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Wednesday,

October 12, 2005

Part III

Environmental
Protection Agency
40 CFR Part 51
Prevention of Significant Deterioration
for Nitrogen Oxides; Final Rule

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ENVIRONMENTAL PROTECTION contained in sections 166(c) and 166(d) available only in hard copy form.
AGENCY of the Clean Air Act (CAA or Act). EPA Publicly available docket materials are
is also amending its PSD regulations to available either electronically in
40 CFR Part 51 clarify that States otherwise meeting EDOCKET or in hard copy at the Air
[AD–FRL–7981–1; E–Docket ID No. OAR– these requirements of the Act may Docket, EPA/DC, EPA West, Room
2004–0013 (Legacy Docket No. A–87–16)] obtain approval to employ alternative B102, 1301 Constitution Ave., NW.,
approaches to the existing increments Washington, DC. The Public Reading
RIN–2060–AM33 for NO2. Under a separate action, we Room is open from 8:30 a.m. to 4:30
will be publishing a Supplemental p.m., Monday through Friday, excluding
Prevention of Significant Deterioration Notice of Proposed Rulemaking (SNPR) legal holidays. The telephone number
for Nitrogen Oxides to show how implementation of the for the Public Reading Room is (202)
AGENCY: Environmental Protection model cap and trade program under the 566–1744, and the telephone number for
Agency (EPA). 2005 Clean Air Interstate Rule (CAIR) the Air Docket is (202) 566–1742.
ACTION: Final rule.
can meet the requirements for a State to
use this approach in lieu of the existing FOR FURTHER INFORMATION CONTACT: Mr.
NO2 increments in order to prevent Dan deRoeck, Information Transfer and
SUMMARY: In today’s final action, EPA is
significant deterioration of air quality Program Integration Division (C339–03),
retaining the existing nitrogen dioxide
from emissions of NOX. U.S. Environmental Protection Agency,
(NO2) increments as part of the Agency’s
DATES: This final rule is effective on
Research Triangle Park, NC 27711,
regulations for the Prevention of
November 14, 2005. telephone (919) 541–5593, fax (919)
Significant Deterioration (PSD) of air
541–5509, or e-mail at
quality from emissions of nitrogen ADDRESSES: EPA has established a
deroeck.dan@epa.gov.
oxides (NOX). These regulations are docket for this action under Docket ID
designed to preserve the air quality in No. OAR–2004–0013. All documents in SUPPLEMENTARY INFORMATION:
national parks and other areas that are the docket are listed in the EDOCKET
meeting the national ambient air quality index at http://www.epa.gov/edocket. I. General Information
standards (NAAQS) for NO2 (hereafter Although listed in the index, some A. Does This Action Apply to Me?
called the NO2 NAAQS). EPA information may not be publicly
reevaluated the original NO2 increments available, i.e., CBI or other information Entities affected by this rule include
in response to a 1990 court ruling that whose disclosure is restricted by statute. sources in all industry groups. The
directed the Agency to consider and Certain other material, such as majority of sources potentially affected
harmonize the statutory criteria for copyrighted material, is not placed on are expected to be in the following
establishing PSD regulations for NOX the Internet and will be publicly groups:

Industry group SIC a NAICS b

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
a Standard Industrial Classification.
b North American Industry Classification System.

Entities affected by the rule also B. Where Can I Obtain Additional under Regulations & Standards, at
include States, local permitting Information? http://www.epa.gov/nsr/index.html.
authorities, and Indian tribes whose
In addition to being available in the C. How is This Preamble Organized?
lands contain new and modified major
docket, an electronic copy of today’s
stationary sources. The information presented in this
final rule is also available on the World
Wide Web. Following signature by the preamble is organized as follows:
EPA Administrator, a copy of today’s I. General Information
final rule will be posted on the EPA’s A. Does This Action Apply to Me?
New Source Review (NSR) Web site,

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B. Where Can I Obtain Additional II. Background stationary and mobile sources are
Information? considered in the consumption of the
C. How Is This Preamble Organized? A. PSD Program
NO2 increments which are implemented
II. Background Part C of title I of the Act contains the through the PSD permitting provisions
A. PSD Program requirements for a component of the in 40 CFR parts 51 and 52.
B. Existing PSD Increment System for NOX major new source review (NSR) program The NO2 increment system includes
C. SIP Requirements for Implementing PSD
known as the Prevention of Significant the three-tiered area classification
Program
D. Court Challenge to Increments for NOX
Deterioration (PSD) program. This system originally established by
III. Overview of Today’s Final Action program sets forth procedures for the Congress in section 163 for the statutory
A. What We Proposed preconstruction review and permitting increments for SO2 and PM. Congress
B. Final Action and Differences From of new and modified major stationary designated Class I areas (including
Proposal sources of air pollution locating in areas certain national parks and wilderness
IV. Legal Basis for Final Action meeting the NAAQS, i.e., ‘‘attainment’’ areas) as areas of special national
A. Clean Air Act Provisions and Court areas, or in areas for which there is concern, where the need to prevent air
Opinion insufficient information to classify an quality deterioration is the greatest.
1. Applicable Statutory Provisions area as either attainment or Consequently, the allowable level of
2. Opinion of the Court in EDF v. EPA nonattainment, i.e., ‘‘unclassifiable’’ incremental change in air quality is
B. EPA’s Interpretation of Section 166 of areas.
the Act
smallest, i.e., most stringent, in Class I
The applicability of the PSD program areas. Congress initially established as
1. Regulations As a Whole Should Fulfill
Statutory Requirements
to a particular source must be Class II all areas not specifically
2. Contingent Safe Harbor Approach determined in advance of construction designated in the Act as Class I areas.
3. The Statutory Factors Applicable Under and is pollutant-specific. Once a source The increments of Class II areas are less
Section 166(c) is determined to be subject to PSD, it stringent than those of the Class I areas
4. Balancing the Factors Applicable Under must undertake a series of analyses to and allow for a moderate degree of
Section 166(c) demonstrate that it will use the best emissions growth. For future
5. Authority for States To Adopt available control technology (BACT) redesignation purposes, Congress
Alternatives To Increment and will not cause or contribute to a defined as Class III any existing Class II
V. Health and Welfare Effects of NOX violation of any NAAQS or incremental area for which a State may desire to
A. Overview of the Potential Effects of ambient pollutant concentration promote higher levels of industrial
Nitrogen Oxides increase. In cases where the source’s
B. Scope of Our Analysis development (and emissions growth).
emissions may adversely affect an area Thus, Class III areas are allowed to have
C. Data Considered in Our Analysis
D. Analysis of Potential Effects classified as a Class I area, additional the greatest amount of pollutant
1. Health Effects review is conducted to protect the increase while still achieving the
2. Welfare Effects increments and special attributes of NAAQS. There have been no Class III
VI. Final Actions such an area defined as ‘‘air quality redesignations to date.
A. Retain Existing Increment System for related values’’ (AQRV). EPA based the levels of the original
NOX When the permitting authority NO2 increments for the three area
1. Existing Characteristics of the Regulatory reaches a preliminary decision to classifications on the percentage-of-
Scheme Fulfill Statutory Criteria authorize construction of each proposed NAAQS approach that Congress used to
2. Characteristics of Increments for NOX major new source or major modification, define the increments in the Act for SO2
B. State Option To Employ Alternatives To it must provide notice of the and PM. Congress used different
Increment
preliminary decision and an percentages of the NAAQS to calculate
1. States May Adopt ‘‘Other Measures’’
That Fulfill Section 166 of the Act opportunity for comment by the general the Class I increments for PM and SO2.
2. EPA Is Not Adopting Elements of Option public, industry, and other persons that For the NO2 increments, we chose the
3 may be affected by the major source or percentage that Congress used for SO2.
3. Benefits of an Alternative Approach major modification. After considering This decision yielded a lower numerical
4. Future Actions Regarding Alternatives and responding to the comments, the value for the Class I NO2 increment than
VII. Measures Not Proposed as Options permitting authority may issue a final would have resulted by using the PM
VIII. Statutory and Executive Order Reviews determination on the construction percentages.
A. Executive Order 12866—Regulatory permit in accordance with the PSD The existing Class I NO2 increment is
Planning and Review regulations. 2.5 µg/m3 (annual average), a level of 2.5
B. Paperwork Reduction Act
percent of the NO2 NAAQS. It is based
C. Regulatory Flexibility Act (RFA) B. Existing PSD Increment System for
D. Unfunded Mandates Reform Act on the Class I SO2 increment, which is
NOX
E. Executive Order 13132—Federalism set at the same percentage (2.5 percent)
F. Executive Order 13175—Consultation On October 17, 1988, EPA of the SO2 annual NAAQS. The Class II
and Coordination With Indian Tribal promulgated pollutant-specific PSD NO2 increment is 25 µg/m3 ¥ 25
Governments regulations for NOX under section 166 percent of the NO2 NAAQS. The Class
G. Executive Order 13045—Protection of of the CAA. 53 FR 40656. As part of III NO2 increment is 50 µg/m3 ¥ 50
Children From Environmental Health these regulations, the EPA decided to percent of the NO2 NAAQS.
and Safety Risks establish NO2 increments following the
H. Executive Order 13211—Actions That pattern enacted by Congress for the C. SIP Requirements for Implementing
Significantly Affect Energy Supply, particulate matter (PM) and sulfur PSD Program
Distribution, or Use dioxide (SO2) increments. These Air quality planning requirements for
I. National Technology Transfer and
increments establish maximum new and modified stationary sources of
Advancement Act
J. Executive Order 12898—Federal Actions increases in ambient air concentrations air pollution are an integral part of the
To Address Environmental Justice in of NO2 (expressed in micrograms per PSD program. States must develop,
Minority Populations and Low-income cubic meter (µg/m3)) allowed in a PSD adopt, and submit to EPA for approval
Populations area over a baseline concentration. a State Implementation Plan (SIP) that
K. Congressional Review Act Emissions increases from both contains emission limitations and other

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control measures to attain and maintain that are part of the Agency’s pollutant- certain source-specific analyses,
the NAAQS and to meet other specific PSD regulations for NOX. We including the current NO2 increment
requirements of section 110(a) of the considered and harmonized the analysis. This option would require
Act. Each SIP must contain a statutory criteria, contained in sections States to submit revised SIPs that
preconstruction review program for the 166(c) and 166(d) of the Act, that govern include a cap and trade program to
construction and modification of any the content of these PSD regulations for reduce NOX emissions in accordance
stationary source of air pollution to NOX. EPA proposed to apply the with statewide emissions budgets
assure that the NAAQS are achieved statutory criteria using the ‘‘contingent prescribed by EPA. Neither the
and maintained. Further, each SIP must: safe harbor’’ approach that was statewide budget nor the regional cap
protect areas of clean air; not interfere suggested by the court as an appropriate would be a legally enforceable limit on
with any other State’s NAAQS way to ensure that EPA’s PSD total NOX emissions but would be used
maintenance; protect AQRVs, including regulations for NOX will prevent as an accounting technique to determine
visibility, in national parks and other significant deterioration of air quality in the amount of emissions reductions that
natural areas of special concern; assure parks and other areas that are would be needed from specific source
that appropriate emissions controls are designated to be in attainment with the categories to satisfy the budget or cap.
applied; maximize opportunities for NAAQS or are unclassifiable. Applying The requirements of the cap and trade
economic development consistent with this legal interpretation, we proposed program would be enforceable, and this
the preservation of clean air resources; three options to satisfy the statutory would ensure that as long as emissions
and ensure that any decision to increase requirements. See 70 FR 8880 (Feb. 23, from sources outside of the cap did not
air pollution is made only after full 2005). grow more than projected, the overall
public consideration of all the In the first option (option 1) of our regionwide budget would be met.
consequences of such a decision. February 2005 proposal, EPA proposed As a third option (option 3), we
to retain the existing regulatory proposed to allow States to adopt their
D. Court Challenge to Increments for framework and the original, existing own planning strategies to meet the
NOX increments for NO2 that the Agency first requirements of section 166 of the CAA.
EPA’s original NO2 increments were promulgated in 1988 to protect the air We proposed to allow a State to forego
challenged in 1988 by the quality in national parks and other areas implementation of the NO2 increments
Environmental Defense Fund (now that meet the NAAQS for NO2. These if the State could demonstrate that
Environmental Defense, or ‘‘ED’’) when increments were established as a measures in its SIP, in conjunction with
ED filed suit in the U.S. Court of percentage of the NAAQS, and were Federal requirements, would prevent
Appeals for the District of Columbia based on the same ambient measure significant deterioration of air quality
Circuit against the Administrator (NO2) and averaging period (annual) as from emissions of NOX. Under this
(Environmental Defense Fund, Inc. v. the NAAQS. We proposed to find that option, in lieu of implementing the
Reilly, No. 88–1882). ED successfully an increment with these characteristics increment system for NOX, a State
argued that EPA failed to sufficiently satisfied the minimum requirements of would have to demonstrate that specific
consider certain provisions in section section 166(d) of the Act for preserving planning goals and requirements
166 of the CAA. The court remanded the the air quality in parks and other contained in its SIP would satisfy the
case to EPA ‘‘to develop an attainment and unclassifiable areas. In requirements in section 166 of the Act
interpretation of section 166 that addition, to address the requirements of and the goals and purposes of the PSD
considers both subsections (c) and (d), section 166(c), we reviewed the existing program set forth in section 160. We
and if necessary to take new evidence regulatory framework of the Agency’s proposed to require that States establish
and modify the regulations.’’ PSD regulations for NOX and the a clear planning goal that satisfied the
Environmental Defense Fund v. EPA, scientific and technical information requirements of sections 166(c) and
898 F.2d 183, 190 (D.C. Cir. 1990) (‘‘EDF pertaining to the health, welfare, and 166(d) of the Act. Under this option,
v. EPA’’). EPA initiated this action in ecological effects of NOX. In light of this EPA did not propose to require a State
response to the court decision. We review, EPA proposed to find that the to demonstrate that its SIP included a
discuss the opinion of the court further statutory requirements were met by specific type of program. However, we
below. retaining annual NO2 increments that indicated that we believed a goal to
are based on the percentages of the keep statewide emissions of NOX from
III. Overview of Today’s Final Action NAAQS that Congress employed to set all sources below 1990 levels would
To ensure protection of the air quality the increments for SO2. The available prevent significant deterioration of air
in national parks and other areas that research on health and welfare effects quality and satisfy the requirements of
meet the NAAQS for NO2, EPA is taking indicated that the existing NO2 section 166 of the Act.
final action today on its reevaluation of increments, in conjunction with the
B. Final Action and Differences From
the Agency’s pollutant-specific PSD case-by-case permit reviews for
Proposal
regulations for NOX, which include the additional impacts and impairment of
existing NO2 increments. We have AQRVs, fulfilled the criteria in section In this final action, we are adopting
decided to retain the existing NO2 166(c). option 1 of the February 2005 proposal
increments while also granting States In the second option (option 2), we and retaining the existing NO2
the option to seek approval of proposed to allow States to prevent increments along with other parts of the
alternative approaches that protect significant deterioration of air quality existing framework of pollutant-specific
parks and prevent significant due to emissions of NOX by adopting an PSD regulations for NOX. However, we
deterioration of air quality from EPA-administered market-based are also amending the text of one of our
emissions of NOX. interstate cap and trade program, such PSD regulations in order to make clear
as the model cap and trade program for that States may seek EPA approval of
A. What We Proposed EGUs contained in our CAIR. Under this SIPs that utilize an alternative approach
In accordance with the directions of a option, a State that implemented this to the NO2 increments if the State can
1990 court ruling, EPA conducted a program to address NOX emissions demonstrate that an alternative program
review of the existing NO2 increments would no longer be required to conduct satisfies the requirements of sections

