Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document, the terms “we,” “us,” and “our” refer to EPA.
Section 110(a)(1) of the CAA requires each state to submit to EPA, within three years (or such shorter period as the Administrator may prescribe) after the promulgation of a primary or secondary NAAQS or any revision thereof, a SIP that provides for the “implementation, maintenance, and enforcement” of such NAAQS. EPA refers to these specific submissions as “infrastructure” SIPs because they are intended to address basic structural SIP requirements for new or revised NAAQS.
On July 18, 1997, EPA issued a revised NAAQS for ozone
On August 3, 2012 (77 FR 46361), EPA proposed to approve in part and disapprove in part several SIP revisions and one proposed SIP revision submitted by Nevada Division of Environmental Protection (NDEP) to address the infrastructure requirements of CAA section 110(a)(1) and (2) for the 1997 ozone, 1997 PM
We are taking final action on all five submittals since they collectively
The rationale supporting EPA's action, including the scope of infrastructure SIPs in general, is explained in our August 3, 2012 Notice of Proposed Rulemaking (proposed rule) and the three associated technical support documents (TSDs)
The public comment period on EPA's proposed rule opened on August 3, 2012, the date of its publication in the
NDEP's comment letter numbers its comments 1 through 9. NDEP comment numbers 1 through 3 support various aspects of EPA's proposed rule, while numbers 4 through 9 request clarification on several points. Washoe County's comment letter generally supports EPA's proposed rule with two exceptions, which it numbers 1 and 2, and requests that EPA make a clarification on one additional point. We appreciate NDEP and Washoe County's comments in support for our proposed rule and respond to their comments regarding requested clarifications and corrections below. Note that we have grouped comments from NDEP and Washoe County that are similar in content into single comments and responses.
NDEP's comment number 4 and Washoe County comment number 1 note that EPA proposes to disapprove the portion of the SIP related to prevention of significant deterioration (PSD) permit programs for NDEP and Washoe County because the programs do not completely satisfy the statutory and regulatory requirements for PSD permit programs. NDEP and WCHD-AQMD also note, however, that EPA recognizes that the deficiencies related to the PSD programs are adequately addressed by the existing federal implementation plan (FIP), for which EPA has delegated enforcement authority to NDEP and Washoe County. Moreover, NDEP argues that the provisions of 40 CFR 52.1485(b), which codify the PSD FIP by incorporating EPA's PSD provisions in the Nevada SIP, make EPA's PSD FIP a part of the SIP, with the exception of the portion applicable to Clark County. As such, NDEP and WCHD-AQMD believe that the elements of the Nevada SIP related to PSD programs under their jurisdictions should be approved.
The CAA requires each State to adopt and submit a plan which provides for implementation, maintenance, and enforcement of the NAAQS.
EPA's authority to promulgate a FIP derives from EPA's determination that a State has failed to submit a complete, required SIP submission or from EPA's disapproval of a State submission of a SIP or SIP revision.
In 1974, EPA disapproved each state's SIP with respect to PSD and promulgated a FIP as a substitute for the SIP deficiency (“PSD FIP”).
NDEP's comment number 6 and Washoe County comment number 2 state that NDEP and Washoe County Health District AQMD “[do] not believe that the PSD program as it relates to greenhouse gases renders this SIP deficient with respect to ozone and PM
The PSD requirements for the regulation of greenhouse gases are relevant to our evaluation of SIPs submitted with respect to the ozone and PM
NDEP's comment number 5 states that “EPA proposes to partially disapprove the NDEP's submittal [with respect to the `good neighbor' requirements of CAA section 110(a)(2)(D)(i)(I)], stating that it is not relevant, and to partially approve the submittal based on EPA's independent evaluation of Nevada's impact on receptor states.” NDEP stated its belief that “it would be simpler not to do a partial disapproval based on information that EPA deemed immaterial to its decision-making, but rather to fully approve the SIP based on EPA's own data analysis demonstrating a lack of impacts on receptor states.”
We disagree. EPA proposed to partially disapprove Nevada's 2009 PM
Specifically, as discussed in the Transport TSD for this proposal, Nevada's 2009 PM
As explained in the Transport TSD, EPA does not agree with NDEP's suggestion or conclusion in the 2009 SIP Submittals that EPA's previous approval of Nevada's section 110(a)(2)(D)(i) interstate transport SIP for the 1997 8-hour ozone NAAQS and the 1997 p.m.
