 

revoke the standard on June 15, 2005. 

Accordingly, no changes in 1-hour 

major NSR SIP programs could occur 

before June 15, 2005. The final rules 

concerning applicability of major NSR 

under the 8-hour standard remain in 

effect as promulgated until our final 

action on this reconsideration. 

IV. Rationale and Legal Basis 

A. Overview 

It is a basic tenet of administrative 

law that expert agencies have discretion 

to interpret ambiguous statutory terms. 

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 

387 (1984). We exercised this discretion 

in determining how to implement 

subpart 2 requirements for major NSR 

under the 8-hour standard, an issue that 

the Supreme Court has recognized is 

‘‘ambiguous.’’ 2

In determining how to implement the 

provisions of subpart 2 for the major 

NSR program under the 8-hour 

standard, we considered the statutory 

requirements, Congressional intent as 

expressed in the CAA legislative 

history, the history of the NSR 

regulatory program, and our actions on 

1-hour ozone Rate of Progress (ROP) 

plans and attainment demonstrations in 

general as they relate to nonattainment 

major NSR programs. We discuss this 

information below.

Our review of this information, as 

well as public comments on the 

proposed rule, supports our conclusion 

that once we revoke the 1-hour 

standard, the Act does not require States 

to retain a nonattainment major NSR 

program in their SIPs based on the 

requirements that applied by virtue of 

the area’s previous classification under 

the 1-hour standard. It also supports our 

conclusion that, based on section 110(l) 

of the Act, removing the 1-hour major 

NSR program does not interfere with 

any applicable requirements of the Act, 

including a State’s ability to reach 

attainment of the 8-hour standard and 

RFP. 

B. The Clean Air Act Does Not Compel 

EPA To Retain 1-Hour Major NSR 

Requirements in Implementing the 8-

Hour Standard Because Major NSR Is 

Not a ‘‘Control’’

Section 172(e) applies when we relax 

a NAAQS. It specifies that we ‘‘shall 

provide for controls which are not less 

stringent than the controls applicable to 

areas designated nonattainment before 

such relaxation.’’ By its terms, it does 

not directly apply to requirements to 

implement the 8-hour standard, because 

we strengthened the ozone NAAQS 

when we enacted the 8-hour standard. 

Nonetheless, 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 

that standard to make it more stringent, 

as is the case with the 8-hour standard. 

See 68 FR 32819. Accordingly, we 

required States to retain certain 

requirements associated with the 1-hour 

ozone nonattainment classification in 

implementing the 8-hour standard. See 

generally 69 FR 23951. 

Notwithstanding the requirement to 

retain certain 1-hour control measures, 

we determined that Section 172(e) and 

our interpretation of Congressional 

intent does not mandate that States 

retain 1-hour major NSR requirements 

under the 8-hour standard, because the 

major NSR program does not impose 

emissions ‘‘controls’’ that reduce a 

nonattainment area’s emissions below 

that area’s baseline year inventory. In 

this respect, major NSR is not a 

‘‘control’’ within the meaning of Section 

172(e). Thus, we concluded that because 

major NSR programs based on 1-hour 

classifications would not contribute 

emissions reductions below baseline 

levels, those provisions are not 

‘‘controls’’ that need to be preserved in 

implementing the 8-hour standard. 

The term ‘‘controls’’ as used in 

Section 172(e) is ambiguous. In 

determining whether the reference to 

‘‘controls’’ in Section 172(e) covers 1-

hour NSR requirements, and thus 

whether we should interpret the Act as 

requiring such controls to remain 

effective after revocation of the 1-hour 

standard, we looked first to the CAA 

statutory language and structure. We 

reasoned that ‘‘[t]he role of the NSR 

permitting program as a growth 

measure, rather than a control measure, 

is evidenced in the structure of the Act, 

17022 Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 

3Sections 107(d) and 172 of the Act (42 U.S.C. 