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166(c) and 166(d) of the CAA and emissions reductions required under opportunities for informed public
prevents significant deterioration from CAIR can fulfill the objectives of the participation in the decisionmaking process.
emissions of NOX. States have always PSD program, satisfy the statutory In addition, the goals and purposes of
had the option to submit alternative requirements of section 166 of the Act, the CAA described in section 101 of the
approaches in their SIPs that can be and obviate the need to implement the Act are the following:
shown to be more effective than the NO2 increments program.
(b) * * * (1) to protect and enhance the
minimum program elements established quality of the Nation’s air resources so as to
by EPA, but this regulatory change is IV. Legal Basis for Final Action
promote the public health and welfare and
intended to clarify that a system other A. Clean Air Act Provisions and Court the productive capacity of its population;
than increments may be utilized by a Opinion (2) to initiate and accelerate a national
State to prevent significant deterioration research and development program to
from emissions of NOX where the 1. Applicable Statutory Provisions achieve the prevention and control of air
requirements of the CAA are otherwise EPA is taking this action in pollution;
met. accordance with the requirements of (3) to provide technical and financial
In options 2 and 3, we proposed to assistance to State and local governments in
section 166 of the CAA for NOX. In
address the requirements of section 166 connection with the development and
section 166(a) of the Act, Congress execution of their air pollution prevention
of the CAA for NOX through the review directed EPA to conduct a study and and control programs; and
and approval of State programs that promulgate regulations to prevent (4) to encourage and assist the
employed alternative approaches to significant deterioration of air quality development and operation of regional air
fulfill the requirements of sections which would result from emission of pollution prevention and control programs [;
166(c) and 166(d) of the Act. We are hydrocarbons, carbon monoxide, and]
codifying this basic principle in our photochemical oxidants, and NOX. (c) * * * to encourage or otherwise
regulations today without defining any Congress further specified that such promote reasonable Federal, State, and local
specific type of alternative program that governmental actions, consistent with the
regulations meet the following provisions of this Act, for pollution
we believe would meet these requirements set forth in sections 166(c)
requirements. We are simply making prevention.
and 166(d):
clear in our regulations that States have 2. Opinion of the Court in EDF v. EPA
the option to continue implementing the (c) Such regulations shall provide specific
NO2 increment program or to design an numerical measures against which permit In its 1990 opinion on the challenge
alternative approach as part of the SIPs applications may be evaluated, a framework to EPA’s 1988 regulations for NOX, the
for stimulating improved control technology, court held that EPA had satisfied its
and submit this program to EPA for protection of air quality values, and fulfill the
approval. Rather than promulgating a obligation under section 166(d) but had
goals and purposes set forth in section 101 not sufficiently considered whether
specific alternative program of the type and section 160.
we proposed in option 2 and option 3, different increments should be
(d) The regulations * * * shall provide
we are allowing States the flexibility to specific measures at least as effective as the established under the criteria in section
submit any type of alternative for increments established in section 163 [for 166(c).
consideration on a case-by-case basis to SO2 and PM] to fulfill such goals and Environmental Defense Fund v. EPA,
determine if the alternative meets the purposes, and may contain air quality 898 F.2d 183 (D.C. Cir. 1990) (‘‘EDF v.
requirements of sections 166(c) and increments, emission density requirements, EPA’’). More specifically, the court held
or other measures. that EPA’s percentage-of-NAAQS
166(d) of the CAA as we interpret these
provisions in this final action. We are The goals and purposes of the PSD approach for determining the
not establishing any additional program set forth in section 160 are as increments satisfied the duty under
regulatory criteria (such as planning follows: section 166(d) to promulgate regulations
goals or emissions inventory for NOX that were ‘‘at least as effective’’
(1) to protect public health and welfare as the increments in section 163. Id. at
requirements) that would govern the from any actual or potential adverse effect
review of such a program other than 188. As to subsection (c), however, the
which in the Administrator’s judgment may
what is already contained within the reasonably be anticipate[d] to occur from air court held that EPA’s approach of using
CAA. Thus, we make no final finding at pollution or from exposures to pollutants in the percentage ambient concentrations
this time that any particular type of other media, which pollutants originate as as a ‘‘proxy’’ for meeting the subsection
program other than the existing emissions to the ambient air, (c) criteria overlooked the language of
increment framework meets the notwithstanding attainment and maintenance subsection (c) and turned subsection (c)
requirements of sections 166(c) and of all national ambient air quality standards; into an option despite its mandatory
(2) to preserve, protect, and enhance the air wording. Thus, the court remanded the
166(d) of the CAA. Instead, we plan to
quality in national parks, national wilderness case to EPA ‘‘to develop an
make such determinations on a case-by- areas, national monuments, national
case basis whenever a State submits an interpretation of section 166 that
seashores, and other areas of special national
alternative approach for EPA to approve or regional natural, recreational, scenic, or considers both subsections (c) and (d),
as part of a SIP. historic value; and if necessary to take new evidence
Although we are not adopting a (3) to insure that economic growth will and modify the regulations.’’ Id. at 190.
specific cap and trade (option 2) or occur in a manner consistent with the The court identified three steps that
emissions inventory-based planning preservation of existing clean air resources; EPA took to develop PSD regulations for
program (option 3) at this time, we (4) to assure that emissions from any NOX under section 166. The first two
continue to see promise in using a cap source in any State will not interfere with steps reflected EPA’s decisions to
and trade approach modeled on the any portion of the applicable implementation implement the PSD program for NOX by
plan to prevent significant deterioration of air adopting regulations for NOX that
CAIR to meet the goals of the PSD
quality for any other State; and
program for NOX. As a result, we intend (5) to assure that any decision to permit
employed increments with an area
to publish a supplemental notice of increased air pollution in any area to which classification system. These first two
proposed rulemaking that builds on this section applies is made only after careful steps were not controverted in EDF v.
option 2 and provides more details on evaluation of all the consequences of such a EPA. See 898 F.2d at 184–85. The
how a State that achieves the NOX decision and after adequate procedural dispute in the EDF case involved only

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the third step, which was EPA’s action necessarily the factors that determine main points below. Further discussion
to establish several characteristics of the the NAAQS under section 109. of many of these points can be found in
increments by reference to the NAAQS. Thus, the court directed EPA to the February 2005 proposal. 70 FR at
The characteristics that EPA derived reconsider the characteristics of the 8885. In addition to reiterating the main
from the NAAQS were (1) the level of existing increments in light of the points below, the following discussion
the increments using the percent-of- criteria in both sections 166(c) and also clarifies our interpretation in light
NAAQS approach; (2) the time period 166(d). The court indicated that one of several comments that we received.
(annual average) for the increments; and permissible interpretation for
harmonizing subsections (c) and (d) 1. Regulations As a Whole Should
(3) the pollutant (NO2) for which the Fulfill Statutory Requirements
increments were established. Since would be to construe subsection (d) as
a ‘‘contingent safe harbor’’ or Commenters did not question our
these three characteristics of the
presumptive baseline. Thus, increments holistic approach, which is grounded on
increments were the only issues
derived from the NAAQS could be the structure of section 166 of the Act.
controverted in the EDF v. EPA case,
authorized if the Agency were to Section 166(a) directs EPA to develop
EPA interprets the court’s remand to pollutant-specific regulations to prevent
undertake additional analysis and make
direct the Agency only to reconsider the significant deterioration of air
a reasoned determination that the
these three questions. However, in the quality. Sections 166(c) and 166(d)
criteria under subsection (c) do not call
proposal, we also believed it would be for different increments than the ‘‘safe provide detail on the contents of those
beneficial to consider alternative harbor’’ that meets the criteria in regulations. In order to develop
approaches to an increment system and subsection (d) of the statute. pollutant-specific regulations under
voluntarily reconsidered the first two subsection (a), EPA must establish an
steps in the process of developing B. EPA’s Interpretation of Section 166 of overall regulatory framework for those
pollutant-specific PSD regulations for the Act regulations and fill in specific details
NOX. In the February 2005 notice of around that framework. Thus, EPA
In EDF v. EPA, the court held that, in proposed rulemaking (February 2005 interprets section 166 to require that the
light of the criteria in section 166(c), proposal), we responded to the court’s entire system of PSD regulations for a
EPA could not use the NAAQS as the opinion by describing in detail how the particular pollutant must, as a whole,
sole basis for deriving increments. EPA proposed to interpret and apply the satisfy the criteria in sections 166(c) and
However, the court held that using the relevant provisions of the CAA in the 166(d).
NAAQS as the basis for deriving course of reevaluating the existing PSD As a result, when we reevaluated the
increments was permissible in regulations for NOX on remand. 70 FR existing PSD regulations for NOX, we
determining whether the ‘‘at least as at 8885–88. Our interpretation is did not look at increments in isolation,
effective’’ standard under subsection (d) grounded on five central elements. First, but also considered how these
was met. But, with respect to subsection we read section 166 of the Act to direct increments work in conjunction with
(c), the court stated: ‘‘We find nothing EPA to conduct a holistic analysis that other measures to satisfy the statutory
considers how a complete system of criteria. The other measures that we
in the language or legislative history
regulations will collectively satisfy the considered with the increments are the
suggesting that this duty [consideration
applicable criteria, rather than area classification system, AQRV review
of the goals and purposes of the statute]
evaluating one individual part of a in Class I areas, additional impacts
could be satisfied simply by referencing
regulatory scheme in isolation. Second, analysis, and BACT requirements. This
the NAAQS.’’ Id. at 190. The court we adopted the ‘‘contingent safe harbor’’ approach is consistent with section
noted the differences between the health approach suggested by the court which 166(d), which says that pollutant-
and welfare criteria on which the calls for EPA to first establish the specific PSD regulations ‘‘may contain’’
NAAQS are based (sections 108 and minimum level of effectiveness increments or ‘‘other measures.’’
109) and the ‘‘goals and purposes’’ of necessary to satisfy section 166(d) and In option 1 of the proposal, we
the PSD program set forth in section then to conduct further analysis to proposed to retain the increment system
160, highlighting the special value the determine if additional measures are and focused our reevaluation on the
PSD program places on protection of necessary to fulfill the requirements of specific characteristics of the
national parks. At the same time, the section 166(c). Third, we interpreted increments (level, time period, and
court recognized that ‘‘[n]evertheless, section 166(c) of the Act to identify pollutant) in our existing PSD
the ambient standards are the basic eight statutory factors that EPA must regulations for NOX. This was because
measure of air quality under the [Clean apply when promulgating pollutant- the dispute in EDF v. EPA involved only
Air Act], and the controlling standards specific regulations to prevent EPA’s decisions to define the
by no means exclude any value that is significant deterioration of air quality. characteristics of the increments for
the subject of focus under the PSD Fourth, we interpreted the requirements NOX in relation to the NAAQS. Since
provisions.’’ Id. at 176 (internal citations to simultaneously satisfy each of these the increment and area classification
and quotations omitted). In other words, factors to establish a balancing test in system in EPA’s PSD regulations for
the court observed that NAAQS remain cases where certain objectives may be at NOX was not controverted, we
relevant to the inquiry under section odds with each other. Fifth, we interpreted the court’s opinion not to
166 because they are a basic measure of recognized that the requirements of require that the Agency reconsider this
air quality and may indirectly reflect section 166 may be satisfied by adopting basic framework for its PSD regulations
some consideration, among others, of other measures besides an increment for NOX. Thus, in this action to finalize
the same values that are the focus of the and that EPA may allow States to option 1 of the proposal, we continue to
PSD program. However, the court demonstrate that alternatives to focus on the level, time period, and
indicated that we could not rely solely increment contained in a SIP meet the pollutant employed to establish
upon the NAAQS to comply with requirements of sections 166(c) and increments for NOX. However, under
section 166 because this provision 166(d). our holistic approach, we considered
directs us to focus on the specific goals We maintain this interpretation in these characteristics of the increment in
and purposes of PSD which are not this final action and summarize the conjunction with the other measures

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contained in our PSD regulations for measures adopted under the PSD our decision to emphasize the five goals
NOX that were not challenged in EDF v. program and section 166, sufficiently and purposes in section 160, while
EPA. fulfilled the criteria in subsection (c). looking to the more general goals in
After weighing and balancing the section 101 of the Act to provide
2. Contingent Safe Harbor Approach criteria set forth in subsection (c) (and guidance on the meaning of the more
Our proposal to harmonize the criteria the incorporated goals and purposes of specific goals and purposes of the PSD
set forth in sections 166(c) and 166(d) the CAA in section 101 and the PSD program in section 160.1
by employing the ‘‘contingent safe program in section 160), we have In this rulemaking action, we use the
harbor’’ approach was also not opposed determined that the ‘‘safe harbor’’ term ‘‘factors’’ as shorthand to describe
by any commenters. Several increments and associated measures the group of eight statutory objectives
commenters took issue with our satisfy the criteria in subsection (c) for (three criteria and five goals and
ultimate decision not to establish NOX. Thus, we are not adopting purposes) that we believe Congress
increments more stringent than the safe different increments, additional directed us to achieve in promulgating
harbor, but no one questioned the increments, or additional measures to pollutant-specific PSD regulations
analytical approach that we used to satisfy the section 166(c) criteria. under section 166 of the Act. We do not
harmonize sections 166(c) and 166(d) of However, under the contingent safe intend for our use of ‘‘factors’’ to suggest
the Act. harbor approach, if we had determined that EPA does not believe it must satisfy
We continue to believe this is an that the ‘‘safe harbor’’ increments and all four criteria in section 166(c), one of
appropriate reading of the statute. other measures did not satisfy the which requires that EPA fulfill the five
Subsection (c) of section 166 describes criteria applicable under section 166(c), goals and purposes in section 160. The
the kinds of measures to be contained in we would have promulgated additional Agency has used the term ‘‘factors’’ in
the regulations to prevent significant increments or other measures as part of this action to avoid confusion when
deterioration of air quality called for in our pollutant-specific PSD regulations referring to the combination of criteria
section 166(a) and specifies that these for NOX under section 166. in section 166(c) and goals and purposes
regulations are to ‘‘fulfill the goals and in section 160 that the court directed us
purposes’’ set forth in sections 160 and 3. The Statutory Factors Applicable
to consider further on remand.
101 of the Act. Then, under subsection Under Section 166(c)
Regardless of the semantics, our
(d), to ‘‘fulfill such goals and purposes,’’ We proposed to interpret section objective is to establish regulations that
EPA must promulgate ‘‘specific 166(c) of the Act to establish eight satisfy each of these factors.
measures at least as effective as the factors to be considered in the
increments established in section 7473 development of PSD regulations for the 4. Balancing the Factors Applicable
of this title [section 163 of the Act].’’ 42 pollutants covered by this provision. Under Section 166(c)
U.S.C. 7476. Thus, subsection (d) can be These factors are three of the four A few commenters questioned our
construed to require that EPA identify a criteria listed in section 166(c) and the interpretation of the Act to establish a
minimum level of effectiveness, or safe five goals and purposes identified in balancing test among many of the eight
harbor, for the body of pollutant-specific section 160 of the Act. The three stand- factors applicable under section 166(c)
PSD regulations adopted under section alone criteria in section 166(c) indicate of the Act. In the proposal, we described
166. Then, subsection (c) may be read to that PSD regulations for specific how we believed the Act directed us to
require that EPA conduct further review pollutants should provide (1) specific balance the goal to promote economic
to determine whether, based on the numerical measures for evaluating growth with the factors that direct us to
criteria in subsection (c), EPA’s permit applications; (2) a framework for protect: (1) AQRVs; (2) the public health
pollutant-specific PSD regulations stimulating improved control and welfare from adverse effects, and (3)
under section 166 should contain technology; and (3) protection of air the air quality in parks and special
measures that deviate from the quality values. 42 U.S.C. 7476(c). The areas. We are not persuaded that this is
minimum ‘‘safe harbor’’ identified five goals and purposes in section 160 an impermissible reading of the Act.
under subsection (d). As in 1988, we are incorporated into the analysis by Section 166 of the CAA directs EPA to
construe subsection (d) to require that virtue of the fourth criterion in section promulgate pollutant-specific PSD
the measures be ‘‘at least as stringent’’ 166(c), which directs that EPA’s regulations that simultaneously satisfy
as the statutory increments set forth in pollutant-specific PSD regulations each of the eight factors described
section 163. ‘‘fulfill the goals and purposes’’ set forth above. While these objectives are
When we employ an increment and in sections 160 and 101 of the Act. This
area classification system in our section fourth criterion in section 166(c) cannot 1 The Agency’s view is that PSD measures that