Given the absence of any technical demonstration in the State's submission showing that Nevada emission sources do not significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM
NDEP comment number 8 recommends several corrections and clarifications to the text of our Transport TSD. We respond to each sub-comment following separate comment summaries below.
First, citing pages 7 and 11 of our Transport TSD, NDEP states that “EPA has characterized Idaho as more distant from Nevada than Utah, Oregon and California” but notes that Nevada and Idaho share a border.
We agree that our Transport TSD could have better characterized the location of Idaho relative to Nevada and the distance from Nevada to nonattainment receptors in Idaho relative to those in “other western states” (i.e., Washington and Montana,
Second, citing page 16 of the Transport TSD, NDEP encourages EPA to expressly state that “EPA's analysis shows no significant contribution by Nevada to nonattainment in the Southern California area.”
In Section IV.B.3. of our Transport TSD (see pages 15-16), regarding nonattainment receptors in California, for four of the five areas discussed we stated that “we believe it is reasonable to conclude that emissions from Nevada sources do not significantly contribute to nonattainment of the 2006 24-hour PM
Third, citing pages 20-22 of the Transport TSD, NDEP states that “EPA reaches a conclusion that Nevada emissions do not interfere with maintenance of the 2006 p.m.
We agree and are clarifying our conclusion that emissions from Nevada sources do not interfere with maintenance of the 2006 24-hour PM
Fourth, NDEP asserts that EPA's discussion on pages 20-22 of the Transport TSD “appears to talk about
It appears NDEP has misunderstood a distinction that EPA is making between nonattainment or maintenance
Fifth, NDEP states that “Table III.A.1 lists Utah as having no maintenance areas, so the NDEP is uncertain why Utah is discussed in section V of this Appendix” and that “[t]he discussion of nonattainment areas in Utah (Section IV.B.1.) appears to be repeated in Section V.B.3 for maintenance receptors.” NDEP perceives a discrepancy therein.
We disagree that Table III.A.1 (“List of Western Counties with Daily PM
NDEP comment number 7 addresses EPA's statements in the Overarching TSD (pages 11-13) regarding certain provisions that are part of the Nevada SIP, but have been repealed or replaced in the Nevada Administrative Code (NAC). NDEP highlights that such regulations “have not been rescinded from the Nevada SIP, and EPA considers them to be federally enforceable” and suggests that a more accurate characterization would be to say that such provisions “have been repealed or replaced in the NAC, but not in the SIP.”
It is true that the regulations cited in pages 11-13 of our Overarching TSD having parenthetical notes about replacement or repeal can be accurately characterized as having been repealed or replaced in the NAC (i.e., at the state level), but remaining in the Nevada SIP (i.e., the set of federally enforceable provisions with respect to Nevada air quality). In part, our intent was to clarify the status of these provisions so that the public could more readily understand which provisions are in effect and to identify certain provisions that, as repealed or replaced (but not revised in the SIP), did not provide support for how Nevada meets the section 110(a)(2)(C) requirement that each SIP “include a program to provide for the enforcement of the measures described in [section 110(a)(2)(A)].”
However, the broader meaning of such clarifications and identifications relates to CAA section 110(a)(1), which requires the state to adopt and submit “a plan which provides for implementation, maintenance, and enforcement” of the relevant NAAQS (i.e., the 1997 ozone, 1997 PM
Our Overarching TSD discussed three provisions in particular wherein we noted that “it is not clear how Nevada intended that these regulations support the enforcement of the emission limitation regulations.”
NDEP comment number 9 recommends several corrections and clarifications to the text of our Overarching TSD. We respond to each sub-comment following separate comment summaries below.
First, NDEP notes that on page 6, footnote 9, the second sentence should read, “Adele Malone, Supervisor, Planning and Modeling Branch, * * * .” We thank NDEP for its clarification regarding the Branch title, which we had listed as “Air Planning Branch” in footnote 9 of the Overarching TSD.
