

[Federal Register: September 13, 2007 (Volume 72, Number 177)]
[Proposed Rules]               
[Page 52320-52324]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13se07-18]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2006-0976; FRL-8467-4]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; Oxides of Nitrogen Budget Trading Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve Ohio's request to permanently 
retire 240 oxides of nitrogen (NOX) allowances from the 
State's 2005 new source set aside, which would otherwise have been 
distributed to existing sources that are required participants in the 
State of Ohio's NOX budget. Under the Federal NOX 
Budget Trading Program, each participating state receives a main pool 
of `allowances', which are credits that permit a source to emit one ton 
of NOX per allowance. Allowances are apportioned state-wide 
to electricity generating units and other large NOX sources 
which are subject to the budget trading program. Each year, a certain 
number of allowances are set aside from the main pool by the State, 
specifically for use by any new sources subject to the trading program 
which may come

[[Page 52321]]

on-line during that year. If no new sources are created, and no new 
source set aside allowances are used, the new source set aside 
allowances are returned to the main pool of allowances for use the 
following year.
    Retiring 240 new source set aside allowances will provide surplus 
emission reductions to help compensate for the discontinuation of 
Ohio's `E-Check' motor vehicle inspection and maintenance (I/M) program 
in the Cincinnati and Dayton areas for the year 2006 (Ohio is in the 
process of seeking approval of the removal of E-Check from the State 
Implementation Plan (SIP), which will be addressed in a separate 
action). Withholding and permanently retiring 240 new source set aside 
allowances from the year 2006 control period will provide 240 tons of 
surplus NOX emission reductions that are creditable for 
replacing reductions that otherwise would have occurred from the E-
Check program during the 2006 ozone season.

DATES: Comments must be received on or before October 15, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0976, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
    2. E-mail: mooney.john@epa.gov.
    3. Fax: (312) 886-5824.
    4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such 
deliveries are only accepted during the Regional Office normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information. The Regional Office official hours of business are 
Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2006-0976. 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.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov 

your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental Protection 

Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We 
recommend that you telephone Anthony Maietta, Life Scientist, at (312) 
353-8777 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Anthony Maietta, Life Scientist, 
Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-8777, maietta.anthony@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. Does this proposed rule apply to me?
III. Background
    A. Why has the State requested revisions to this rule?
    B. When did the State submit the requested rule revisions to 
EPA?
    C. When did the State adopt these rule revisions, and have they 
become effective?
    D. When were public hearings held?
    E. What comments did the State receive, and how did the State 
respond?
IV. Review of the State's Submittal
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. Does this proposed rule apply to me?

    This proposed rule affects electrical generation units (EGUs) as 
well as large boilers which are subject to Ohio's NOX budget 
trading program and are not considered to be ``new'' units under the 
guidelines of the trading program. Affected units will not receive 
certain excess new unit set aside allowances for the year 2006.

III. Background

A. Why has the State requested revisions to this rule?

    On December 31, 2005, Ohio discontinued the motor vehicle 
inspection and maintenance (I/M) programs, otherwise known as E-Check, 
in the Cincinnati and Dayton areas. According to section 110(l) of the 
Clean Air Act, EPA may not approve the

[[Page 52322]]

discontinuation of this program unless the State can demonstrate that 
the revision will not interfere with attainment of the health-based 
National Ambient Air Quality Standards. For this purpose, Ohio is 
providing emission reductions that compensate for the emission increase 
expected to result from discontinuation of E-Check. It should be noted 
that Ohio is currently seeking approval of the removal of E-Check from 
the SIP, which will be addressed in a separate rulemaking.
    As compensation for the emissions reductions lost through the 
discontinuation of E-Check, Ohio adopted requirements for low-
volatility gasoline and requirements for lower emissions from gas cans, 
solvent degreasing, and automobile refinishing. EPA approved the gas 
can, solvent degreasing, and automobile refinishing measures in a 
rulemaking action published on March 30, 2007, (72 FR 15045). The 
lower-volatility gasoline requirement was originally intended to be 
implemented in 2006, but was delayed until June 2008. (For more 
information see rulemaking published on May 25, 2007, at 72 FR 29269).
    Without the low-volatility gasoline program to compensate for 
emissions in 2006 resulting from discontinuation of E-Check, Ohio asked 
EPA, in a May 6, 2005, letter, if emission control devices that were 
installed on various power plants around the Cincinnati-Dayton area 
could provide the compensatory NOX emissions reduction. In 
our response, dated September 20, 2005, EPA noted that, while the 
reductions clearly occurred and clearly provide both local and regional 
air quality benefits, these actions would not be considered surplus 
emission reductions because these reductions would have occurred anyway 
through regular implementation of the Regional NOX Budget 
Trading Program, otherwise known as the NOX SIP Call.
    The NOX SIP Call created a market-based cap and trade 
program to reduce NOX emissions from power plants and other 
large sources across the Eastern half of the United States. The program 
is designed to allow states to have greater flexibility to achieve 
state-wide emission reductions with local as well as regional benefits. 
Because the NOX SIP Call garners reductions which are not 
source-specific, Ohio does not have the ability to decide exactly where 
reductions will take place.
    However, we noted that if Ohio were to withdraw and retire new 
source set aside allowances, this action would yield surplus 
reductions. By retiring new source set aside allowances that would 
otherwise have been redistributed the following year for use by 
existing sources subject to the trading program, Ohio has mandated a 
reduction in emissions that EPA considers surplus reductions beyond the 
reductions of the existing NOX SIP Call.
    Ohio adopted changes to Ohio Administrative Code (OAC) Chapters 
3745-72-01 and 3745-14-05, and submitted them for approval on October 
11, 2006. These rules provide a revised start date for the use of low-
volatility gasoline and provide the necessary quantity of interim, 
surplus NOX emission reductions through the permanent 
retirement of new source set aside allowances from the State's 
NOX budget trading program.
    Withholding and retiring new source set aside allowances from the 
year 2005 ensured that these allowances would not return to existing 
NOX budget trading program sources in 2006, therefore 
providing surplus emission reductions for 2006. As indicated above, the 
portion of the submittal concerning low-volatility gasoline has been 
addressed by EPA in a separate rulemaking action.