166 PSD regulations, we interpret this be understood without reference to satisfy the specific goals and purposes of section
language to require that EPA, at other parts of the Act. Thus, we 160 also satisfy the more general purposes and goals
identified in section 101 of the Act. The overall
minimum, establish increments that are construed the term ‘‘fulfill the goals and goals and purposes of the CAA listed in sections
consistent with the statutory increments purposes,’’ as used in section 166(c), to 101(b) and 101(c) are general goals regarding
established by Congress in section 163 mean that EPA should apply the goals protecting and enhancing the nation’s air resources
of the Act. Thus, we identified the ‘‘safe and purposes listed in section 160 as and controlling and preventing pollution. Because
these broad goals are given more specific meaning
harbor’’ increments for NOX for each factors applicable to pollutant-specific in section 160, EPA does not believe it is necessary
area classification (Class I, II, or III) to PSD regulations established under to consider them in detail when evaluating whether
be increments established in relation to section 166. PSD regulations satisfy the criteria in section 166(c).
the NO2 NAAQS that were set (1) at an A few commenters disagreed with our In addition, the court’s inquiry in EDF v. EPA
focused exclusively on the specific goals and
equivalent percentage of the NAAQS as choice of words in an introductory purpose of the PSD program set forth in section 160.
the statutory increments; (2) for the paragraph when we collectively However, because the broad purpose of the CAA set
same pollutants as the NAAQS; and (3) described these eight parts of the Act as forth in section 101(b)(1) provides some additional
for the same time period as the NAAQS. ‘‘factors to be considered.’’ However, no guidance as to the meaning of the more specific
PSD goal set forth in section 160(3), we considered
We then conducted further review to one disagreed that these eight objectives section 101(b)(1) further in the limited context of
determine whether these ‘‘safe harbor’’ should be the focus of our analysis. For interpreting one of the factors applicable under
increments, in conjunction with other instance, commenters did not question section 166.

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generally complementary, there are 160(3) as establishing an objective to in section 160 with other criteria
circumstances where some of the ‘‘foster economic growth.’’ According to applicable under section 166(c) of the
objectives may be in conflict. In these common usage, the term ‘‘foster’’ means Act. Thus, we have not disavowed what
situations, some degree of balance or to ‘‘promote the growth or development we said in 1988, but rather have added
accommodation is inherent in the of.’’ Merriam-Webster’s Collegiate to it. Consistent with the direction of the
requirement to establish regulations that Dictionary, Tenth Edition, Page 459 court, we have analyzed the terms of
satisfy all of these factors at the same (2001). We used ‘‘foster’’ in the context sections 166(c) and 160 more carefully
time. If not, it might be impossible for of describing the goals in sections 160(3) after the court held that we had not
EPA to establish one set of regulations and 101(b)(1) of the Act, and considered adequately considered these provisions
that fulfills all the factors applicable the term to be consistent with the goal of the Act. Having considered these
under section 166(c). to ‘‘insure’’ economic growth under parts of the statute in more depth at this
As discussed in the proposal, we certain conditions and to ‘‘promote’’ the stage, we believe our current
believe this balancing test derives productive capacity of the population interpretation is well-grounded in the
primarily from the third goal and while protecting air quality. However, to terms of the Act and in fact consistent
purpose set forth in section 160. Section be more consistent with our terminology with what we said in 1988.
160(3) directs us to ‘‘insure that in recent NSR rulemaking actions (67 The need to balance the applicable
economic growth will occur in a manner FR at 80187), we will use the phrase factors to achieve these objectives
consistent with the preservation of ‘‘maximize opportunities for economic simultaneously is also supported by our
existing clean air resources.’’ growth’’ in this final action rather than interpretation of the second goal in
To some extent, this goal of the PSD ‘‘foster economic growth.’’ section 160(2) of the Act to ‘‘protect
program in section 160(3) more One commenter also argued that EPA public health and welfare.’’ The precise
specifically articulates the broader was impermissibly departing from an meaning of this goal in the context of
purpose of the CAA, described in earlier interpretation that the goal in the PSD program is somewhat
section 101(b)(1) of the Act, to ‘‘protect section 160(3) required EPA ‘‘to ensure ambiguous because it appears to mirror
and enhance the quality of the Nation’s that economic growth in clean areas the legal standards applicable to the
air resources so as to promote the public occurs only after careful deliberation by promulgation of the primary and
health and welfare and the productive State and local communities.’’ 53 FR secondary NAAQS. Under section
capacity of its population.’’ 42 U.S.C. 3698, 3699 (Feb. 8, 1988). However, we 109(b) of the Act, the primary NAAQS
7401(b)(1). Sections 160(3) and 101(b)(1) believe our current view is consistent must ‘‘protect the public health’’ with
are similar in that both sections reflect with what we said in that earlier notice an adequate margin of safety (section
the goal to simultaneously protect air of proposed rulemaking. In 1988, we 109(b)(1)) and the secondary NAAQS
quality and maximize opportunities for also recognized that Congress had must ‘‘protect the public welfare from
economic growth. Thus, in interpreting directed us to balance several of the any known or anticipated adverse
the meaning of section 160(3) when goals and purposes listed in section 160 effects’’ associated with ambient
used as a factor applicable under section of the Act. 53 FR at 3699. We stated that concentrations of the pollutant (section
166(c), we also consider the broader the PSD program is required to balance 109(b)(2)). The term ‘‘welfare’’ is
purpose of the Act set forth in section the first goal to protect public health defined in the Act to include ‘‘effects on
101(b)(1). and welfare, the second goal to protect soils, water, crops, vegetation, man-
The first part of the goal of the PSD air quality in national parks and other made materials, animals, wildlife,
program set forth in section 160(3) (‘‘to special areas, and a third goal as weather, visibility, and climate.’’
insure that economic growth will expressed above. 53 FR at 3699. From Section 302(h) of the Act.
occur’’) makes clear that the PSD the language we used, however, it is In the specific context of the PSD
program is not intended to stifle apparent that this ‘‘third goal’’ was program, we construe this charge to
economic growth. However, the second actually a combination of the goal in ‘‘protect public health and welfare’’ to
part of this goal indicates that economic section 160(3) with the goal in section require EPA to evaluate whether adverse
growth should ‘‘occur in a manner that 160(5) of the Act. Section 160(5) effects may occur as a result of increases
is consistent with the preservation of establishes the goal to ‘‘assure that any in ambient pollutant concentrations to
existing clean air resources.’’ 42 U.S.C. decision to permit increased air levels below the NAAQS. If such effects
7470(3). Section 101(b)(1) indicates that pollution in any area is made only after may occur in some areas of the country,
these goals are not necessarily careful evaluation of all the then EPA must consider how to
inconsistent because Congress sought to consequences of such decision and after establish PSD regulations that protect
‘‘protect and enhance the Nation’s air adequate opportunities for informed public health and welfare against those
resources so as to promote the public public participation in the effects where they may occur. However,
health and welfare and the productive decisionmaking process.’’ 42 U.S.C. we do not interpret the PSD program to
capacity of its population.’’ When 7470(5). We continue to believe that require regulations that eliminate all
considered in light of the purpose of the Congress directed us to fulfill both the negative effects that may result from
Act set forth in section 101(b)(1), it is goals in sections 160(3) and 160(5) at increases in pollution in attainment
clear that section 160(3) establishes the the same time. However, because, as we areas.
goal of the PSD program to maximize describe in more detail below, we The PSD program is, as its title
opportunities for economic growth and believe that other aspects of our existing indicates, designed to prevent
to protect clean air resources. Therefore, PSD regulations for NOX fulfill the goal ‘‘significant deterioration’’ from a
when applied as a guiding factor for the in section 160(5), we have not baseline concentration. See S. Rep. 95–
content of pollutant-specific PSD emphasized the language of section 127 at 11 (3 LH at 1385) (‘‘This
regulations under section 166(c), we 160(5) in the balancing test we utilized legislation defines ‘significant
construe section 160(3) to require that to analyze the characteristics of the deterioration’ in all clean air areas as a
we balance economic growth and increment. specified amount of additional
environmental protection. In the present action, we are carrying pollution * * *. This definition is
A few commenters objected to our this balancing approach an additional intended to prevent any major decline
characterization of the goal in section step by seeking to harmonize the goals in air quality currently existing in clean

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air areas.’’ (emphasis added)). Thus, NAAQS and periodic reductions protecting air quality in these areas.
some decline in air quality (relative to providing ‘‘reasonable further progress’’ However, when a PSD increment is
the baseline air quality concentration) is in the interim (see section 172(c) of the violated, we agree that EPA may require
permissible for any particular area of the Act). For attainment areas subject to the a State to revise its SIP to correct a
country that is currently achieving the PSD program, section 161 of the Act violation. See 40 CFR 51.166(a)(3).
NAAQS, as long as it is not requires that ‘‘each applicable Otherwise, we do not interpret these
‘‘significant.’’ implementation plan shall contain PSD provisions to authorize us to direct
When EPA employs an area emissions limitations and such other States in their SIPs to achieve
classification system in its section 166 measures as may be necessary, as reductions in emissions from existing
regulations, these factors must be determined under regulations sources for PSD purposes.
weighed in each type of area (Class I, promulgated under this part, to prevent However, we recognize that the
Class II, and Class III). However, the significant deterioration of air quality in growth management goals of PSD may
weight given to each factor may be more each region * * * designated * * * as also be fulfilled when the States adopt
or less, depending on the area involved attainment or unclassifiable.’’ We have controls on existing sources that would
and the amount of deterioration deemed interpreted sections 166 and 161 to reduce emissions and allow growth
‘‘significant’’ for that type of area. For collectively require that EPA from new sources and major
example, economic growth may be the promulgate a specific PSD regulatory modifications to existing sources
most important factor in a Class III area, program for each pollutant identified in without causing significant
but our PSD regulations for such areas section 166 (such as the existing NO2 deterioration. Under the increment
should offer some level of protection for increments and associated regulations), approach, we have previously
existing clean air resources. In a Class and then to require the States to adopt recognized that States may choose to
I area, our PSD regulations should allow that program as part of their SIPs. require reductions from existing sources
some level of economic growth, even Nothing in the CAA precludes EPA from in order to expand the increments and
though preservation of existing clean air promulgating a minimum program, such allow for more growth under the PSD
resources may be the dominant factor as the NO2 increments we reaffirm program.2 However, we have never
for these areas. today, and giving States the option to required States to do so because, in the
5. Authority for States To Adopt either adopt the minimum program or to absence of an increment violation, we
Alternatives To Increment design an alternative program and do not believe section 166 and other
demonstrate to EPA that such a program provisions in part C give us the legal
We do not interpret section 166 to
meets the requirements of sections authority to mandate such reductions
require that EPA (or that States that
166(c) and 166(d), as interpreted in this for PSD purposes.
implement our regulations) employ an
increment system for every pollutant action.
V. Health and Welfare Effects of NOX
listed in this section. Section 166(d) One commenter argued that EPA is
authorized under sections 160, 161, and As explained in the preceding section,
states that our pollutant-specific PSD the goals and purposes of the PSD
regulations ‘‘may contain’’ increments 166 of the Act to direct States to adopt
SIPs that reduce emissions of NOX from program that are especially relevant to
or ‘‘other measures.’’ Thus, EPA or the the development of our pollutant-
States may employ approaches other existing sources. However, we do not
completely agree with this specific PSD regulations for NOX
than an increment system, so long as address protection of public health and
such an approach otherwise meets the interpretation. The PSD program was
designed to be a growth management welfare, with a particular emphasis on
requirements of sections 166(c) and
program that limits the deterioration of the air quality in national parks and
166(d).
air quality beyond baseline levels that other natural areas. Thus, we evaluated
If a State adopts regulations in its SIP
may be caused by the construction of the available scientific and technical
that meet the criteria of sections 166(c)
major new and modified sources. The information on the health and welfare
and 166(d), we believe section 166
commenter disputed this view by effects of NOX to determine whether any
would give EPA the authority to allow
pointing to language in section 160(2) modification of those increments is
the State to implement that program in
which establishes the goal to ‘‘preserve, warranted.
lieu of the NO2 increment program that
protect, and enhance’’ air quality in In this section, we summarize the
we are reaffirming today. Thus, one
national parks. However, considering scientific and technical information that
approach we proposed for fulfilling our
the growth management goals of the we considered, as well as the relevant
obligation to promulgate pollutant-
PSD program, we believe the use of the health and welfare findings that we
specific regulations for NOX under
term ‘‘enhance’’ in section 160(2) was believe support retaining the existing
section 166 was to adopt regulations
intended to refer to the visibility NO2 increments. Additional discussion
that allow States to demonstrate that
provisions in sections 169A and 169B on the potential effects of NOX is
alternative programs satisfy section 166.
Under section 110(a)(1) of the Act, and those situations where a PSD contained in the February 2005
each State is required to submit a SIP increment is violated. Section 160 lists proposal. See 70 FR 8880 (February 23,
that provides for implementation, the goals and purposes of part C of the 2005) at 8888–8894.
maintenance, and enforcement of the CAA, and this part includes sections A. Overview of the Potential Effects of
primary and secondary NAAQS 169A and 169B which establish the Nitrogen Oxides
established by EPA. All areas are Regional Haze program. An explicit goal
‘‘Nitrogen oxides’’ is the generic term
required to submit SIPs within certain of this program is to ‘‘remedy any
for a group of highly reactive gases that
timeframes, and those SIPs must existing impairment of visibility in
contain nitrogen and oxygen in varying
include specified provisions identified mandatory Class I Federal areas.’’ 42
amounts. The high-temperature
under section 110(a)(2) of the Act. SIPs U.S.C. 7491(a)(1). Thus, we believe the
combustion of fossil fuels, primarily
for nonattainment areas are required to goal to ‘‘enhance’’ air quality in national
include additional specified control parks is implemented through the 2 43 FR 26380, 26381 (June 19, 1978) (‘‘States can
requirements, as well as controls Regional Haze program while the PSD expand the available PSD increments by requiring
providing for attainment of any revised program focuses on preserving and emissions reductions from existing sources.’’)