Second, NDEP notes that on page 11 EPA listed Nevada Air Quality Regulation (NAQR) Article 220.127.116.11 and 18.104.22.168 as having been cited in support of CAA 110(a)(2)(C), and requests EPA to remove it from the list of submitted
To clarify further, Nevada's 2008 Ozone Submittal, 2008 PM
Third, NDEP notes a contradiction in the last sentence of the first full paragraph of page 43 regarding the PSD portion of the section 110(a)(2)(J) requirements and Clark County. We agree that this sentence contradicts our other stated conclusions regarding Clark County's PSD program and the PSD requirements of CAA section 110(a)(2)(J). We hereby clarify that our intended statement, as noted in the conclusion paragraph of that same page, was that “the Clark County portion of the Nevada SIP meets the PSD-related requirements of section 110(a)(2)(J), contingent upon final approval of the proposed SIP revisions [for permitting new or modified stationary sources in Clark County].” Furthermore, based on our final approval of those Clark County SIP revisions,
Fourth, NDEP believes that EPA had intended to reference NAQR Article 22.214.171.124(b) on page 45, rather than Article 126.96.36.199(b), and that the latter is not in the applicable Nevada SIP. NDEP also refers to 77 FR 14862. We referred to Article 188.8.131.52(b) with respect to the requirements of section 110(a)(2)(K) because it was included in Enclosure 2 of Nevada's 2008 Ozone Submittal, 2008 p.m.
Fifth, NDEP notes that Footnote 19 states that “ * * * NDEP repealed NAC 445.694 and did not submit a replacement for inclusion in the SIP.” NDEP states that this footnote was inaccurate since the authority to repeal a state regulation lies with the Nevada State Environmental Commission. We thank NDEP for its clarification. Footnote 19 of the Overarching TSD should have made clear that the State Environmental Commission is the body authorized under state law to adopt regulations to prevent, abate and control air pollution (NRS 445B.210), the Department of Conservation and Natural Resources is designated as the air pollution control agency for the State of Nevada for the purposes of the CAA (NRS 445B.205), and the Administrator of NDEP is the official designee of the Director of the Department of Conservation and Natural Resources for the purposes of the CAA, including, but not limited to, adoption, revision, and submittal of SIPs to EPA.
Washoe County notes a “minor correction/clarification that should be made” in EPA's Section 128 TSD on pages 4 and 7. Washoe County identifies the District Health Officer of the Washoe County Health District, or his designee, as the Control Officer, pursuant to Washoe County Air Quality Regulation (AQR) 010.042, rather than the AQMD Director, as stated in EPA's Section 128 TSD. The comment further states that the AQMD Director and Branch Chief are designees of the Control Officer and that the applicability of section 128 does not change and remains as “not applicable” because it “applies to boards and bodies composed of multiple individuals.”
EPA agrees that we should have identified the District Health Officer of Washoe County Health District as the Control Officer in Washoe County. Washoe County Air Quality Regulation (AQR) 010.042 defines “Control Officer” as the “District Health Officer of the Washoe County Health District or the person designated by said District Health Officer to enforce these local air pollution control ordinances and regulations as approved by said District Board of Health created pursuant to the interlocal agreement of the City of Reno, the City of Sparks, and the County of Washoe, Nevada.” AQR 020.020 (“Control Officer—Powers and Duties”) states that the “Control Officer, or his designated agent or representative, shall enforce the provisions of these [air pollution control] regulations.” From the context of Washoe County's comments and conversation with WCHD-AQMD staff, we understand the AQMD Director and Branch Chief to be designated agents or representatives of the Control Officer (i.e., the District Health Officer of the Washoe County Health District), pursuant to AQR 020.020.
We cited AQR 020.020 in our Section 128 TSD because it authorizes the Control Officer and his designated agents or representatives to issue corrective action orders (a kind of enforcement order). Thus, the Control Officer and his designated agents or representatives are subject to the requirements of section 128(a)(2). This reflects a point of distinction with respect to Washoe County's comment that the requirements of CAA section 128 are “not applicable” to the Control Officer or his agents or representatives. While we agree that section 128(a)(1) regarding
As a result, we have assessed whether the Washoe County District Health Officer is covered by Nevada's statutes concerning disclosure of potential conflicts of interest. As per NRS 281A.160.1, a public officer in Nevada is defined by two criteria: (a) that the person is appointed or elected to a position established by a charter or ordinance of any county, and (b) that his or her position “[i]nvolves the exercise of a public power, trust, or duty.” The District Health Officer is a public officer under these criteria because he or she is a person appointed to a position established by the Washoe County Code and because approval of permits or enforcement orders under state or county law involves an exercise of a public power, trust or duty.