7407(d) and 7502; Sections 129(a) and (c) of the 

1977 Amendments, Pub. L. No. 95–95.

4Section 175A requires that when an area is 

redesignated from nonattainment to attainment, it 

must submit a plan to provide for maintenance of 

the Standard. The plan must include contingency 

provisions that, in the event of a violation of the 

Standard, would require the State to implement 

‘‘measures with respect to the control’’ of the 

Standard pollutant that were in the SIP prior to 

redesignation.

which delineates nonattainment NSR 

and control measures as separate SIP 

requirements,’’ citing, among other 

things, Section 110(a)(2)(A) and 

110(a)(2)(C). (69 FR at 23986). Similarly, 

Section 172(c), which identifies the 

requirements for nonattainment plans, 

lists requirements for implementation of 

control measures separately from the 

provision requiring permits for new and 

modified major stationary sources. 

Compare Sections 172(c)(1) and (c)(6) 

(referring to control measures) with

Section 172(c)(5) (referring to permits 

for new and modified major stationary 

sources). 

Second, to resolve the ambiguity over 

whether the term ‘‘controls’’ in section 

172(e) covers 1-hour NSR requirements, 

we further looked to Congress’ purpose 

in creating the major NSR program. The 

1970 statute did not contain any 

provisions concerning permitting of 

new sources, either in attainment or 

nonattainment areas. The statute set 

1975 as the deadline to meet the 

NAQQS in most regions, with some 

extensions until 1977. By the time of the 

1977 Amendments, many areas had 

missed their attainment deadlines, and 

it became apparent that, despite 

significant progress, SIPs were 

inadequate to achieve the NAAQS in 

many areas of the country.

In 1977 Congress considered whether 

new source growth could be allowed in 

areas not attaining the NAAQS.

A major weakness in implementation of 

the 1970 Act has been the failure to assess 

the impact of emissions from new sources of 

pollution on State plans to attain air quality 

standards by statutory deadlines. States have 

permitted growth on the assumption that a 

deadline was sufficiently distant so that 

future emissions reductions could be made to 

compensate for the initial increases. It can 

now be seen that these assumptions were 

wrong. Some mechanism is needed to assure 

that before new or expanded facilities are 

permitted, a State demonstrate that these 

facilities can be accommodated within its 

overall plan to provide for attainment of air 

quality standards. 

One mechanism is a case-by-case review of 

each new or modified major source of 

pollution that seeks to locate in a region 

exceeding an ambient standard. Such a 

review requires matching reductions from 

existing sources against emissions expected 

from the new source in order to assure that 

introduction of the new source will not 

prevent attainment of the applicable 

standard by the statutory deadline. This is 

the mechanism adopted by the Committee as 

a condition for approval of an 

implementation plan revision under section 

110(a)(3) and for extensions of the oxidant 

and carbon monoxide attainment deadlines 

beyond 1982. Sen. Rep. 95–127 at 55 (May 

10, 1977).

Congress thus recognized the need for 

a balance between the goals of attaining 

air quality standards and providing for 

new economic growth. As part of the 

1977 Amendments, Congress amended 

the Act to, among other things, establish 

a statutory approach to permit growth in 

polluted areas, while requiring 

attainment of the NAAQS by specific 

deadlines.3 This approach established 

the basic SIP process and requirements 

for attaining the NAAQS.

The major NSR program’s purpose ‘‘is 

to permit States to allow continued 

growth or expansion in nonattainment 

areas, so long as this growth or 

expansion is undertaken in a manner 

consistent with the goals and objectives 

of the Clean Air Act.’’ See H.R. Rpt. 95–

294 at 210 (May 12, 1977). Section 

172(a)(2) of the Act requires attainment 

as expeditiously as practicable 

considering the availability and 

feasibility of control measures and 

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

implementation of all reasonably 

available control measures as 

expeditiously as practicable to provide 

for attainment of the NAAQS by the 

area’s attainment date. Conversely, 

Section 173(a)(1)(A) requires only that 

growth due to proposed sources, when 

considered together with the other plan 

provisions required under Section 172, 

be sufficient to ensure RFP toward 

attainment. Thus, unlike the control 

measures required by Section 172(c)(1) 