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from electric utilities and mobile PSD regulations for NOX were the any PSD strategy for PM should
sources, is a major contributor to the appropriate place to address the effects consider both direct PM emissions and
formation of nitric oxide (NO) and of the secondary pollutants ozone and all of the regulated precursors instead of
NO2.3 Most NOX from combustion PM. Some commenters disagreed with placing disproportionate emphasis on
sources is emitted as NO (about 95 our proposed approach and argued that only one component of the pollutant.
percent); the remainder are primarily EPA should address the adverse effects Regulations for NOX that address PM
NO2. Emissions of NO are rapidly of ozone and PM as part of our effects in a narrow manner (i.e., nitrates
oxidized in the atmosphere to produce assessment of the existing NO2 only) could potentially affect the
even more NO2.4 In a relatively short increments. Photochemical oxidants stringency of the PM increments and
time, however, NO2 in the atmosphere (ozone)7 and PM 8 are formed in part by considerations regarding the baseline
can be transformed into other nitrogen reactions of NOX emissions with other concentration and baseline date. Thus,
compounds, including nitric acid and pollutants in the atmosphere. However, we believe it would be inappropriate to
nitrates. We also know that nitrogen we do not agree that this fact alone promulgate pollutant-specific
oxides 5 play a major role in the dictates that our pollutant-specific PSD regulations for NOX based on its
formation of other criteria pollutants— regulations for NOX must address ozone transformation into PM. In a separate
ozone and PM (nitrogen-bearing and PM impacts. Because nitrogen notice, EPA intends to consider options
particles and acid aerosols)—each with oxides are not the only compounds that for regulating precursors to PM2.5.
their own set of adverse health and contribute to the formation of ozone and Some commenters believe that the
welfare effects.6 For example, nitrate PM, we believe we can more effectively statutory PSD requirements obligate
particles contribute to visibility address the effects of PM and ozone EPA to promulgate NOX regulations to
impairment and regional haze and through separate regulations for these prevent significant deterioration of air
nitrates are a major component of acidic pollutants under section 166 of the Act. quality from ozone and PM. These
deposition. It would be unreasonable to establish commenters cited language from section
In addition, reduced nitrogen pollutant-specific PSD regulations to 166(a) of the Act which directs EPA to
compounds, such as ammonia (NH3) protect against the effects of ozone ‘‘promulgate regulations to prevent
(derived largely from emissions from without also considering the other major significant deterioration of air quality
livestock waste as well as the precursor for ozone—volatile organic which would result from the emissions
application of fertilizer to the ground) compounds. Any PSD regulation of such pollutants.’’ CAA § 166(a).
and ammonium (NH4+), are also attempting to mitigate the ozone However, we do not interpret this
important to many of the public health impacts from NOX, notwithstanding the language to compel the action
and environmental impacts associated ozone NAAQS, would be unfounded commenters recommend. The phrase
with atmospheric nitrogen compounds. without also addressing this significant ‘‘result from emissions of such
However, because these nitrogen component. Thus, we conclude that, for pollutants’’ refers back to the first clause
compounds are not associated with PSD purposes, the contribution of NOX of the sentence which lists several
emissions of NOX from the stationary to the formation of ozone should be pollutants (‘‘hydrocarbons, carbon
sources subject to review under the PSD considered primarily in the context of monoxide, photochemical oxidants, and
program, we did not consider it the establishment of pollutant-specific nitrogen oxides’’) that are subject to
appropriate to factor them into the PSD regulations for ozone.9 section 166. We do not read this
review of the adequacy of the existing Like ozone, PM has several language to compel EPA to promulgate
NO2 increments. precursors, of which NOX is only one. a single regulation to address all such
These varied origins of nitrogen in the NO2 may be transformed to nitrate pollutants at once. Reading the sentence
atmosphere add to the difficulty of particulates by means of chemical as a whole, we interpret the language in
determining the specific source reactions in the atmosphere.10 However, section 166(a) to provide EPA with the
contributing to the total nitrogen discretion to separately promulgate
concentration. This, in turn, increases 7 Ozone is the oxidant found in the largest pollutant-specific PSD regulations for
quantities in the atmosphere. The EPA promulgated each of these four groups of pollutants
the difficulty of designing an emissions NAAQS for photochemical oxidants in 1971. The
control strategy for reducing the chemical designation of the standard was changed (which include ozone because it is
nitrogen contribution in a particular in 1979 from ‘‘photochemical oxidants’’ to ozone. formed by photochemical oxidants).
area. See 44 FR 8202 (February 8, 1979). Thus we believe our obligation in this
8 Particulate matter (PM) is composed of directly
action to promulgate pollutant-specific
B. Scope of Our Analysis emitted particles and secondarily formed particles.
PSD regulations for ‘‘nitrogen oxides’’
Secondary particulates are produced from gaseous
In the proposal, we explained that we pollutants, mainly NOX, SO2, ammonia, and some does not necessarily have to include
did not believe our pollutant-specific VOCs. Emissions of NOX can result in the formation consideration of the effects of ozone.
of particulate nitrates whose contribution to fine For similar reasons, we do not read
particles varies depending on geographic location
3 Some forms of NO are produced naturally (via
X
and other criteria.
the provisions of section 166 of the Act
lightning, soils, wildfires, stratospheric intrusion, 9 In the 1988 final preamble adopting the NO to require that EPA consider effects
2
and the oceans). attributable to PM when promulgating
4 Because NO is readily converted to NO in the
increments, we gave limited consideration to
2 whether limiting increases of NOX emissions would pollutant-specific PSD regulations for
atmosphere, the emissions of NOX reported by EPA worsen ozone ambient concentrations, in response
assume NOX in the form of NO2. In predicting to comments raising this issue. 53 FR at 40668. We
‘‘nitrogen oxides.’’ Congress established
ambient impacts that may result from emissions of did not, however, attempt to set the NO2 increments separate increments for PM, originally
NOX, initially is assumed to be emitted from to address ozone public health and welfare impacts, measured as total suspended particulate
sources as NOX. (40 CFR part 50 app W sec. 6.2.4.) nor do we believe that is required here, for the
5 Seven oxides of nitrogen are known to occur in
(or TSP), under the authority of section
reasons stated above. Increments for ozone have not
the atmosphere: nitric oxide (NO), nitrogen dioxide been established because of the technical difficulty
163 of the Act. Congress later authorized
(NOX), nitrate (NO3¥), nitrous oxide N2O), associated with predicting ambient concentration EPA to replace the TSP increments with
dinitrogen trioxide (N2O3), dinitrogen tetroxide changes resulting from a single stationary source. 61 increments for PM10. See CAA § 166(f).
(N2O4) and dinitrogen pentoxide (N2O5). FR 65764, 65776 (Dec. 13, 1996). Section 166(a) of the Act also directs
6 The term ‘‘welfare’’ is defined in the Act to 10 Nitrate is a major constituent of atmospheric

include, inter alia, ‘‘effects on soils, water, crops, PM. Due to limited scientific literature addressing
EPA to promulgate pollutant-specific
vegetation, man-made materials, animals, wildlife, the health impacts of nitrates, exposure currently is PSD regulations for any pollutants for
weather, visibility, and climate.’’ Section 302(h). analyzed as exposure to fine PM. (NAPAP, 1998.) which a NAAQS is established after the

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enactment of section 166. We interpret the benchmark against which we are to published since the last NAAQS review,
this language to apply to pollutants such judge ‘‘significant deterioration’’ of air several commenters believed that we
as PM2.5 for which we promulgated a quality. should have given greater attention to
NAAQS after 1977. Thus, it does not We do not believe that our decision to such later studies. These commenters
follow that section 166 must be read to define the bounds of our analysis as the believe these later studies show the
require that EPA consider PM effects range of effects considered in setting the growing seriousness of NOX effects in
when promulgating regulations for NOX. NAAQS is contrary to the court’s the form of ozone, PM and atmospheric
Another commenter asserted that the holding in EDF v. EPA. The court held nitrogen deposition (N deposition).12
court’s opinion in EDF v. EPA made it that EPA cannot use the NAAQS as the One commenter felt that we ignored a
abundantly clear that EPA cannot use ‘‘sole basis’’ for deriving the increment. lot of scientific information on NOX
any single NAAQS or NAAQS indicator 898 F.2d at 190. However, in this action, effects on ecosystems. Another
as the sole basis for the regulations we did not simply focus on the level of commenter argued that our focus on the
required by section 166 to address NOX. the NAAQS as a legal standard, as we review of the 1993 Criteria Document
Rather, the commenter stated, EPA must did in 1988. In this rulemaking action and 1995 Staff Paper for NOX was a
evaluate the impact of NOX with on remand, we considered the health ‘‘self-imposed limitation’’ that relied on
reference to the goals and purposes in and welfare effects that EPA evaluated incomplete scientific information
sections 101 and 160, which goals and to establish the NAAQS. But rather than considering the fact that new
purposes encompass protection of considering those effects in relation to information has been developed since
public health and welfare from ‘‘air the standards set forth in section 109, then.
pollution’’ without exception for any we evaluated those effects in relation to Although we did focus on the Criteria
specific pollutants or class of pollutants. the factors in sections 166(c) and 160 of Document and 1995 Staff Paper for
We recognize that emissions of NOX the Act. The court held that we could NOX, we did not wholly ignore new
contribute to a range of direct and not rely solely on the NAAQS itself to information as the commenters appear
indirect effects on health, welfare, and establish increments because of the to suggest. We considered information
AQRVs, but we believe this rulemaking emphasis in sections 166(c) and 160 on contained in more recent studies,
action should focus on those effects that special considerations, such as particularly those concerning the types
were considered by EPA in the protection of national wilderness areas, of effects on ecosystems associated with
development of the NAAQS for NO2. whose special values may be reflected atmospheric nitrogen deposition. We
This approach is appropriate because in the NAAQS but are not necessarily evaluated information published since
the need to develop PSD rules is tied to the only factors that determine the level completion of the last NAAQS review to
the existence of the NAAQS. As the of the NAAQS. See 898 F.2d at 190. determine whether there have been
court in EDF v. EPA acknowledged ‘‘the Thus, within the field of effects that significant advances in scientific and
ambient standards are the basic measure EPA found relevant when establishing technical information. The more recent
of air quality under the [Clean Air Act] the NAAQS, we narrowed our inquiry to data we reviewed has clearly broadened
and the controlling standards by no focus on the special considerations of our understanding of the ecological
means exclude any value that is the PSD and those effects that may occur in changes resulting from deposition in
subject of focus under the PSD some areas notwithstanding attainment general and N deposition in particular.
provisions.’’ 898 F.2d at 190 (emphasis of the NAAQS. This approach follows Recent information also provides us
in original). Thus, the health and directly from the court’s opinion in EDF with greater information about N
welfare effects that were evaluated by v. EPA. deposition trends and the speciation of
EPA when it established the NAAQS various N components. The collection of
should also be considered when EPA C. Data Considered in Our Analysis
these types of information is an
establishes regulations under section In our February 2005 notice, we essential step in the process of
166 to protect against significant proposed to focus primarily on the quantitatively defining the dose-
deterioration of air quality from NOX health and welfare information that we response relationship between
emissions. had compiled for the last periodic emissions of NOX and the various
The provisions of section 166 make review of the NO2 NAAQS. EPA is adverse effects being observed.
clear that EPA is to establish PSD required to conduct a periodic, However, even these later studies,
regulations (including an increment, if comprehensive analysis of available including ones supplied by some of the
appropriate) under this provision after scientific and technical data as part of commenters, do not enable us to
the establishment of a NAAQS for the its process for promulgating NAAQS in establish those relationships at this
applicable pollutants. In 1971, EPA first accordance with sections 108 and 109 of time.
established a single standard for NO2 as the Act. The last reevaluation of the We focused on the effects described in
both the primary and secondary NAAQS NAAQS for NOX was completed in the Criteria Document and 1995 Staff
addressing NOX. 36 FR 8186 (April 30, 1996. 61 FR 52852, November 8, 1996. Paper for NOX because these documents
1971). Congress then passed section 166 The most recently reviewed data for are the product of a rigorous process
of the Act in 1977 and gave EPA 2 years NOX is contained in the 1993 Criteria that is followed to validate and interpret
to complete its study and promulgate Document for NOX (‘‘1993 Criteria the information. In accordance with the
PSD regulations for ‘‘nitrogen oxides.’’ Document’’) and the associated 1995 Act, the NAAQS process begins with the
42 U.S.C. 7476(a). In addition, for OAQPS Staff Paper (‘‘1995 Staff Paper development of ‘‘air quality criteria’’
pollutants for which a NAAQS had not for NOX’’), as further explained below.11 under section 108 for air pollutants that
been promulgated by August 7, 1977, Although we also considered the ‘‘may reasonably be anticipated to
Congress gave EPA 2 years from the information contained in studies
promulgation of such standards to 12 The term ‘‘atmospheric nitrogen deposition’’

establish PSD regulation under section 11 The official titles of these documents are, refers to the process by which nitrogen compounds
166 of the Act. Id. The establishment of respectively, ‘‘Air Quality Criteria for Oxides of in the atmosphere are transferred to various
Nitrogen,’’ EPA, August 1993; and ‘‘Review of the surfaces, including water, soil, etc. Additional
PSD regulations (which may include National Ambient Air Quality Standards for discussion on this is provided in sections V and VI
increments) must necessarily follow the Nitrogen Oxides: Assessment of Scientific and of this preamble as related to indirect effects of
NAAQS because the NAAQS provides Technical Information,’’ EPA, September 1995. NO2.