Our determinations regarding disclosure as it relates to the AQMD Director and Branch Chief remain
Thus, our overall conclusion remains that the conflict of interest provisions
Under CAA section 110(k)(3), and based on the evaluation and rationale presented in the proposed rule, the related TSDs, and this final rule, EPA is approving in part and disapproving in part Nevada's Infrastructure SIP Submittals for the 1997 ozone, 1997 PM
EPA is approving Nevada's Infrastructure SIP Submittals with respect to the following requirements:
• Section 110(a)(2)(A): Emission limits and other control measures.
• Section 110(a)(2)(B): Ambient air quality monitoring/data system.
• Section 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new and modified stationary sources.
• Section 110(a)(2)(D)(i) (in part): Interstate pollution transport.
• Section 110(a)(2)(D)(ii) (in part): Interstate pollution abatement and international air pollution.
• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies.
• Section 110(a)(2)(F) (in part): Stationary source monitoring and reporting.
• Section 110(a)(2)(G): Emergency episodes.
• Section 110(a)(2)(H): SIP revisions.
• Section 110(a)(2)(J) (in part): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.
• Section 110(a)(2)(K) (in part): Air quality modeling and submission of modeling data.
• Section 110(a)(2)(L): Permitting fees.
• Section 110(a)(2)(M): Consultation/participation by affected local entities.
We are approving Nevada's Infrastructure SIP Submittals for the Clark County portions of the SIP with respect to the requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), 110(a)(2)(J), and 110(a)(2)(K) related to PSD based upon our final approval of certain SIP revisions for the review of new or modified stationary sources for the Clark County portion of the SIP.
For section 110(a)(2)(C), we are approving Nevada's Infrastructure SIP Submittals for all three jurisdictions (NDEP, Clark County, and Washoe County) with respect to the requirement that the SIP include a program to provide for enforcement of the emissions limitations described in section 110(a)(2)(A).
With respect to the requirement of CAA section 110(a)(2)(D)(i)(II) (regarding interference with other states' required measures to protect visibility), EPA previously approved Nevada's interstate transport SIP as satisfying this requirement for the 1997 ozone and 1997 PM
With respect to section 110(a)(2)(F), for the NDEP and Washoe County portions of the SIP, we are approving Nevada's Infrastructure SIP Submittals for all three subsections of section 110(a)(2)(F). We note that EPA has approved three Nevada Administrative Code (NAC) sections cited by NDEP in its 2012 Submittal, NAC sections 445B.315(3), 445B.3368, and 445B.346, in a separate rulemaking (
In connection with our approval, or partial approval, of Nevada's Infrastructure SIP Submittals for these requirements as listed above, we are approving into the Nevada SIP certain statutes and other materials, which were included in the 2009 PM
First, with respect to section 110(a)(2)(E)(i) (i.e., necessary assurances for adequate personnel, funding, and authority), EPA is approving an interlocal agreement among the Washoe County District Board of Health, Washoe County and the cities of Reno and Sparks concerning the Washoe County District Health Department, and a comprehensive revision to Section 12 (“Resources”) of the Nevada SIP. The interlocal agreement was submitted as Attachment D of Nevada's 2009 PM
Second, in connection with our approval of Nevada's Infrastructure SIP Submittals with respect to section 110(a)(2)(E)(ii) (i.e., State board conflict of interest requirements under CAA section 128), EPA is approving Nevada Revised Statutes (NRS) sections 232A.020, 281A.150, 281A.160, 281A.400, 281A.410, and 281A.420, as provided in Attachment B of Nevada's 2012 Submittal, into the Nevada SIP.
Third and last, in connection with our approval of Nevada's Infrastructure SIP Submittals with respect to section 110(a)(2)(J) (in part) and (M), EPA is approving a comprehensive revision to Section 11 (“Intergovernmental Consultation”) of the Nevada SIP, which is included as Attachment D to Nevada's 2012 Submittal. NDEP's 2012 revision to Section 11 hereby replaces, in its entirety, the former SIP version of Section 11, approved on May 31, 1972 (37 FR 10842), in the Nevada SIP.
Nevada's 2012 revision to Section 11 (“Intergovernmental Consultation”) cites a number of statutes. Two of these, NRS section 445B.503 and NRS section 439.390, are included as exhibits to Section 11 and are new to the SIP.