and (c)(6), major NSR is not a measure 

to reduce emissions to assure 

attainment; nor did Congress identify 

the program as a control measure to 

help areas achieve attainment ‘‘as 

expeditiously as practicable.’’ Rather, 

Congress intended that the effectiveness 

of major NSR in minimizing the impact 

of increased emissions should be 

considered together with the State’s 

other SIP measures to assure, consistent 

with Section 172(a)(2), that emissions 

from new sources will be consistent 

with RFP. Our interpretation is 

supported by the legislative record 

wherein Congress stated that

In allowing new sources to locate, and 

existing sources to expand, in presently 

unhealthy air areas, the committee realizes 

that some worsening of air quality or delay 

in actual attainment of the national ambient 

air standards will result. This is inevitable, 

as a result the committee had to accept as a 

consequence of allowing additional 

economic growth in these area. Id. at 214–

215.

Accordingly, based on our analysis of 

the statutory language and structure, 

and Congress’ purpose in creating the 

major NSR as a measure to mitigate 

emissions growth rather than a measure 

to reduce existing emissions levels, we 

conclude that Congress did not mean to 

include major NSR within the 

‘‘controls’’ that are required to be 

maintained in the SIP under our 

antibacksliding approach and Section 

172(e). 

We note that recent case law upheld 

the Agency’s approach of looking to 

Section 110 to determine the meaning of 

a similar phrase, ‘‘measures with respect 

to the control,’’ of pollutants in Section 

175A of the Act concerning 

maintenance plans.4 Greenbaum v. U.S. 

EPA, 370 F.3d 527, 536–37 (7th Cir. 

2004). In reviewing EPA’s determination 

that the phrase did not include 

nonattainment major NSR, the court 

found the phrase ambiguous, and stated:

It was entirely permissible, and indeed 

logical, for the EPA to look to § 110 to 

determine the meaning of the word 

‘‘measure’’ in § 175A as § 110 lists the 

provisions required to be included in a 

nonattainment SIP. 

Likewise, the EPA’s argument that the 

reference to the Part D NSR program in 

subparagraph C of § 110 [110(a)(2)(C)] would 

be surplusage if it were among the control 

measures mentioned in subparagraph A of 

§ 110 [110(a)(2)(A)] is reasonable.

The Court then deferred to EPA’s 

determination that the phrase did not 

include nonattainment major NSR, and 

thus that major NSR provisions need not 

be retained in contingency plans. Thus, 

although major NSR, when triggered, 

results in the requirement to impose 

LAER and the requirement to obtain 

offsetting emissions, neither of these 

requirements are considered a ‘‘measure 

with respect to the control’’ of the 

relevant NAAQS pollutant within the 

meaning of Section 175A. That is, it is 

not relevant for determining which 

former nonattainment SIP provisions 

States must include in contingency 

provisions. We believe this decision 

supports our determination that a 1-

hour major NSR program is not a 

‘‘control’’ measure within the meaning 

of Section 172(e). Accordingly, we find 

that the Act does not mandate that 

States retain the program under the 

antibacksliding approach implemented 

in transitioning from the 1-hour to the 

8-hour standard. 

Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 17023

5 In framing 173(d), Congress did not identify 

LAER as a control obligation. Instead, Congress 

clearly stated the purpose of including 173(d) was 

to make sure that the LAER control technology 

information is widely available. See The Clean Air 

Act Amendments of 1990–Hearings of H.R. 3030, 

101st Cong. at 226.

Petitioners cite EPA’s past 

characterization of major NSR in a 

Supreme Court brief and a Federal 

Register notice as a ‘‘pollution-control 

measure’’ and ‘‘pollution control 

technology program.’’ Pet. at 5 (June 29, 

2004) (quoting EPA Opening Merits 

Brief in Chevron, U.S.A. v. NRDC, S.Ct. 