B. When did the State submit the requested rule revisions to EPA?

    The Director of the Ohio Environmental Protection Agency (Ohio EPA) 
submitted a request for EPA to approve revisions to OAC 3745-14-05 
(NOX allowance allocations) in a letter dated October 11, 
2006.

C. When did the State adopt these rule revisions, and have they become 
effective?

    The proposed rule language was filed as an emergency rule on April 
24, 2006. A proposed permanent adoption package for this rule was filed 
the same day. The Director of the Ohio Environmental Protection Agency 
issued an order of adoption for permanent revisions to OAC 3745-14-05 
on July 10, 2006. The effective date of this order was July 17, 2006. 
EPA is rulemaking on the permanent rule revisions and is not acting on 
the emergency rules.

D. When were public hearings held?

    A public hearing on revisions to OAC 3745-14-05 was held on June 2, 
2006, in Columbus, Ohio.

E. What comments did the State receive, and how did the State respond?

    A commenter questioned the necessity of amending OAC rule 3745-14-
05; the commenter stated that the Cincinnati/Dayton area had already 
monitored attainment, so meeting anti-backsliding regulations is not 
necessary. Ohio EPA disagreed with the commenter, noting that the 
Cincinnati area may still be monitoring nonattainment air quality at 
four sites. Also, OEPA noted that the anti-backsliding elements of the 
areas' 1-hour ozone nonattainment requirements cannot be removed; 
therefore the State's proposed rule revisions are, in fact, necessary.
    A commenter representing Buckeye Power, Inc., Columbus Southern 
Power Company, Dayton Power & Light Company, Duke Energy, Ohio Power 
Company, and Ohio Valley Electric Corporation (hereafter described as 
the `Utilities') objected to the proposed rule revisions because local 
reductions were being realized by applying regional reductions to 
NOX budgets, which wouldn't necessarily have local benefit 
to the Cincinnati/Dayton areas. Ohio EPA responded by noting that air 
quality modeling indicates that the optimum scenario for reducing ozone 
in the Cincinnati/Dayton areas is a combination of regional 
NOX reductions coupled with local VOC reductions. Ohio EPA 
also noted that EPA had commented on the regionalism of the retired new 
source set aside allowances.
    The `Utilities' believe that withdrawal and retirement of 240 new 
source set aside allowances undermines the stability of the regional 
NOX trading program. Ohio EPA disagreed, and noted that the 
retired allowances were set aside, and unused, by new sources in the 
specified time period, and that such a small amount of retired new 
source set aside allowances would not have an impact on the budget 
trading program.
    The `Utilities' commented that they believe the retirement of 
NOX allowances is unlawful under Ohio statute, and that the 
Ohio EPA has no authority to retire or otherwise remove allowances from 
the pool. Ohio EPA disagreed, noting that they have indeed had the 
authority to retire or remove allowances since the program's inception 
in 2002. Additionally, Ohio EPA found it important to make clear that a 
NOX budget allowance does not constitute a property right.
    The `Utilities' commented that they believe retiring allowances 
will not create emission reductions because sources can simply purchase 
more allowances from anywhere in the U.S. at the end of the ozone 
season. Ohio EPA responded by noting that the point of the 
NOX Budget Trading Program is not to limit individual 
sources, but to limit regional emissions, which-as they had already 
stated-will benefit Cincinnati and Dayton.