EPA is disapproving Nevada's Infrastructure SIP Submittals for the 1997 ozone, 1997 PM
• Section 110(a)(2)(C)(in part): Program for enforcement of control measures and regulation of new and modified stationary sources.
• Section 110(a)(2)(D)(i)(in part): Interstate pollution transport.
• Section 110(a)(2)(D)(ii)(in part): Interstate pollution abatement and international air pollution.
• Section 110(a)(2)(F)(in part): Stationary source monitoring and reporting.
• Section 110(a)(2)(J)(in part): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.
• Section 110(a)(2)(K)(in part): Air quality modeling and submission of modeling data.
As explained in our proposed rule and Overarching TSD, we are disapproving Nevada's Infrastructure SIP Submittals for the NDEP and Washoe County portions of the SIP with respect to the requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), 110(a)(2)(J), and 110(a)(2)(K) related to PSD because the Nevada SIP does not fully satisfy the statutory and regulatory requirements for PSD permit programs under part C of title I of the Act. Both NDEP and WCHD-AQMD currently implement the Federal PSD program in 40 CFR 52.21 for all regulated NSR pollutants, pursuant to delegation agreements with EPA.
With respect to the requirements regarding interstate transport in CAA section 110(a)(2)(D)(i)(I) for the 1997 ozone and 1997 PM
With respect to section 110(a)(2)(F), we are disapproving the Clark County portion of the SIP for subsection 110(a)(2)(F)(iii) because Clark County has repealed its regulation, Section 24, that formerly addressed the correlation requirement of this subsection, without submitting a SIP revision to replace it.
EPA takes a disapproval of a state plan very seriously. Rather than implement a FIP, we believe that it is preferable, and preferred in the provisions of the Clean Air Act, for states to implement the CAA requirements through state provisions that are developed and adopted by the state and approved into the SIP by EPA. A state plan need not contain exactly the same provisions that EPA might require, but EPA must be able to find that the state plan is consistent with the requirements of the Act in accordance with its obligations under section 110(k). Further, EPA's oversight role requires that it assure consistent implementation of Clean Air Act requirements by states across the country, even while acknowledging that individual decisions from source to source or state to state may not have identical outcomes. EPA believes these disapprovals are the only path that is consistent with the Act at this time.
Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of part D of title I of the CAA (CAA sections 171-193) or is required in response to a finding of substantial inadequacy as described in
In addition, CAA section 110(c)(1) provides that EPA must promulgate a Federal Implementation Plan (FIP) within two years after finding that a State has failed to make a required submission or disapproving a State implementation plan submission in whole or in part, unless EPA approves a SIP revision correcting the deficiencies within that two-year period.
With respect to our partial approval and partial disapproval of Nevada's submissions related to interstate transport under CAA section 110(a)(2)(D)(i)(I), we conclude that any FIP obligation resulting from our final, partial disapproval is satisfied by our determination that there is no deficiency in the SIP to correct. Such disapproval also does not require any further action on Nevada's part given EPA's conclusion that the SIP is adequate to meet the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM
With respect to our final disapproval of Nevada's Infrastructure SIP Submittals for section 110(a)(2)(F)(iii) for the Clark County portion of the SIP, today's action establishes a deadline two years from the effective date of this action for EPA to promulgate a FIP, unless EPA approves a SIP revision correcting the deficiency within that two-year period.
For all other final disapprovals of today's action (i.e., for the PSD-related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), 110(a)(2)(J), and 110(a)(2)(K) for the NDEP and Washoe County portions of the SIP), we conclude that although the Nevada SIP remains deficient with respect to PSD requirements in both the NDEP and Washoe County portions of the SIP, these deficiencies are adequately addressed in each jurisdiction by the Federal PSD program, and therefore no further FIP obligation is triggered by today's action.
This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This partial SIP approval and partial SIP disapproval under CAA section 110 will not in-and-of itself create any new requirements but simply approves certain State requirements, and disapproves certain other State requirements, for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. Therefore, this action will not have a significant economic impact on a substantial number of small entities.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. EPA has determined that the partial approval and partial disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This action approves certain pre-existing requirements, and disapproves certain other pre-existing requirements, under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
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 action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP on which EPA is proposing action would not apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This partial approval and partial disapproval under CAA section 110 will not in-and-of itself create any new regulations but simply approves certain State requirements, and disapproves certain other State requirements, for inclusion into the SIP.
This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the Clean Air Act.
Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the grea