82–1005 (Aug. 31, 1983), 1982 Lexis 

U.S. Briefs 1005, at n.5; accord, 67 FR 

80187 (Dec. 31 2002)). These citations 

are somewhat misleading, however, 

because petitioners isolate single 

phrases and ignore the broader context 

in which we wrote the words. The 

Supreme Court brief addresses whether 

EPA reasonably used a plantwide 

definition of ‘‘source’’ in the NSR 

program, and the quoted phrase occurs 

in the context of comparing the NSR 

and New Source Performance Standards 

(NSPS) programs. See Chevron U.S.A., 

Inc. v. NRDC, 1982 LEXIS Briefs 1005 at 

n.55 (Aug. 31, 1983). The Federal 

Register notice provision cited by 

Petitioners makes the statement in a 

background section generally describing 

the NSR program as a combination of an 

air quality planning and control 

technology program. In that same 

paragraph of the notice, we also stated 

that one of the program’s purposes is 

‘‘* * * to maximize opportunities for 

economic development consistent with 

the preservation of clean air resources.’’

Moreover, this alleged characterization 

has no persuasive value in interpreting 

the meaning of ‘‘controls’’ in Section 

172(e) nor the appropriateness of 

interpreting the Act as a whole with 

respect to backsliding because the cited 

brief and Federal Register notice do not 

address this issue, nor even touch on 

the subject of antibacksliding generally. 

Petitioners also reference a 1990 

House Report describing the Subpart 2 

classification system as a ‘‘graduated 

control program’’. Pet. at 7. That Report 

states:

Also included in the graduated control 

requirements are increasing offset ratios that 

require a greater level of pollution reductions 

from other sources in the nonattainment area 

to offset increases in pollution from new 

sources or modifications. This program is 

intended to allow economic growth and the 

development of new pollution sources and 

modifications to continue in seriously 

polluted areas, while assuring that emissions 

are actually reduced. H.R. Comm. on Energy 

and Commerce, The Clean Air Act 

Amendments of 1990—Hearings of H.R.

3030—101st Cong. 234 (May 17, 1990)

Read out of context, this legislative 

history could be interpreted to imply 

that Congress intended the higher offset 

requirements in subpart 2 to act as 

‘‘controls.’’ However, this language must 

be read in context of the statutory 

framework. 

First, 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 

benefits of offsets are uncertain. This is 

because States generally do not know in 

advance when and if any major 

stationary source will become subject to 

the major NSR offsetting requirements. 

Accordingly, as discussed further 

below, States do not use the higher 

offset ratios as a SIP control strategy 

within their attainment plans. But even 

if a State could project the number of 

sources that would trigger the offset 

requirement, the State, still could not 

necessarily rely on the higher emissions 

offset ratios to reduce emissions in the 

area. This is because, in Section 

173(c)(1), Congress allows a major 

stationary source to obtain offsets from 

other nonattainment areas. Such an area 

may be located in another State. In this 

context, offsets serve as a valuable tool 

in reducing regional pollutant transport, 

but may achieve no actual reductions in 

the area where the new emissions are 

locating. Accordingly, it would be 

inappropriate for a State to expressly 

rely on offsets as a State-imposed 

regulatory measure or ‘‘control’’ to 

achieve a defined quantity of emissions 

reductions from sources within the State 

for the purpose of reducing the existing 

emissions inventory. Based on this 

information, and because the legislative 

history does not address the issue of 

Congress’s intent in using the term 

‘‘controls’’ in Section 172(e), or the 

subject of antibacksliding generally, we 

conclude that it lacks persuasive value 

in interpreting the term ‘‘controls’’ in 

Section 172(e) or elsewhere in the Act.