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endanger public health or welfare’’ and Thus, while we believe it would be criteria as our guide. Consequently, we
that come from ‘‘numerous or diverse’’ consistent with congressional intent to might arrive at different conclusions for
sources. Section 108(a)(1). For each rely in the ordinary case on only the developing the NAAQS and increments
NAAQS review, the Administrator must information used in the most recent because of the differences in the legal
appoint ‘‘an independent scientific NAAQS review when establishing criteria for the two types of standards.
review committee composed of seven pollutant-specific PSD regulations As the court itself said, ‘‘a pollutant that
members of the National Academy of under section 166, the situation we has only mild public health effects but
Sciences, one physician, and one person faced with NOX was unique. Because severe effects on wilderness areas might
representing State air pollution control considerable time had passed since the demand a lower increment (measured as
agencies,’’ known as the Clean Air 1996 review of the NO2 NAAQS, we a percentage of its ambient standards)
Scientific Advisory Committee considered the more recent studies than one with severe health effects but
(CASAC). Section 109(d)(2)(A). CASAC discussed above. only mild effects on wilderness areas.’’
is charged with recommending revisions Because EPA is taking this action to EDF v. EPA, 898 F.2d at 190. Thus,
to the criteria document and NAAQS, fulfill a court remand of an increment while the Act seems to require that EPA
and advising the Administrator on originally established in 1988, the Act establish NAAQS and increments for
several issues, including areas in which could be read to suggest that we revert the same pollutant using different legal
additional knowledge is required to back to the information compiled in the standards, we believe it is important
appraise the adequacy and basis of NAAQS review that predated our initial nevertheless that the body of evidence
existing, new or revised NAAQS. action in 1988. When the NO2 used for both reviews should initially be
Section 109(d)(2)(B), (C). increments were originally developed subjected to the same level of Agency
‘‘Air quality criteria’’ must reflect the and promulgated, the most recent validation and review.
latest scientific knowledge on ‘‘all Criteria Document for oxides of nitrogen D. Analysis of Potential Effects
identifiable effects on public health or was EPA’s 1982 Criteria Document,
used for completing the periodic review This section contains a summary of
welfare’’ that may result from a
of the NO2 NAAQS promulgated on our review of the health and welfare
pollutant’s presence in the ambient air.
June 19, 1985 (50 FR 25532). However, effects associated with NOX reviewed by
42 U.S.C. 7408(a)(2). The scientific
because of the amount of time that has EPA as part of the reconsideration of the
assessments constituting air quality
passed since then, we do not believe it pollutant-specific PSD regulations for
criteria generally take the form of a
is reasonable to read the Act so NOX. Although EPA concluded from the
‘‘criteria document,’’ a rigorous review available evidence that there was no
of all pertinent scientific studies and narrowly in this case. Thus, we relied
on the most recent Criteria Document, basis in 1996 for revising the NO2
related information. The EPA also NAAQS, the objective of our latest
develops a ‘‘staff paper’’ to ‘‘bridge the because it represented the most recent
compilation of scientific and technical review of the same body of scientific
gap’’ between the scientific review and and technical evidence was to
the judgments the Administrator must evidence for purposes of NAAQS
determine whether there is any basis for
make to set standards. See Natural review, even though this was not the
proposing to modify the NO2
Resources Defense Council v. EPA Criteria Document we used to develop
increments, based on specific
(‘‘NRDC’’), 902 F.2d 962, 967 (D.C. Cir. the 1988 NO2 increments.
In the last periodic review of the NO2 percentages of those NAAQS, which are
1990). Both documents undergo part of the PSD regulations for NOX that
extensive scientific peer-review as well NAAQS, in 1996, EPA compiled
we promulgated in 1988. Our analysis of
as public notice and comment. See e.g., information that was not part of the
the health and welfare effects associated
62 FR 38654/1–2. scope of the previous NAAQS review.
with NOX included adverse health
Our focus on the 1993 Criteria Specifically, the 1993 Criteria Document
effects that were found to occur at levels
Document and the 1995 Staff Paper for and 1995 Staff Paper for NOX
at or near the NAAQS, as well as a
NOX is supported by the provisions of considered as part of the secondary
variety of direct NO2 welfare effects and
section 166 which make clear that EPA standard review ‘‘short- and long-term
indirect welfare effects resulting from
is to establish pollutant-specific PSD effects of nitrogen deposition on
the transformation of NO2 to other
regulations after the establishment of a biological, physical and chemical
nitrogen compounds in the atmosphere
NAAQS for the applicable pollutants. 42 components of ecosystems and the
which are then transferred to other
U.S.C. 7476(a). Under normal resulting effect of changes to these surfaces via N deposition.
circumstances, the Act provides that components on ecosystem structure and We noted earlier that the 1993 Criteria
EPA promulgate new PSD regulations function as well as the traditional issue Document and 1995 Staff Paper for NOX
under section 166, including new of visibility impairment, and materials added a level of review not contained in
increments if appropriate, within 2 damage.’’ The expanded scope is the previous periodic review of the
years from the promulgation of any particularly relevant to the types of NAAQS for NOX. That is, the most
NAAQS after 1977. 42 U.S.C. 7476(a). In effects that should be used to consider recent documents include evidence
such instances, the health and welfare the effectiveness of the PSD increments. concerning ‘‘short- and long-term effects
information used for the setting of the We do not interpret the court decision of N deposition on biological, physical
NAAQS would also be ‘‘current’’ for in EDF v. EPA 13 to mean that we should and chemical components of ecosystems
purposes of establishing pollutant- not consider the same data when and the resulting effect of changes to
specific PSD regulations. We believe establishing both the NAAQS and the these components on ecosystem
this timing was intended to enable EPA PSD increments for a particular structure and function as well as the
to rely upon the same body of pollutant, but rather that we would be traditional issues of visibility
information concerning a pollutant’s expected to weigh the same data impairment and materials damage.’’ The
health and welfare effects when it differently using the different legal consideration of such effects was our
establishes the NAAQS and the 13 The court pointed out that ‘‘the ‘goals and
primary focus for determining whether
subsequent PSD increments (or other purposes’ of the PSD program, set forth in § 160, are
the existing increments need to be
measure) defining significant air quality not identical to the criteria on which the ambient modified to satisfy section 166(c) of the
deterioration for the same pollutant. standards are based * * *’’ Act.

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1. Health Effects areas and their natural, recreational, may also be in a source’s plume. The
In 1996, EPA concluded that there scenic, or historic value(s), 1995 Staff Paper for NOX noted that
was no need to change the existing notwithstanding attainment of the despite the known light-absorbing
primary NAAQS for NO2 on the basis of NAAQS in PSD areas. qualities of NO2, ‘‘there are relatively
As mentioned earlier, the evidence we little data available for judging the
the health effects evidence available at
reviewed covered both direct (NO2) and actual importance of NO2 to visual air
that time. Nevertheless, for purposes of
indirect (other NOX), short- and long- quality.’’
evaluating the safe harbor NO2
term effects on biological, physical and
increments, we examined those effects b. Indirect Welfare Effects
chemical components of ecosystems and
which were found to occur at levels at The predominant welfare effects of
the resulting effect of changes to these
or near NAAQS. Of particular concern NO2 are indirect effects caused by
components on ecosystem structure and
were possible health effects resulting nitrogen compounds that have been
function. Information from selected later
from short-term exposure (e.g., less than studies was also reviewed to determine transformed from NO2 in the
3 hours), which might justify the extent to which our knowledge of atmosphere, such as nitric acid and
consideration of a short-term increment. the adverse effects of NOX had advanced nitrates. Studies have shown that
The short-term health effects of most since the 1996 review. A summary of nitrogen compounds can contribute to
concern at ambient or near-ambient our review of both direct and indirect various negative ecological effects when
concentrations of NO2 involved mild effects of NO2 is presented below. they are transferred from the
changes in airway responsiveness atmosphere to a variety of surfaces, e.g.,
(airway constriction and narrowing) and a. Direct Welfare Effects water, soil, vegetation, and other
decrease in pulmonary function. In The 1993 Criteria Document and 1995 materials, by the process of N
neither case were the observed effects Staff Paper for NOX provided evidence deposition.’’ 14
considered serious: Observations of that exposure to NO2 can cause Nitrogen deposition occurs in several
airway constriction did not reveal potentially adverse effects on plants and forms, including wet (rain or snow), dry
airway inflammation and were fully materials, and visibility impairment (transfer of gases or particles), or occult
reversible, and changes in pulmonary (primarily in the form of local-scale (fog, mist or cloud) deposition. Nitrogen
function were considered small. plume discoloration). These effects are deposition occurs primarily as nitrates,
Moreover, most of the observed effects summarized below. See also 70 FR which are formed in the atmosphere by
occurred at ambient concentrations of 8892–8893. the oxidation of NO and NO2, or as
NO2 that were above levels typically Experimental studies involving ammonia, which is released by
monitored in areas meeting the NAAQS, exposure of plants to NO2 for periods agricultural or soil microbial activity.
i.e., PSD areas. less than 24 hours produced effects on When the nitrogen transfer process
We also considered effects based on the growth development and involves acids (e.g., nitric acid) or
longer-term (2-week periods), low-level reproduction of plants. However, the acidifying compounds, the deposition
exposure to NO2 involving increased pollutant concentrations used in these process is referred to as ‘‘acidic
respiratory illnesses among children. experiments were well above deposition.’’
These studies involved situations of concentrations observed in the ambient For the February 2005 proposal, we
indoor exposure to NO2 emitted from air and at a frequency of occurrence not reviewed various indirect effects
gas stoves. Various limitations typically found in the U.S. The resulting from N deposition and which
associated with these clinical studies experimental effects were not can be categorized according to the
made it difficult to extrapolate the considered significant at concentrations specific ecosystem being affected. These
results in a manner that would yield at or below the level of the NAAQS. include terrestrial, wetland, and aquatic
estimates of health impacts associated The effects of NO2 on materials were ecosystems. These different effects are
with outdoor NO2 exposure. See not well determined according to the summarized below. See also 70 FR
February 2005 proposal at 70 FR 8890– evidence contained in the 1993 Criteria 8888–8894.
8891. Document. The limited information As with the other effects we
showed that it was difficult to considered, we focused primarily on the
2. Welfare Effects evidence contained in the 1993 Criteria
distinguish NO2 or any other agent as
In our February 2005 proposal, we the single causative agent for observed Document and 1995 Staff Paper for the
indicated that the 1996 periodic review damage; many agents, together with a NO2 NAAQS. Other more recent studies
of the NO2 NAAQS concluded that the number of environmental stresses, act were also summarized, although we did
available body of scientific and on the surface of materials over time. not consider ourselves to be under an
technical evidence did not provide an Finally, NO2 can cause visibility obligation to consider such evidence
adequate basis for setting a separate impairment in the form of a since it has not yet undergone the
secondary standard to address welfare discoloration effect most noticeable as extensive level of validation and review
effects of NOX. See 70 FR at 8891. local-scale (within 50 kilometers of the that will be necessary if it is to be
However, as discussed earlier, the goals source) or ‘‘reasonably attributed incorporated into the section 108
and purposes of the PSD program give impairment.’’ This effect can be Criteria Document for NOX.
special weight to the protection of observed as a contrast or color The following subsections summarize
welfare, air quality values and areas of difference between a plume and a the various indirect effects of NO2 on
special national and regional interest viewed background, such as the sky or
14 Under certain conditions, in terrestrial or
(national parks, national wilderness a distant object. However, some studies
agricultural systems, some amount of nitrogen
areas, etc.) Accordingly, EPA reviewed have shown that brownish discoloration deposition can enhance growth of some forest
the information on welfare effects to can result from the presence of particles species and crops. However, in areas where
determine whether it supported a need alone, thus making it difficult to deposition occurs in excess of plant and microbial
on our part to modify the existing NO2 determine a reliable relationship demand (also known as nitrogen saturation) the
added nitrogen can disturb the nitrogen cycle,
increments to provide additional between ground-level concentrations of contributing to such negative effects as increased
environmental protection, especially for NO2 at any given point and plant susceptibility to some natural stresses and
such areas as national parks, wilderness discoloration caused by particles that modification of interplant competition.

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ecosystems, including terrestrial 2001.) Some western forest areas may changes of interplant competition. The
systems (i.e., plant communities), also be experiencing nitrogen saturation 1995 Staff Paper for NOX reported that,
wetlands, and aquatic systems. We conditions, although the role of N based on the evidence reviewed in the
believe that the effects summarized are deposition may vary from one location 1993 Criteria Document, ‘‘the staff
potentially relevant to an evaluation of to another (Fenn, 1998, 2003). believes we can anticipate similar
the pollutant-specific PSD regulations Aside from the effects of soil effects from atmospheric N deposition
for NOX because these effects have been acidification, some studies have shown in the United States* * *.’’ However, in
observed in areas of the country that are that increased N deposition can alter the 1995 Staff Paper for NOX, EPA
attaining the NAAQS. tree susceptibility to frost damage, found no documentation providing
(1) Terrestrial ecosystems. Soils are insect and disease attack, and plant sufficient evidence that such species
the largest pool of nitrogen in forest community structure. However, other changes have occurred or were
ecosystems, although such nitrogen is studies have not shown that similar occurring at the time in the U.S.
generally not available for plants until it results occur. In all, the studies (3) Aquatic ecosystems. Nitrogen
has been mineralized by bacteria (Fenn, evaluated in the 1993 Criteria Document deposition may adversely affect aquatic
1998). Another important source of which focused on the impact of ecosystems as a result of either
nitrogen is atmospheric deposition, excessive inputs of nitrogen in forest acidification or eutrophication. Both
which may cause or contribute to ecosystems showed mixed results. The processes can cause a reduction in water
significant adverse changes in terrestrial long response time of trees to quality that makes the body of water
ecosystems, including soil acidification, environmental stresses has made it unsuitable for many aquatic organisms.
increase in soil susceptibility to natural difficult to fully understand how acid The 1995 Staff Paper for NOX
stresses, and alterations in plant species rain may affect trees. It is also difficult indicated that growing evidence
mix. to isolate the possible effects of acid rain supported the concern that the impact
When excess nitrogen input causes from stresses resulting from other of N deposition on sensitive aquatic
soil acidification, it can alter the natural and anthropogenic origins. systems ‘‘may be significant.’’ Later
availability of plant nutrients (i.e., However, more recent studies appear to studies have shown much more clearly
calcium and magnesium) and expose provide some evidence that acid the harm that can result. Atmospheric
tree roots to toxic levels of aluminum deposition has caused the death of red nitrogen can enter lakes and streams
and manganese, thereby having an spruce trees, particularly at higher either as direct deposition to the water
adverse effect on tree growth. It can also elevations in the Northeast by surfaces or as N deposition to the
lead to the mobilization of aluminum decreasing cold tolerance, and may be watershed of which they are a part. In
from the soil as nitrates are leached in part responsible for the extensive loss some cases, nitrate may be temporarily
from the soil and transported to of sugar maple in Pennsylvania. stored in snow packs from which it is
waterways, where the aluminum can (Driscoll, 2001.) subsequently released in more
exhibit toxic effects to aquatic Finally, in terrestrial systems in concentrated form in snowmelt. In other
organisms.15 which the pre-existing balance is cases, nitrogen deposited to the
It is worth noting that air pollution is marked by a competition among species watershed may subsequently be routed
not the sole cause of soil change; high for the available nitrogen, additional through plants and soil microorganisms
rates of acidification are occurring in nitrogen inputs, such as N deposition, and transformed into other inorganic or
less polluted regions of the western U.S. may bring about an alteration of the organic nitrogen species which, when
because of natural internal soil species mix. That is, a displacement of they reach the water system, are only
processes, such as tree uptake of nitrate one kind of vegetation (e.g., plants, indirectly related to the original
and nitrification associated with grasses) with another may occur. While deposition. To complicate matters,
excessive nitrogen fixation. Although N the 1995 Staff Paper for NOX noted that recent studies suggest that, in addition
deposition can accelerate the there were no documented accounts of to the contribution of nitrogen from
acidification of soils, the levels of terrestrial ecosystems undergoing anthropogenic sources, nitrogen
nitrogen necessary to produce species shifts due to N deposition in the released from the weathering of
measurable soil acidification are quite U.S., later research provides some nitrogen-bearing bedrock, not
evidence suggesting that elevated N commonly considered in the
high. The 1993 Criteria Document
deposition can contribute to shifts of biogeochemical cycling of nitrogen, may
indicated that, at that time, N deposition
species compositions (e.g., Allen, 1998; contribute a ‘‘surprisingly large
had not been directly associated with
Bowman, 2000). amount’’ of nitrate to natural waters.
the acidification of soils in the U.S. (2) Wetlands. Wetlands include (Dahlgreen, 2002.)
More recent information suggests that in swamps, marshes, and bogs. In such Acidification may occur in two ways:
parts of the Northeast, for example, acid lands, water saturation is the dominant Chronic (long-term) acidification and
deposition has resulted in the factor determining the nature of soil episodic (short-term or seasonal)
accumulation of sulfur and nitrogen in development and the types of plants acidification. Episodic acidification is
the soil beyond the levels that forests and animal communities living in the more likely to be the primary problem
can use and retain, and has accelerated soil and on its surface. These areas in most situations, with chronic
the leaching of base cations, such as function as habitats for plant and acidification occurring mainly where
calcium and magnesium, that help wildlife (among other useful excessive nitrogen saturation exists.
neutralize acid deposition. (Driscoll, environmental purposes), including (NAPAP, 1998.) The main concern with
15 Aluminum from soil seldom appears in aquatic
many rare and threatened plant species. acidification of aquatic ecosystems is
systems because natural aluminum minerals are
Some of these plants adapt to systems associated with freshwater systems.
insoluble in the normal pH range of natural waters. low in nitrogen or with low nutrient Acidification impairs the water quality
However, the term ‘‘aluminum mobilization’’ refers levels. Long-term studies (greater than 3 of lakes and streams by lowering the pH
to the conversion of aluminum in acidic soils into years) of increased nitrogen loadings to levels, decreasing acid-neutralizing
dissolved forms and its transport, as runoff or
subsurface flow, to water systems. Mobilized
wetland systems in European countries capacity, and increasing aluminum
aluminum can then alter the acid/base property of have reported that increased primary concentrations (through the process of
natural water systems (Wang, 2004). production of biomass can result in aluminum mobilization from the soil, as