[[Page 52323]]

    The `Utilities' comment that they had provided Ohio EPA with an 
alternative proposal for emission reductions in 2005, but Ohio EPA 
chose not to adopt the proposal. Ohio EPA responded by noting that the 
utilities' proposal to reduce emissions through compliance with the 
NOX Budget Trading Program could not be considered to garner 
surplus emissions unless allowances were retired to make those 
reductions surplus. Ohio EPA noted that the utilities did not appear to 
be willing to retire the associated allowances.
    A commenter representing American Municipal Power (AMP) Ohio stated 
that Ohio EPA had not demonstrated that low-RVP gasoline was not 
available for the 2006 ozone season. Ohio EPA responded by noting the 
multitude of issues which caused it to conclude that institution of 7.8 
RVP fuel was not an option for the 2006 ozone season. The reasons 
included a U.S. EPA survey indicating that refinery production 
capabilities for 7.8 RVP gasoline would fall short for the Cincinnati 
and Dayton areas, as well as lack of a preemption waiver from U.S. EPA 
allowing the adoption of low-RVP fuel. Additionally, Ohio EPA noted 
that if it were to allow noncompliant fuel into the area, compliant 
suppliers providing low-RVP fuel would be at a disadvantage.
    A commenter representing AMP Ohio stated that the Ohio EPA targeted 
NOX budget sources for NOX reductions without 
fully evaluating other appropriate reduction sources. Ohio EPA 
disagreed, noting that prior to establishing the RVP fuel program for 
Cincinnati and Dayton, they fully evaluated numerous control strategies 
to offset the emissions reduction shortfall that resulted from closing 
the E-Check program.
    A commenter representing the Ohio Manufacturers' Association (OMA) 
stated that Ohio's manufacturing sector only represents 7% of the 
state's total NOX emissions, yet the manufacturing sector is 
being called on to, in their own words, ``solve the problem''. Ohio EPA 
noted that the effect of retiring 240 allowances on non-EGU's would be 
very small for a one-time allocation adjustment. Ohio EPA noted that 15 
non-EGU's are participating in Ohio's NOX trading program, 
and two of those units are shut down. Furthermore, of the 240 
allowances being retired, non-EGU's represent 19 of the 240 allowances 
spread across the 15 non-EGU facilities whether still in operation or 
not.

IV. Review of the State's Submittal

    The State of Ohio has adopted revisions to its NOX 
budget trading program regulations. On October 11, 2006, the State 
requested that EPA approve these rule revisions for incorporation into 
Ohio's SIP. Specifically, Ohio's revisions to this rule are:
    OAC 3745-14-05 (C)(7):
    Ohio inserted this new paragraph which withholds and permanently 
retires 240 new source set aside allowances from the 2005 control 
period to offset emission increases associated with the termination of 
the E-Check program in Cincinnati and Dayton. These withheld and 
retired allowances would normally have been allocated to existing Ohio 
NOX budget sources in 2006.
    On February 23, 2007, Ohio supplemented its submittal with 
information regarding NOX emission reductions that have 
occurred in the Cincinnati/Dayton area. This letter identifies several 
actions that substantially reduced NOX emissions starting 
from before the 2006 ozone season, which include installation of 
selective catalytic reduction controls at 3 units and installation of 
low NOX burners at 9 other units. Ohio estimates that the 
total emission reduction from these actions is over 10,000 tons per 
ozone season.
    In ordinary circumstances, an emission limit can be imposed on a 
specific source, and the surplus emission reduction clearly occurs at 
the location of that source. However, a different relationship between 
regulatory action and resulting emission reductions applies to power 
plants and other sources regulated under the NOX SIP Call. 
The NOX SIP Call provides a restricted set of allowances 
that allow a reduced quantity of NOX emissions across the 
entire NOX SIP Call region, while maximizing the flexibility 
of participants in the program to decide where these reductions will 
occur. In particular, allowances may be bought and sold and used 
anywhere in the NOX SIP Call region. Since the allowances 
are not assigned to particular locations, Ohio posed the question to 
EPA of how best to pursue utility emission reductions in the 
Cincinnati/Dayton area to obtain creditable reductions. EPA responded 
that reductions at utilities could not be considered surplus to the 
NOX SIP Call unless Ohio provided for retirement of 
allowances, but EPA added that Ohio had substantial flexibility in what 
allowances to retire.
    Ohio's action creates a surplus reduction of 240 tons of 
NOX emissions. This action fully conforms with EPA 
regulations concerning the NOX SIP Call and other relevant 
regulations, and so this action is fully approvable. More at issue is 
whether this action may be treated as fully offsetting the loss of 240 
tons of NOX emission reductions (or its VOC equivalent) from 
the discontinuation of E-Check in the Cincinnati and Dayton areas.
    An important underpinning of the NOX SIP Call is the 
interchangeability of emission reductions, i.e. a finding that the 
impacts of the emissions are sufficiently regional in nature and 
sufficiently insensitive to the spatial distribution of the emission 
reductions that EPA need not restrict where allowances are used. This 
finding underlying the NOX SIP Call has important 
implications for Ohio's action in retiring allowances. EPA believes 
that Ohio's retirement of 240 allowances may be credited to make 240 
tons of the actual emission reductions occurring in the Cincinnati/
Dayton area surplus. We find that the retirement benefits Cincinnati/
Dayton air quality, and is reasonable under the circumstances, 
including the actual emissions reductions in the area.
    EPA believes that Ohio may reasonably assign the surplus reductions 
it has mandated to actual emission reductions that have occurred in the 
Cincinnati/Dayton area. Allowances have no inherent geographic 
location. That is, the allowances have no inherent properties that 
dictate the location of the emission reduction that is attributed to a 
particular retirement of a particular allowance. Substantial emission 
reductions have occurred in the Cincinnati/Dayton area. While most of 
the reductions would be attributable to the NOX SIP Call, 
EPA believes that Ohio has latitude to attribute 240 tons of the 2006 
NOX emission reductions in the Cincinnati/Dayton area to its 
retirement of 240 allowances. Furthermore, even if Ohio or EPA were to 
associate the allowance retirement with emission reductions in a 
geographically broader area, EPA believes that the corresponding air 
quality benefit in the Cincinnati/Dayton area would be similar to the 
benefit of 240 tons of NOX emission reductions within the 
Cincinnati/Dayton area. Indeed, the regional influence of 
NOX emissions is the fundamental basis for EPA to establish 
the NOX trading program as a regional program without 
restriction on where (within the trading area) allowances may be used.
    EPA views Ohio as having made surplus 240 tons of the emission 
reductions in 2006. The surplus reductions that result from this 
retirement provide significant benefit to the Cincinnati/Dayton area, 
and it is reasonable to assign 240 tons of NOX emission 
reductions credit to the