Petitioners further claim that CAA 

Sections 173(d) and 173(a)(5), referring 

to lowest achievable emission reduction 

(LAER) requirements as a control 

technology and control technique, 

indicate NSR is a control measure. As 

we discuss in this proposed rule, the 

statute, our regulations, and our 

guidance have established NSR as a 

growth measure for SIP planning 

purposes. LAER is not a control 

measure, but instead is an emission 

limitation based on application of a 

particular control technology. Control 

measures such as reasonably available 

control technology (RACT), 

transportation control measures (TCM), 

and inspection and maintenance 

programs (I/M) reduce base year 

emissions to assure RFP and meet 

attainment. The LAER’s purpose is to 

minimize the amount of emissions 

increase resulting from new or modified 

major stationary sources, not reduce 

emissions below the base year 

inventory. CAA Sections 173(d) and 

173(a)(5) instead contain specific 

requirements related to LAER. CAA 

Section 173(d) requires States to report 

information on LAER to the RACT/

BACT/LAER Clearinghouse.5 CAA 

Section 173(a)(5) requires consideration 

of LAER in the alternative sites analysis.

While petitioners present a possible 

interpretation of the term ‘‘controls’’ as 

used by Congress in Section 172(e), we 

do not believe that the Statute compels 

this interpretation. Moreover, to accept 

the Petitioners’ interpretation would 

essentially define ‘‘controls’’ in a way 

that would require States to retain all 

requirements in a SIP upon relaxation of 

the standard. If Congress meant to 

require States to retain all requirements, 

Congress would have stated so 

expressly. Instead, by using only the 

term ‘‘controls,’’ Congress implied an 

intent that some requirements under the 

old standard would no longer apply 

under the new standard. We think it is 

reasonable to interpret the term 

‘‘controls’’ to exclude major NSR, whose 

purpose is to ensure that emissions 

growth does not interfere with 

attainment, and for which States can not 

reliably estimate the benefits of 

mitigating emissions increases for SIP 

planning purposes. 

C. No State’s Removal of 1-Hour Major 

NSR Requirements From the SIP Will 

Interfere With Any Applicable 

Requirement Under the Act Within the 

Meaning of Section 110(l) 

Section 110(l) provides us the legal 

authority to approve revisions to SIPs 

when we determine that such revisions 

will not ‘‘interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (as defined 

in section 171), or any other applicable 

requirement of the Act.’’ Petitioners 

suggest that Section 110(l) limits the 

Administrator’s ability to approve any 

change in a State SIP if that change 

would relax requirements previously 

contained in the SIP. We disagree. 

Rather, we interpret Section 110(l) to 

allow such changes if the revision is 

consistent with reasonable further 

progress, and will not interfere either 

with the area’s ability to achieve 

attainment or with any other 

requirement of the Act. 

17024 Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 

6We 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.

To determine whether a change in 

major NSR requirements could satisfy 

these criteria, we first reviewed the 

statutory role of major NSR. As 

discussed above, Congress designed the 

major NSR program to mitigate emission 

increases from economic growth—not as 

a program to generate emissions 

reductions to bring an area into 

attainment. Congress distinguished 

those ‘‘reasonably available control 

measures’’ required to bring an area into 

attainment ‘‘as expeditiously as 

practicable’’ as specified in Section 

172(c)(1) from the requirements of the 

major NSR program specified in Section 

172(c)(4) and (5). Moreover, Congress 

recognized in allowing for growth in 

nonattainment areas, that some 

worsening of air quality may be 

inevitable. Accordingly, States do not 

rely on major NSR to achieve emissions 

reductions and reach attainment as 

expeditiously as practicable and thus a 

change in the program will not interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress.

We also reviewed the role major NSR 

plays in State attainment planning. 

While we disagree with Petitioners’

assertion that the Section 110(l) analysis 

requires us to analyze changes relative 

to the 1-hour standard (after we revoke 

that standard), and we are not granting 

reconsideration on that issue, we 

nonetheless looked at the effect of 

removing the major NSR requirements 

on the State’s existing 1-hour attainment 

plans to determine what effect it may 

have for future planning under the 8-

hour standard. 