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explained earlier). High levels of U.S. result from both nitrate and eutrophication in lakes with high
aluminum, considered toxic to fish and ammonium. concentrations of natural phosphorus.
other organisms, have been recorded in The key to creating a linkage between Other lakes, including some high-
watersheds in the Northeast associated levels of N deposition and the elevation lakes in the Rocky Mountains
with low levels of acid deposition. eutrophication of aquatic systems is to and Sierra Nevada, are very low in both
(Driscoll, 2001.) demonstrate that the productivity of the phosphorus and nitrogen; addition of
Acid deposition may also increase the system is limited by nitrogen nitrogen can increase biomass and
conversion of mercury to organic availability, and to show that N contribute to eutrophication in these
(methyl) mercury in lakes where it is deposition is a major source of nitrogen lakes also.
absorbed by aquatic organisms and to the system. Thus, while it appears
that nitrogen inputs to aquatic systems (4) Visibility impairment (Regional
leads to increasing concentrations in the
may be of general concern for eutrophic Haze). Nitrate particulates are formed as
food chain. Human consumption of fish
conditions, the significance of nitrogen a result of chemical reactions involving
containing high levels of methylmercury
can lead to problems with the central input will vary from site to site. (1995 NO and NO2 with other substances in
nervous system. Staff Paper for NOX at 77.) the atmosphere, such as ammonia.
Regions of North America differ in A 1993 National Research Council These particulates, as both fine and
their sensitivity to acidic deposition and report identifying eutrophication as the coarse particles, are considered to be
in the amount of acidic deposition they most serious pollution problem facing more responsible for visibility
the estuarine waters of the U.S. was impairment than NO2 directly. The fine
receive. Some parts of the eastern U.S.
reported in an EPA document issued in particles can remain airborne for
are highly sensitive and chronically or
1997, entitled ‘‘Nitrogen Oxides: considerable periods of time, may be
episodically receive damaging
Impacts on Public Health and the transported long distances from the NOX
concentrations of acidic deposition. For
Environment’’ (p. 79). Nitrogen input is source, and impair visibility by either
example, a 2001 report indicates that 41
a major concern because nitrogen is the scattering light or absorbing it.
percent of lakes in the Adirondack
limiting nutrient for algae growth in
Mountain region of New York and 15 The major cause of visibility
many estuaries and coastal water
percent of lakes in New England show impairment in the East is sulfates, not
systems. In contrast to the
evidence of either chronic or episodic nitrates which account for only 7 to 16
eutrophication concern, acidification
acidification, or both. (Driscoll, 2001.) typically is not a concern, because percent of the light extinction in the
Other sensitive regions, such as the estuaries and coastal waters receive East. However, nitrates in the West are
western U.S., are unlikely to suffer substantial amount of weathered responsible for up to 45 percent of the
adverse chronic effects but may material from terrestrial ecosystems and light extinction.
experience acidic conditions more on an from exchange with sea water.
episodic basis. Certain high-elevation Recent studies tend to provide more
Estimation of the contribution of comprehensive documentation of
western lakes, in particular, are subject atmospheric N deposition to the
to episodes of acidic deposition. certain adverse effects than were
eutrophication problem can be difficult reported earlier in the 1993 Criteria
Eutrophication generally is a natural because of the various direct
process by which aquatic systems are Document. However, even in such later
anthropogenic sources of nitrogen,
enriched with the nutrients, including studies the inability to establish
including agricultural runoff and
nitrogen, that are presently limiting for quantifiable dose-response relationships
sewage. Some studies have shown that
primary production in that system. NOX and the various types of
nitrogen deposited from the atmosphere
However, this process can be can be a significant portion of the total ecosystems remains to be a key problem.
accelerated by increased nutrient input nitrogen loadings in specific locations, More study is needed to resolve this
resulting from anthropogenic sources, such as the Chesapeake Bay—the largest problem.
e.g., agricultural runoff, urban runoff, of the 130 estuaries in the U.S. It has VI. Final Actions
leaking septic systems, sewage been estimated that the proportion of
discharge. Studies have also shown that the total nitrate load to the Bay In the February 2005 proposal, we
N deposition may directly and attributable to N deposition ranges from presented for public review and
indirectly play a role in accelerated 10 to 45 percent (NAPAP, 1998). comment the results of our review of the
eutrophication. When nitrogen is a In most freshwater systems, including scientific and technical evidence. We
limiting nutrient, input from various lakes and streams, phosphorus, not described the various health and welfare
origins can make a water system prone nitrogen, is the limiting nutrient. Thus, effects associated with NO2 and other
to eutrophication, with impacts ranging eutrophication by nitrogen inputs will forms of NOX and proposed our
from the increased turbidity and floating only be a concern in lakes that are decision about the adequacy of the
mats of macro algae shading out chronically nitrogen limited and have a existing NO2 increments. On the basis of
beneficial submersed aquatic vegetation substantial total phosphorus the available information, we proposed
habitat, to the exacerbation of noxious concentration. This condition is not to change the existing PSD
algae blooms, to the creation of low or common only in lakes that have regulations for NOX. We also proposed
no-oxygen conditions which negatively received excessive inputs of to find that the existing regulations,
affect fish populations. The National anthropogenic phosphorus or, in rare including the increments for NOX
Park Service (NPS) has reported that cases, have high concentrations of expressed as annual average ambient
loadings of total N deposition (wet and natural phosphorus. In the former case, concentrations of NO2 satisfied the
dry) have caused changes in aquatic the primary dysfunction of the lakes is requirements under sections 166(c) and
chemistry and biota in the Rocky an excess supply of phosphorus, and 166(d) of the Act.
Mountain National Park’s high elevation controlling N deposition would be an
ecosystems. (U.S. Department of the ineffective method of gaining water In today’s action, we are retaining the
Interior, 2002.) In the same report, the quality improvement. In the latter case, existing NO2 increments without
NPS noted that increasing trends in N N deposition can measurably increase change. In addition, we are amending
deposition at many parks in the western biomass and thus contribute to the text of our PSD regulations at 40

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CFR 51.166 16 to clarify that any State of our regulations in conjunction with occur from any source in the area. When
may employ an alternative approach to the three primary characteristics of the the maximum pollutant concentration
the NO2 increments if the State’s increments that were challenged. We increase defined by the increment has
approach meets certain requirements. believe our obligations under section been reached, additional PSD permits
Separately, we will soon publish a 166(c) of the Act are satisfied when all cannot be issued until sufficient
supplemental notice of proposed of our pollutant-specific PSD amounts of the increment are ‘‘freed up’’
rulemaking that provides more details regulations for NOX (including the level via emissions reductions that may be
on how a State that achieves the NOX and other characteristics of any required by the permitting authority.
emission reductions under CAIR can increment) collectively satisfy the Moreover, the air quality in a region
utilize its CAIR-related reductions as factors applicable under 166(c) of the cannot deteriorate to a level in excess of
part of its alternative approach to the Act. the applicable NAAQS, even if all the
NO2 increments. In this section of the increment has not been consumed.
preamble, we describe our rationale for a. Increment System Thus, areas where the air pollutant
the final action we are taking today on Two of the factors applicable under concentration is near the level allowed
the NO2 increments and respond to section 166(c) are fulfilled by employing by the NAAQS may not be able to use
significant comments we received on an increment system in our pollutant- the full amount of pollutant
the relevant portions of the proposal. specific PSD regulations for NOX. In this concentration increase allowed by the
action, we are retaining this basic increment.
A. Retain Existing Increment System for framework for our pollutant-specific Thus, an increment is a quantitative
NOX PSD regulations for NOX. value that establishes the ‘‘maximum
1. Existing Characteristics of the An increment-based program fulfills allowable increase’’ for a particular
Regulatory Scheme Fulfill Statutory our obligation under section 166(c) to pollutant. It functions, therefore, as a
Criteria provide ‘‘specific numerical measures specific numerical measure that can be
against which permit applications may used to evaluate whether an applicant’s
In the February 2005 proposal, we
be evaluated.’’ Under section 165(a)(3) proposed project will cause or
addressed how several aspects of our
of the Act, a permit applicant must contribute to air pollution in excess of
PSD regulations for NOX that were not
demonstrate that emissions from the allowable levels.
controverted in the EDF v. EPA court Increments also satisfy the second
challenge served to satisfy many of the proposed construction and operation of
a facility ‘‘will not cause, or contribute factor in section 166(c) by providing ‘‘a
factors applicable under section 166(c). framework for stimulating improved
This analysis helps show how our PSD to, air pollution in excess of any (A)
maximum allowable increase or control technology.’’ Increments
regulations for NOX, as a whole, satisfy establish an incentive to apply more
the criteria in section 166. maximum allowable concentration for
any pollutant.’’ 42 U.S.C. 7475(a)(3). stringent control technologies in order
We continue to believe that many of to avoid violating the increment. Given
the factors applicable under section An increment is the maximum
allowable increase of an air pollutant that the PSD increment level may be
166(c) are fulfilled by the elements of consumed by cumulative emissions
our regulations that were not challenged that is allowed to occur above the
applicable baseline concentration. The increases over time, it may become
in the EDF v. EPA case. Since we do not necessary to impose increasingly more
interpret the court’s decision to require baseline concentration in a particular
area is generally the ambient pollutant stringent levels of control on new
us to reevaluate the entire regulatory sources in order to avoid violating the
framework of the PSD regulations for concentration at the time the first
complete PSD permit application is increment or ensuring that there will be
NOX we established in 1988, with increment remaining for additional
respect to option 1 of the proposal, we submitted (i.e., the baseline date) 17 by
a new major stationary source or a major economic growth. The more stringent
focused our review on the level, time control technologies utilized in these
period, and pollutant form (NO2) modification locating in or otherwise
affecting that area.18 By establishing the areas may become the basis of BACT
reflected in the increments we included determinations elsewhere, as the
in the 1988 PSD regulations for NOX. maximum allowable level of ambient
pollutant concentration increase in a technologies become more
Thus, when a factor applicable under commonplace and the costs tend to
section 166(c) was fully satisfied by an particular area, an increment defines
‘‘significant deterioration.’’ Once the decline. See also S. Rep. 95–127 at 18,
aspect of the existing regulations that 30 (3 LH at 1392, 1404) (‘‘the
was not questioned by the court, we did baseline date associated with the first
proposed new major stationary source incremental ceiling should serve as an
not consider that factor any further in incentive to technology, as a potential
our evaluation of the characteristics of or major modification in an area is
established, the new emissions from source may wish to push the frontiers of
the increment. technology in a particular case to obtain
In many cases, an aspect of our that source consume a portion of the
increment in that area, as do any greater productive capacity within the
regulations that was not controverted in limits of the increments’’).
the court challenge partially contributes subsequent emissions increases that
Because the existing increment-based
to the fulfillment of an applicable factor regulatory framework, which was not
17 This date is actually identified as the ’minor
but does not fully satisfy that factor. In source baseline’’ date in EPA regulations. 40 CFR controverted in EPA v. EDF, satisfies
these instances, to determine if changes 51.166(b)(14); 40 CFR 52.21(b)(14). Because the these criteria we are retaining the
to the increments are necessary to baseline concentration does not include emissions increment approach in this action.
satisfy the factors applicable under from certain major sources that consume increment, However, we recognize that an
EPA has distinguished between the ’minor source
section 166(c), we also considered the baseline’’ date and the ’major source baseline date.’’ increment system is not the only way to
effectiveness of the unchallenged parts See 40 CFR 51.166(b)(13)–(14); 40 CFR fulfill the requirements of section 166 of
52.21(b)(13)–(14). the Act. Congress did not require EPA
16 Section 51.166 of the CFR contains minimum 18 For PSD baseline purposes, a source generally
to utilize increments in its PSD
requirements for the submittal and adoption of ‘‘affects’’ an area when its new emissions increase
regulations that are part of a SIP. We are not making is projected to result in an ambient pollutant
regulations for NOX but gave EPA the
similar changes to the Federal PSD regulations at increase of 1 µg/m3 (annual average) or more of the discretion to employ increments if
40 CFR 52.21. pollutant. appropriate to meet the criteria and