[[Page 52324]]

Cincinnati/Dayton area, and to count 240 tons of the area's actual 
reductions as attributable to the retirement of 240 allowances. 
Therefore, EPA proposes to approve this rule change, and to conclude 
that Ohio has provided compensatory emissions decreases for 
discontinuing the E-Check program in this area in the amount of 240 
tons of NOX emission reduction for the year 2006.
    EPA received a January 12, 2007, letter commenting on this issue 
from a law firm on behalf of the Environmental Committee of the Ohio 
Electric Utility Institute. This law firm submitted additional comments 
on February 15, 2007, and on March 13, 2007. EPA views these letters as 
commenting on the action being proposed here. EPA will review these 
comments, and address any comments it receives during the comment 
period, as we prepare final rulemaking on Ohio's submittal.
    OAC 3745-14-05 (C)(8) through (C)(10):
    Ohio renumbered the existing paragraphs (C)(7) through (C)(9) to 
(C)(8) through (C)(10), in order to accommodate the inclusion of the 
new paragraph (C)(7). As the addition of a new paragraph (C)(7) 
necessitates renumbering the existing paragraphs, we find this rule 
change to be acceptable and approvable.

V. What action is EPA taking?

    EPA is proposing to approve the addition of paragraph (C)(7) to OAC 
3745-14-05, and its incorporation into the Ohio SIP, as adopted by the 
State of Ohio, as defined in Ohio's October 11, 2006, submittal. EPA is 
also proposing to approve the renumbering of the original OAC 3745-14-
05 paragraphs (C)(7) through (C)(9) to (C)(8) through (C)(10), 
respectively. If EPA takes final action as proposed here, EPA would 
then retire 240 allowances from Ohio's new source set aside as 
instructed in this rule. EPA proposes to conclude that Ohio has thereby 
provided compensatory emissions decreases for discontinuing the E-Check 
program in this area in the amount of 240 tons of NOX 
emission reduction for the year 2006.

VI. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, September 30, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

    This proposed 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.).

Regulatory Flexibility Act

    This proposed action merely proposes to approve state law as 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by state law. Accordingly, the Administrator 
certifies that this proposed 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.).

Unfunded Mandates Reform Act

    Because this rule proposes to approve 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 (Pub. L. 104-4).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does 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). This action merely proposes to approve 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.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This proposed rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant regulatory action,'' this 
action is also not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impractical. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. Absent a 
prior existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a SIP submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program submission that otherwise satisfies the provisions of the 
Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA 
do not apply.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Reporting and recordkeeping requirements.

    Dated: September 4, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E7-18061 Filed 9-12-07; 8:45 am]

BILLING CODE 6560-50-P