Before 1990, Congress provided States 

with two options for managing the 

impact of economic growth on 

emissions. A State could either provide 

a case-by-case review of each new or 

modified major source and require such 

source to obtain offsetting emissions, or 

the State could implement a waiver 

provision which allowed the State to 

develop an alternative to the case-bycase emissions offset requirement. This 

alternative program became known as 

the ‘‘growth allowance’’ approach. In 

1990, Congress invalidated some of the 

existing growth allowances and shifted 

the emphasis for managing growth from 

using growth allowances to using the 

case-by-case offset approach. 

Nonetheless, we still interpreted the 

inventory and SIP demonstration 

requirements in the Act to require States 

to continue to account for future growth 

in their demonstrations. See 57 FR 

13554, 13567. In this way, State SIPs 

analyze the impact of growth on 

emissions in two overlapping ways: (1) 

By establishing a growth projection in 

the attainment demonstration, and (2) 

by requiring major sources to comply 

with the major NSR requirements. 

In general, States use information 

from the Bureau of Economic Analysis 

(BEA) to derive growth factors which 

are then applied to different industrial 

categories to project emissions growth 

within the nonattainment area. Some 

States project growth based on industry 

data that is specific to their jurisdiction, 

rather than using national BEA data to 

project the source category increases. A 

few States project growth based on NOX

emissions caps imposed by SIPapproved regulations (e.g. NOX-SIP 

call). Finally, a few States project no 

point source growth based on SIPapproved rules that limit VOC and NOX

emissions in the area. Regardless of 

which process is used, each State 

arrives at a specific tonnage of 

emissions that represents the expected 

increase in emissions due to economic 

growth in the State. This growth 

projection represents increases in 

emissions that come from a variety of 

different activities such as major and 

minor modifications and increases in 

utilization at existing sources. The SIPs 

then provide sufficient emissions 

reductions to bring the areas into 

attainment and provide reasonable 

further progress even accounting for this 

projected growth.

The next critical question in 

determining what effect a change in the 

major NSR requirements might have is 

whether States adjust this growth 

projection based on applicability of the 

major NSR program. A survey of current 

nonattainment areas shows that in 

general States do not discount the 

growth projection based on an 

assumption of the quantity of emissions 

increases that may be ‘‘offset.’’ In fact, 

we discourage States from including 

offsets as a source of emissions 

reductions in the attainment model 

because of the difficulties in accurately 

predicting the number of sources that 

will trigger offset reductions and the 

number of offsets actually achieved. 

Moreover, the method used to derive the 

growth projection allows no 

consideration of the major stationary 

source thresholds that apply under the 

1-hour ozone classification. Finally, we 

are aware of only one district in 

California that discounts the growth 

projection assuming a LAER level of 

control in projecting emissions. 

However, this particular district also has 

a very stringent SIP-approved 

nonattainment major NSR rule in which 

LAER applies to all sources with 

potential to emit (PTE) greater than 1 lb/

day and offsets are required for all 

sources with PTE greater than 4 tpy 

VOC or NOX. A lower classification 

under the 8-hour standard than under 

the 1-hour standard thus would not 

change the number of sources in this 

district subject to LAER or offsets. 

Therefore, this district similarly did not 

rely on the major stationary source 

thresholds or the offset ratios that 

applied under the 1-hour classification 

as opposed to those that would apply 

under the 8-hour standard to assure RFP 

or attainment of the 1-hour standard.6

Once a State computes the growth 

projection, these emissions are added to 

the base year emissions inventory and 

used to project growth for rate of 

progress plan purposes, and to project 

growth through the attainment year in 

the attainment demonstration model. In 

the attainment demonstration model, 

States must demonstrate that other 

emissions reduction programs in the SIP 

will allow the area to reduce emissions 

over time to achieve attainment by the 

attainment date despite the economic 

growth. Furthermore, the State must 

also demonstrate that the phasing in of 

emission reductions over time is 

sufficient to achieve reasonable further 

progress toward attainment. This 

effectively means that whether or not 

major NSR applies to a given activity 

that increases emissions, the area is 

projected to reach attainment based on 

other control measures in the SIP. 