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goals and purposes set forth in sections preservation of clean air resources.’’ In existing sources, fulfill the goals set
166 and 160 of the Act. 42 U.S.C. those areas where clean air resources forth in sections 160(4) and 160(5) of the
7474(d); EDF v. EPA, 898 F.2d at 185 may not require as much protection, Act. These goals require that PSD
(‘‘Congress contemplated that EPA more growth is allowed. By employing programs in one State not interfere with
might use increments’’). Thus, in this an intermediate level (Class II areas) and the PSD programs in other States and
action, we are also allowing States to higher level (Class III areas), this that PSD programs assure that any
develop alternatives to an increment classification scheme helps ensure that decision to permit increased air
system at their discretion, and to submit growth can occur where it is needed pollution is made after careful
any such alternative program to EPA so (Class III areas) without putting as much evaluation and public participation in
that we can determine whether it pressure on existing clean air resources the decisionmaking process. For the
satisfies the requirements of section 166. in other areas where some growth is still same reasons set forth in our proposal,
In addition, in a separate rulemaking desired (Class II areas). 70 FR at 8896, we continue to believe
action, we are continuing to develop an By redesignating an existing Class II these factors are fulfilled by employing
alternative regulatory framework that area to Class III, States may the permit review procedures.
would enable a State to demonstrate accommodate economic growth and air
quality in areas where the Class II d. Air Quality Related Values Review by
that the requirements of section 166 are
increment is too stringent to allow the Federal Land Manager and Permitting
satisfied by reducing NOX emissions
siting of new or modified sources. The Authority
from existing sources under the CAIR
and other similar programs. procedures specified by the Act for such Under an increment approach, we
a redesignation require a commitment of consider the review of AQRVs in Class
b. Area Classifications the State government to the creation of I areas by the Federal Land Manager
Having increments set at different such an area, extensive public review, (FLM) and State permitting authority to
levels for each class of PSD area helps participation in the SIP area be an additional measure that helps to
to fulfill two of the factors applicable redesignation process, and a finding that satisfy the factors in sections 166(c) and
under section 166(c) of the Act. Under the redesignation will not result in the 160(2) which require that EPA’s PSD
the three-tiered area classification applicable increment being exceeded in regulations for NOX protect air quality
scheme established by Congress, Class I a nearby Class I or Class II area. See 42 values, and parks and other special
areas are areas where especially clean U.S.C. 7474(a)–(b) (Section 164(a)–(b)). areas, respectively. In the 1988
air is most desirable. The original Class Our 1988 analysis, 53 FR at 3702–05, rulemaking addressing PSD for NOX,
I areas established by Congress included and the subsequent issuance of PSD EPA extended the AQRV review
national parks, wilderness areas, and permits for major new and modified procedures set forth in sections
other special areas that require an extra sources of NOX since that time 19 tend 51.166(p) and 52.21(p) to cover NO2. 53
level of protection. It stands to reason to confirm that, with the existing FR at 3704. These AQRV review
that the most stringent increment is increment levels, the three-tiered procedures were established based on
imposed in Class I areas. In contrast, classification system has allowed for section 165(d) of the Act, and they were
Class III areas, which are those areas in economic growth, consistent with the originally applied only in the context of
which a State wishes to permit the preservation of clean air resources. the statutory increments for PM and
highest relative level of industrial However, we do not believe that this SO2. However, because they also
development, have the least stringent framework alone completely satisfies address many of the factors applicable
increment level. Areas that are not the factors applicable under section under section 166(c) of the Act, EPA
especially sensitive or that do not wish 166(c) of the Act. The increment that is also applied them to NOX through
to allow for a higher level of industrial employed for each class of area is also regulation.
growth are classified as Class II. When relevant to an evaluation of whether the Section 165(d) creates a scheme in
Congress established this three-tiered area classification scheme achieves the which the FLM and permitting authority
scheme for SO2 and PM, it intended that goals of the PSD program. We discuss must review the impacts of a proposed
Class II areas be subject to an increment the increments further below. new or modified source’s emissions on
that allows ‘‘moderately large increases AQRVs. The Act assigns to the FLM an
c. Permitting Procedures ‘‘affirmative responsibility’’ to protect
over existing pollution.’’ H.R. Rep. 95–
294, 4 LH at 2609. The Petitioners in Two of the factors applicable under the AQRVs in Class I areas. The FLM
EDF v. EPA did not contest EPA’s section 166(c) are fulfilled by the case- may object to or concur in the issuance
decision in 1988 to employ this same by-case permit review procedures that of a PSD permit based on the impact, or
classification scheme in our pollutant- are built into our existing regulations. lack thereof, that new emissions may
specific PSD regulations for NOX. The framework of our existing PSD have on any affected AQRV that the
Establishing the most stringent regulations employs the preconstruction FLM has identified. If the proposed
increments in Class I areas helps fulfill permitting system and procedures source’s emissions do not cause or
EPA’s obligation to establish regulations required under section 165 of the Act. contribute to a violation of a Class I
for NOX that ‘‘preserve, protect, and 42 U.S.C. 7475. These requirements are increment, the FLM may still prevent
enhance the air quality’’ in parks and generally reflected in sections 51.166 issuance of the permit by demonstrating
special areas. Class I areas are primarily and 52.21 of EPA’s PSD regulations in to the satisfaction of the permitting
the kinds of parks and special areas Title 40 of the Code of Federal authority that the source or modification
covered by section 160(2) of the Act. Regulations. These permitting and will have an adverse impact on AQRVs.
With the air quality in Class I areas review procedures, which we interpret Section 165(d)(2)(C). On the other hand,
subject to the greatest protection, this to apply to construction of new major if the proposed source will cause or
scheme then provides two additional sources and to major modifications at contribute to a violation of a Class I
area classifications with higher increment, the permitting authority
19 EPA does not formally track the issuance of
increment levels to help satisfy the goal (State or EPA) shall not issue the permit
PSD permits across the country, but EPA’s Regional
in section 160(3) of the Act that EPA Offices have confirmed that various PSD permits for
unless the owner or operator
‘‘insure that economic growth will occur sources of NOX have been issued by many of the demonstrates to the satisfaction of the
in a manner consistent with States in their respective jurisdictions. FLM that there will be no adverse

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impact on AQRVs.20 Thus, the protection, beyond that provided by agrees that a proposed project will
compliance with the increment increments. The Senate committee adversely affect AQRVs, the parks and
determines whether the FLM or the report stated the following: ‘‘A second other special areas will be protected by
permit applicant has the burden of test of protection is provided in denial of the permit or by requiring the
satisfactorily demonstrating whether or specified Federal land areas (Class I applicant to modify the project to
not the proposed source’s emissions areas), such as national parks and alleviate the adverse impact. Although it
would have an adverse impact on wilderness areas; these areas are also is not the final decisionmaker on this
AQRVs.21 subjected to a review process based on question in such a situation, the FLM
In our February 2005 proposal, we the effect of pollution on the area’s air plays an important and material role by
referred to this process as the ‘‘FLM quality related values.’’ S. Rep. 95–127, raising these issues for consideration by
review.’’ However, we recognize this at 4 LH at 1401. the permitting authority, which in the
term is somewhat of an One commenter asserted that the majority of cases will be the State.
oversimplification because it fails to AQRV review process is not effective in Furthermore, we have not asserted
account for the role of the State protecting air quality in national parks that the AQRV review process alone is
permitting authority. In this final action, and wilderness areas because the FLM sufficient to satisfy the requirements of
we more precisely describe this process does not have unilateral authority to section 166(c) for NOX. As discussed
as the review of AQRVs by the FLM and prevent the issuance of a permit when below, we believe the statutory factors
permitting authority. it alleges that a proposed new source or are fulfilled when the review of AQRVs
Incorporating these AQRV review modification will have an adverse is applied in conjunction with
procedures into the PSD regulations for impact on an AQRV. We recognize that increments and other aspects of our PSD
NOX helps to provide protection for the FLM has the burden to convince the regulations.
parks and special areas (which are permitting authority that there will be
generally the Class I areas subject to this an adverse impact on AQRVs in Several commenters recommended
review) and air quality values (which situations where the proposed project that we improve the FLM review
are factors considered in the review). As will not cause an increment to be process by providing specific guidance
we stated in the proposed rule, we violated. Nevertheless, we do not agree on how to evaluate and manage adverse
believe the term ‘‘air quality values’’ that the effectiveness of this process for impacts on AQRVs from NOX emissions.
should be given the same meaning as reviewing impacts on AQRVs is These commenters called for a more
‘‘air quality related values.’’ Legislative diminished simply because the ultimate specific framework or systematic
history indicates that the term ‘‘air decision to issue or deny a permit does approach for conducting the review of
quality value’’ was used interchangeably not rest with the FLM in all cases. impacts on AQRVs and determining
with the term ‘‘air quality related value’’ While the permitting authority has the whether impacts are adverse. Some
(AQRV) regarding Class I lands.22 discretion to disagree with the FLM’s requested that EPA provide more
Section 166(d) of the CAA provides analysis, that discretion is not definition of the concept of AQRVs and
that EPA may promulgate measures unfettered. See In the matter of Hadson circumstances when an AQRV is
other than increments to satisfy the Power 14—Buena Vista, 4 EAD 258, 276 adversely impacted.
requirements of section 166. Legislative (Oct. 5, 1992) (opinion of EPA’s We recognize that the process of
history indicates that the AQRV review Environmental Appeals Board in PSD reviewing impacts on AQRVs is
provisions of section 165(d) were Appeal No. 92–3, 92–4, 92–5). The somewhat ambiguous because it is
intended to provide another layer of permitting authority must carefully loosely defined. The CAA does not
consider the FLM’s analysis. If a define AQRV, except to note that it
20 Even if such a waiver of the Class I increment permitting authority is not convinced includes visibility. Section 165(d)(1)(B).
is allowed upon a finding of no adverse impact, the that there will be an adverse impact on Some additional insight can be gained
source must comply with such emissions AQRVs from the proposed facility, the from the following description in
limitations as may be necessary to ensure that the
Class II increment for SO2 or PM is not exceeded.
permitting authority must provide a legislative history:
Section 165(d)(2)(C)(iv). In 1988, EPA made this ‘‘rational basis’’ for such a conclusion. The term ‘‘air quality related values’’ of
provision applicable to the PSD provisions for NOX, 50 FR 28549 (July 12, 1985); Hadson Federal lands designated as class I includes
with a cap of 25 µg/m3 ¥ the NO2 Class II Power at 276. In addition, our visibility the fundamental purposes for which such
increment. 53 FR at 3704; 40 CFR 51.166(p)(4) and
52.21(p)(5).
regulations require that States provide lands have been established and preserved by
21 In response to concerns that Class I increment an explanation when they disagree with the Congress and the responsible Federal
would hinder growth in areas surrounding the Class an FLM’s conclusion that visibility will agency. For example, under the 1916 Organic
I area, Congress established Class I increments as a be adversely impacted. 40 CFR Act to establish the National Park Service (16
means of determining where the burden of proof 51.307(a)(3). The District of Columbia U.S.C. 1), the purpose of such national park
should lie for a demonstration of adverse effects on lands ‘‘is to conserve the scenery and the
AQRVs. See Senate Debate, June 8, 1977 (3 LH at
Circuit Court has recently observed that
natural and historic objects and the wildlife
725). a State must justify its decision in
therein and to provide for the enjoyment of
22 See S. Rep. 95–127, at 12, reprinted at 3 LH at writing when it disagrees with an FLM the same in such manner and by such means
1386, 1410 (describing the goal of protecting ‘‘air report finding an adverse impact on as will leave them unimpaired for the
quality values’’ in ‘‘Federal lands—such as national visibility. See National Parks
parks and wilderness areas and international enjoyment of future generations.’’
parks,’’ and in the next paragraph and subsequent Conservation Ass’n v. Manson, No. 04–
text using the term ‘‘air quality related values’’ to 5327, slip op. at 8 (D.C. Cir. July 1, S. Rep. 95–127 at 36, reprinted at 3 LH
describe the same goal); id. at 35, 36 (‘‘The bill 2005). at 1410.
charges the Federal land manager and the The value of the FLM review However, we are not prepared at this
supervisor with a positive role to protect air quality
values associated with the land areas under the
procedure is that it requires a review of time to provide further definition for
jurisdiction of the [FLM]’’ and then describing the impacts on AQRVs by the FLM and these concepts in this rulemaking action
statutory term as ‘‘air quality related values’’). H.R. permitting authority for each project for pollutant-specific PSD regulations
Report 95–564 at 532 (describing duty of that may have an adverse impact on for NOX. We believe the existing AQRV
Administrator to consider ‘‘air quality values’’ of
the tribal and State lands in resolving an appeal of
AQRVs in a specific, localized area. In review process provides the avenue to
a tribal or State redesignation, which is described those cases where the increment is not satisfy the factors applicable under
in the final bill as ‘‘air quality related values’’). violated and the permitting authority section 166(c) of the Act in conjunction