This information shows that States 

have not directly relied on the major 

NSR program as a control measure to 

achieve reductions and move the area 

toward attainment. For the 8-hour 

standard, States will generally account 

for growth in the same manner to show 

attainment of the 8-hour standard. The 

only change may be that some States 

rely on EPA’s Economic Growth 

Analysis System rather than BEA 

information, but these two systems are 

fundamentally similar in that they rely 

on economic forecasts to project growth 

in emissions. Accordingly, EPA 

concludes that the removal of 1-hour 

major NSR requirements from the SIP 

will not interfere with reasonable 

further progress or attainment in any 

area because all States’ attainment 

demonstrations will account for 

emissions increases related to growth 

within the attainment demonstration, 

and these projections will not differ 

based upon the major NSR program 

Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 17025

applicable to the area under its ozone 

classification.

Petitioners argue that if this logic is 

accepted, ‘‘a state could pluck out any 

other requirement (including 

requirements such as enhanced I/M or 

stage II) * * * and argue that the 

requirement is dispensable in light of 

the area’s attainment and RFP plans.’’

Pet. at 12. We disagree that our logic as 

described here would lead to the same 

conclusion for all programs, because 

States rely on these other programs to 

generate emissions reductions in the 

modeling demonstration. Nonetheless, 

we agree with Petitioners that Congress 

‘‘prescribed specific program elements 

like NSR’’ and each State must show 

how these statutory requirements are 

being met through their SIP programs. 

Id. 

States satisfy this requirement by 

having the authority to issue permits in 

8-hour nonattainment areas consistent 

with the requirements of major NSR for 

the 8-hour standard. Major NSR plays a 

role in assuring that growth from major 

stationary sources occurs consistent 

with States’ plans for meeting 

reasonable further progress and reaching 

attainment. In 1990, Congress 

recognized that some States were not 

accurately predicting the growth within 

their attainment demonstrations. 

Accordingly, in Subpart 2 of the Act, 

Congress specified that areas with more 

severe ozone nonattainment problems 

should implement higher offset ratios 

and lower major stationary source 

thresholds. Likewise, we followed the 

same approach for the 8-hour standard 

by basing the major NSR requirements 

on the severity of the area’s 8-hour 

ozone nonattainment problem. As a 

policy matter, we believe that it is 

appropriate to look at areas’ present day 

air quality in determining what major 

NSR program requirements are 

necessary to assure future air quality 

improvements, because an area’s ability 

to accommodate economic growth is 

related to its current air quality 

conditions. An area’s classification 

under the 8-hour standard is a more 

accurate reflection of current day air 

quality then the classification we 

assigned under a different standard as 

far back as the early 1990’s. 

Together, the growth projection 

methods used in preparing attainment 

demonstrations and the 8-hour major 

NSR program requirements provide 

overlapping assurance that removing the 

1-hour major NSR program from the SIP, 

will not ‘‘interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (as defined 

in section 171), or any other applicable 

requirement of the Act.’’

D. Request for Comment 

For the reasons discussed in this 

section, we continue to assert that at the 

time 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. 

Instead, States must have authority to 

issue major NSR permits consistent with 

the requirements that are associated 

with the area’s designation and 

classification under the 8-hour standard. 

For the reasons discussed in this 

section, we also continue to assert, 

based on section 110(l) of the Act, that 

removing the 1-hour nonattainment 

major NSR program will not interfere 

with any State’s ability to achieve 

attainment of the 8-hour standard and 

will be consistent with RFP. 

We request comment on 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, and on our 

interpretation that the term ‘‘control’’ as 

used in Section 172(e) of the Act does 

not include major NSR requirements. 

We also request comment on 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. We specifically 

request comment on our discussion 

regarding State and local agency 

emission projections used for RFP and 

attainment, including whether the 

statements we have made regarding 

those emission projections are accurate. 

We also request specific 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 plan or 

attainment demonstration.

V. Statutory and Executive Order 

Reviews 

On April 30, 2004, we took final 

action on key elements of the program 

to implement the 8-hour NAAQS, 

including applicability of the 

nonattainment major NSR programs 

under the 8-hour ozone NAAQS. In that 

action, we did not revise the 

nonattainment major NSR regulations. 

With today’s action we are also 

proposing no changes to the 

nonattainment major NSR rules. 

However, we are seeking additional 

comments on some of the provisions 

finalized in the April 2004 Federal 

Register notice (69 FR 23951). 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), 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 proposed rule is not a 

‘‘significant regulatory action.’’ Today’s 

reconsideration notice 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 

interprets the requirements to develop 

State or tribal implementation plans to 

satisfy the statutory requirements for 

major NSR. We are not imposing 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 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 

17026 Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 

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), as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act of 

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

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis 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 proposed rule 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 proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule will not 

impose any requirements on small 

entities. The Phase 1 Rule addressed key 

elements of the program to implement 

the 8-hour ozone NAAQS, including the 

obligations under the major NSR 

program. This reconsideration notice 

addresses the statutory obligations for 

States and Tribes to implement the 

major NSR program for the 8-hour ozone 

NAAQS. For the same reasons that we 

concluded that the Phase 1 Rule will not 

have a significant economic impact on 

a substantial number of small entities, 

we conclude that our further action on 

aspects of that rule also not have a 

significant impact on small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Pub. L. 

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 1 Rule we 

determined that this proposed rule 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 1 Rule is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. For 

the same reasons stated when we 

promulgated the Phase I Rule, we 

conclude that the issues addressed in 

this notice on reconsideration of an 

aspect of that rule is not subject to the 

UMRA.

EPA also determined that this rule 

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, August 10, 

1999), 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 proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule 

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 rule 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 rule. 

Nonetheless, in the spirit of Executive 

Order 13132, and consistent with EPA 

policy to promote communications 

between EPA and State and local 

governments, EPA specifically solicits 

comment on this proposed rule from 

State and local officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Proposed Rules 17027

regulatory policies that have tribal 

implications.’’ This proposed rule does 

not have ‘‘tribal implications,’’ as 

specified in Executive Order 13175. The 

purpose of this proposed rule is to seek 

comment on EPA’s reconsideration of 

an aspect of the Phase 1 8-hour ozone 

rule specifying the statutory obligations 

of States and Tribes in implementing 

the major NSR program in 8-hour ozone 

nonattainment areas. 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 1 Rule, we conclude 

that this proposed rule 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 rule 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 rule. 

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, 

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 

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 proposed rule relates to 

reconsideration of one aspect of the 

Phase 1 Rule to implement the 8-hour 

ozone NAAQS. For the same reasons 

stated with respect to the Phase 1 Rule, 

we do not believe the Rule, or this 

reconsideration notice, is subject to 

Executive Order 13045. The Phase 1 

Rule implements a previously 

promulgated 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 rule 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 (May 

22, 2001)) 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), Pub. L. 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 proposed rule 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 1 

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 proposed 

rule provides a framework for 

improving environmental quality and 

reducing health risks for areas that may 

be designated nonattainment. 

VI. 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)).

List of Subjects in 40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Nitrogen oxides, 

Ozone, Volatile organic compounds.

Dated: March 25, 2005. 

Jeffrey Holmstead, 

Assistant Administrator for Office of Air and 

Radiation.

[FR Doc. 05–6630 Filed 4–1–05; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R03–OAR–2005–PA–0002; FRL–7894–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; VOC and NOX RACT 

Determinations for Three Individual 

Sources

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes to approve the 

State Implementation Plan (SIP) 

revision submitted by the 

Commonwealth of Pennsylvania for the 

purpose of establishing and requiring 

reasonably available control technology 

(RACT) for three major sources of 

volatile organic compounds (VOC) and 

nitrogen oxides (NOX). In the Final 

Rules section of this Federal Register,