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with other aspects of our PSD only in Class I areas. We agree with the increments at existing levels for all area
regulations. commenter who pointed out that our classifications. However, many
The AQRV review process applies to regulations under section 166 must also commenters supported the existing
SO2 and PM as well, and thus is broader provide protection for Class II and Class increments, believing that they provide
than the scope of this rulemaking for III areas. While not as intensive a review adequate environmental protection and
NOX. We have been engaged in a as the AQRV analysis required in Class meet the requirements of section 166(c)
separate action to consider refinements I areas, the consideration of of the Act.
to the AQRV review process. In 1996, impairments to visibility, soils, and The majority of commenters that
the Agency, among other refinements, vegetation through the additional opposed retaining the existing
proposed the following definition of impacts analysis contributes to the increments recommended we adopt
AQRV: satisfaction of the factors applicable various alternatives to the existing NO2
* * * visibility or a scenic, cultural, under section 166(c) of the CAA in all increments, including new short-term
physical, biological, ecological, or areas, including Class II and Class III increments, increments measured by a
recreational resource that may be affected by areas. different form of NOX, and the use of
a change in air quality, as defined by the critical loads in lieu of the present
Federal Land Manager for Federal lands, or f. Installation of Best Available Control
Technology increment system. A few commenters
by the applicable State or Indian Governing felt that the existing levels of the
Body for nonfederal lands. The requirement that new sources and increments are not adequate to protect
61 FR 38250, 38322 (July 23, 1996). modified sources subject to PSD apply the environment but did not
However, we have not reached the BACT is an additional measure that recommend specific ways to change
closure on the evaluation of these helps to satisfy the factors in sections them. One commenter supported the
issues. We will continue to work with 166(c), 160(1), and 160(2) of the Act. existing increments but recommended
Federal land management agencies and This requirement, based on section that EPA enact additional mechanisms
consult with States and other 165(a)(4) of the CAA, is included in for protecting AQRVs in Class I areas.
stakeholder groups on potential reforms EPA’s PSD regulations and thus is also Two commenters supported revising
to the AQRV review process, including part of the regulatory framework for the and retaining the increment system on
evaluating the potential of a critical Agency’s pollutant-specific regulations an interim basis but then emphasized
loads approach, as discussed in section for NOX. 40 CFR 52.21(j); 40 CFR the need for additional studies to
VII of this preamble. 51.166(j). Our existing regulations ultimately improve the PSD program for
define ‘‘best available control
e. Additional Impacts Analysis NOX by switching to a critical loads
technology’’ as ‘‘an emission limitation
approach.
The additional impacts analysis set * * * based on the maximum degree of
After considering these comments, we
forth in our regulations also helps fulfill reduction for each pollutant subject to
have decided to retain the existing
the criteria and goals and purposes in regulation under the Act * * * which
increments for NOX without any of the
sections 166(c) and 160. The additional the Administrator, on a case-by-case
changes recommended by commenters.
impacts analysis involves a case-by-case basis, taking into account energy,
We have not been persuaded by
review of potential harm to visibility, environmental, and economic impacts
comments (including the information
soils, and vegetation that could occur and other costs, determines is
contained in studies provided by the
from the construction or modification of achievable for such source through
application of production processes or commenters) that there is sufficient
a source. basis for EPA to modify the ‘‘safe
Sections 51.166(o)(1) and 52.21(o)(1) available methods, systems, and
techniques * * *.’’ 40 CFR 52.21(b)(12); harbor’’ increments. Thus, we are
of the PSD regulations require that a
40 CFR 52.166(b)(12). This pollutant retaining annual NO2 increments for
permit provide the following analysis:
control technology requirement is each area classification with a level
an analysis of the impairment to visibility, based on the same percentages of the
soils and vegetation that would occur as a rigorous and in practice has required
significant reductions in the pollutant NAAQS Congress employed to establish
result of the source or modification, and the SO2 increments. As a result, the
general commercial, residential, industrial emissions from new and modified
and other growth associated with the source sources. The control of NOX emissions Class I increment for NO2 remains at 2.5
or modification. The owner or operator need through the application of BACT helps µg/m3 (annual average). The Class II
not provide an analysis of the impact on to protect air quality values, public increment for NO2 is 25 µg/m3 (annual
vegetation having no significant commercial health and welfare, and parks and other average) and the Class III increment for
or recreational value.
special areas. NO2 is 50 µg/m3 (annual average).
This requirement was based on In evaluating the level, averaging
section 165(e)(3)(B) of the CAA, which 2. Characteristics of Increments for NOX period, and form of increments for NOX,
provides that EPA establish regulations Because EDF v. EPA concerned we applied the following four factors
that require ‘‘an analysis of the ambient certain characteristics of the increments applicable under section 166(c): (1)
air quality, climate and meteorology, for NOX that we had established in Protect air quality values; (2) protect
terrain, soils and vegetation, and 1988, we sought comments in our public health and welfare from adverse
visibility at the site of the proposed proposal on the possible need to (1) effects from air pollution that occur
major emitting facility and in the area create additional increments for forms even when the air quality meets the
potentially affected by emissions from of NOX other than NO2 alone; (2) NAAQS; (3) protect air quality in parks
such facility * * *’’ 42 U.S.C. promulgate additional increments for an and special areas; and (4) ensure
7475(e)(3)(B). averaging period other than the existing economic growth consistent with
This portion of the additional impacts annual period, i.e., ‘‘short-term’’ preservation of clean air resources.23
analysis is especially helpful for increments; and (3) increase the
23 We have paraphrased these factors here and in
satisfying the requirements of section stringency of the existing NO2
other sections to facilitate the explanation of our
166(c) in Class II and Class III areas. increments by lowering the allowable reasoning. However, we recognize that the statutory
These areas are not subject to the levels. Several commenters opposed our language is broader than the shorthand we use here
additional AQRV review that applies proposal to retain the annual NO2 for convenience.

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We continue to believe that the other Act to require an analysis of the impacts function of limiting increases in
four factors identified in sections 166(c) on air quality values, health and emissions from the construction of new
and 160 of the Act do not relate to the welfare, and parks and special areas that major sources and the modification of
level, time period, and form of the could occur as a result of some marginal existing ones. Since our proposal, EPA
increments and thus are more increase in the concentration of air has taken a series of actions that require
appropriately considered when pollution in an area. States to achieve substantial reductions
determining the overall framework for As noted earlier, EPA does not in NOX emissions.
PSD regulations. Since we believe that interpret the PSD program to require it On March 10, 2005, EPA finalized the
those other factors are satisfied by the to set increments at a level where there CAIR (70 FR 25162, May 12, 2005),
increment and area classification will be no negative effects from a which requires substantial emissions
framework and other measures marginal increase in air pollution in the reductions of SO2 and NOX from sources
contained within our PSD regulations, amount of the increment. Congress did in 28 eastern States and the District of
we do not believe that it is necessary to not anticipate that an increment would Columbia to help downwind PM2.5 and
further consider those other four factors be a level of increase below which there 8-hour ozone nonattainment areas
when evaluating the characteristics of would be no negative effects. An achieve the NAAQS. Under this
increments of NOX. increment is the level that defines program, emissions of NOX are
‘‘significant’’ deterioration; it allows regulated as a precursor of either ozone
a. Fundamental Elements of Increments some deterioration of air quality. The or fine PM, or both. EPA is requiring the
In the proposal, we described three PSD program allows for some increase affected States to submit revised SIPs
elements which we believed were in effects when necessary to ensure that that include control measures to reduce
fundamental to the PSD increments economic growth may continue to occur emissions of NOX to assist in achieving
under the regulatory framework consistent with the preservation of clean the NAAQS.24 This program is based on
established by Congress. We considered air resources. State obligations to address interstate
these elements in determining whether (2) Increments need not remedy transport of pollution under section
to modify the existing increments. First, existing air pollution. Because an 110(a)(2)(D) of the Act. The required
an increment represents an allowable increment is an allowable level of NOX reductions must be implemented
marginal increase in ambient air increase, it does not function to reduce by the States in two phases, with the
pollution concentrations resulting from air pollution in existence before the first phase beginning in 2009 (covering
increases in the emissions of a baseline dates. As its name indicates, 2009–2014) and the second phase
particular pollutant after the ‘‘baseline’’ the PSD program is intended to protect beginning in 2015. The EPA estimates
date in the affected PSD area. Second, against significant deterioration of the that the two-phase CAIR program will
increments are not intended to remedy air quality in attainment and reduce NOX emissions by a total of 2
the effects of pre-existing sources of unclassifiable areas from the million tons from 2003 emissions levels.
pollution in attainment areas, but rather construction and operation of new and Reduction of NOX emissions from
prevent excessive growth in emissions modified sources of a particular size. existing sources is also required under
in these areas that already have ambient Thus, the PSD program limits increases EPA’s 1998 NOX SIP Call, which also
air pollution levels below the NAAQS. in emissions of a pollutant (as measured addresses State obligations to address
The third fundamental element of by the increase in ambient interstate transport of pollution. The
increments is that they are intended to concentrations of the pollutant) but does NOX SIP Call requires 22 eastern States
allow the same level of growth in each not seek to reduce existing emissions or and the District of Columbia to submit
area with a particular classification and ambient air pollutant concentrations to SIP revisions that prescribe NOX
thus should be uniform across the a particular level. emissions reductions by a specified
nation for each area classification. Most Several commenters seemed to deadline. The EPA has projected that
commenters did not question these suggest that the increment system approximately 900,000 tons of NOX per
fundamental elements of increments, should somehow be designed to ozone season will be reduced as a result
but some concerns were raised. improve the air quality to remedy of this particular program. While these
(1) Marginal level of increase. existing effects. However, we believe it reductions are intended primarily to
Increments represent the maximum is clear that the increments established improve air quality in the East with
allowable level of pollutant by Congress were only intended to respect to ozone, it is clear that the
concentration increase in an area where define the allowable levels of marginal required decreases in NOX emissions
the air quality is in attainment with the increase in air pollution above a will also decrease acid deposition,
NAAQS or has been designated baseline concentration that are nitrogen loadings to aquatic and
‘‘unclassifiable.’’ Thus, an increment is established in each area when the first terrestrial ecosystems, and ambient
essentially a marginal level of increase major source applies for a PSD permit concentrations of NO2.
in air pollution that is allowable for in that area. 42 U.S.C. 7479(4). As a In addition, EPA has taken further
particular areas. The statutory result, we do not believe we are action to reduce NOX emissions from
increments are expressed as ambient required to set increments at a level existing sources that contribute to
concentrations rather than mass values. intended to alleviate existing negative visibility problems, through
An increment differs from the NAAQS effects. implementation of the Regional Haze
in that an increment is not an absolute When we evaluated the characteristics program under sections 169A and 169B
air quality ceiling. The pollutant of increments necessary to prevent of part C.25 On July 6, 2005, EPA issued
increase allowed by an increment is significant deterioration of air quality,
added to the ‘‘baseline’’ air pollution we also recognized that EPA has 24 The required reductions in NO emissions will
X
levels existing in an affected PSD area adopted several other programs under also result in substantial visibility improvements
at the time a new or modified major the CAA that reduce the adverse effects and reductions in nitrogen deposition in many parts
source submits an application for a PSD from existing air pollution sources. of the eastern United States.
25 When the visibility provisions were enacted,
construction permit. Thus, in applying These programs are designed to reduce the House committee report specifically recognized
the factors applicable under section emissions from existing sources, while that the ‘‘visibility problem is caused primarily by
166(c), we interpreted section 166 of the the increments serve the complementary emission into the atmosphere of sulfur dioxide,

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revised regulations for regional haze, indicates that protection of air quality AQRVs or other important values.26 In
including guidelines for Best Available values under section 166(c) is provided this way, the PSD increments avoid
Retrofit Technology (BART) when an increment limits significant having a disproportionate impact on
determinations. The regulations require deterioration of air quality resulting growth that might disadvantage some
States to submit SIPs to address regional from increases in emissions after the communities, recognizing that the
haze visibility impairment in 156 baseline date, but does not require an increments in themselves would not
mandatory Class I Federal areas located increment that addresses adverse address existing negative impacts but
throughout the U.S. 70 FR 39104. As impacts on air quality values, such as cannot allow significant new adverse
required by the Act, the regulations visibility, that are caused by pre-existing impacts. Congress established the
require certain major stationary sources, emissions. foundation for uniform national
placed in service between August 7, In addition, in the 1990 Amendments, increments when it created increments
1962 and August 7, 1977, and which Congress enacted title IV to address the for SO2 and PM under section 165 of the
emit 250 tons or more per year of a problem of acid deposition. We believe Act.
visibility-impairing pollutant, including this supports an interpretation that the Thus, when we use the framework of
NOX, to undergo a BART analysis. PSD measures called for in section 166 an increment and area classification
The BART requirements are in need not address acid deposition system in the national PSD regulations
addition to other elements of the impacts that are attributed to emissions for a particular pollutant, we believe
Regional Haze program in regulations that existed prior to the baseline date. that we should establish a single
that EPA originally promulgated in When we use an increment approach, increment for each class of area such
1999. 64 FR 35714 (July 1, 1999) our view is that the PSD program is that this allowable level of increase
(‘‘Regional Haze rule’’). The main intended to focus on establishing a applies uniformly to all areas in the
components of this rule require States marginal level of increase in emissions nation with that particular
to: (1) Submit SIPs that provide for that will prevent significant air quality classification. This is necessary for EPA
‘‘reasonable progress’’ toward achieving deterioration and, in conjunction with to ensure equitable treatment by
‘‘natural visibility conditions’’ in Class AQRVs identified by the FLM, provide allowing similar levels of emissions
I areas; (2) provide for an improvement protection against increases in adverse growth for all regions of the country that
in visibility in the 20 percent most effects, such as acidification, that may a State elects to classify in a particular
impaired days; (3) ensure no result from emissions increases after the manner. The following statement from
degradation in visibility occurs on the baseline date. the legislative history of the PSD
20 percent clearest days; and (4) Thus, in areas where the PSD baseline program supports this interpretation of
determine the annual rate of visibility has not yet been established, the what Congress intended:
improvement that would lead to emissions reductions achieved by these
Some suggestions were made that the
‘‘natural visibility’’ conditions in 60 programs will result in lower PSD
pollution increments should be calculated as
years. baseline concentrations. Then the a function of existing levels of pollution in
At the time that Congress established increments will operate as an allowable each area. But the inequities inherent in such
the Regional Haze Program, a level of marginal increase that prevents an approach are readily evident * * *. The
Congressional committee recognized the significant deterioration of air committee’s approach—increments
quality beyond the baseline calculated as a percentage of the national
that the PSD program was not
concentration in these attainment areas. standard—eliminates those inequities. All
necessarily created to alleviate adverse areas of the same classification would be
effects resulting from contributions by This approach is consistent with
allowed the same absolute increase in
existing sources. When it was writing Congressional intent that the baseline
pollution, regardless of existing levels of
section 169A of the Act at the same time concentration, representing the air pollution.
that it established the PSD program, the quality in an attainment area subject to
PSD, be established on the date of the H. Rep. 95–294, at 153, 4 LH at 2620.
House recorded the following See also S. Rep. 95–127, at 30, 3 LH at
observations in a committee report: first application for a permit by a PSD
source affecting that area. 42 U.S.C. 1404 (‘‘These increments are the same
[T]he committee recognizes that one 7479(4). See also Alabama Power v. for all nondeterioration areas, thus
mechanism which has been suggested for Costle, 606 F.2d 1068, 1088–89 (D.C. providing equity for all areas’’). This
protecting these areas, the mandatory Class I indicates that Congress did not intend to
increments of new section 160 (‘Prevention Cir. 1979).
(3) Increments should be uniform for impose more stringent restrictions
of Significant Deterioration’) do not protect
adequately visibility in Class I areas. First, each area classification. Several under the PSD program on particular
inadequately controlled, existing gross commenters disagreed with our view areas of the country based on their
emitters such as the Four Corners plant that the increments should be uniform current levels of air pollution, unless, of
would not be affected by the significant throughout the U.S. in each area with course, the current levels of pollution
deterioration provisions of the bill. Their the same classification. These concentrations are so near the NAAQS
emissions are part of the baseline, and would commenters argued that uniform that the full amount of incremental
not be required to be reduced by new section national standards are not required by change cannot be allowed.
160 of the act. Instead, Congress provided States
the Act. We continue to believe that the
H. Rep. 95–294, at 205, 4 LH at 2672 PSD program is intended to allow the with the authority to determine
(emphasis added). This statement air quality in each area of the country situations when it might be desirable to
attaining the NAAQS, and with the allow a greater or lesser level of air
oxides of nitrogen, and particulate matter * * *’’ same area classification, to ‘‘deteriorate’’ quality protection in a particular area.
H.R. Rep. 95–294, at 204, reprinted in 4 LH at 2671. Except for certain Federal lands
NOX may result in visibility impairment either
by the same amount for each subject
locally (a coherent plume effect) or by contributing pollutant, regardless of the existing air designated as mandatory Class I areas
to regional haze, which has been recognized as quality when the increment is initially
primarily a fine particle phenomenon. 1995 Staff triggered in a particular area, as long as 26 Congress also recognized that some areas may

Paper for NOX at 89. For the reasons discussed have air pollution levels already near the levels
earlier, we do not believe we need to consider PM
such growth allowed within the allowed by the applicable NAAQS, whereby the
effects in this court-ordered reevaluation of the NO2 constraints of the increment does not NAAQS would govern and the full amount of
increments. cause adverse impacts on site-specific increment might not be usable.

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that could not be reclassified, Congress responsibility to protect sensitive obligations to consider the protection
classified all other areas as Class II areas ecological resources located throughout provided by the additional impacts
and gave the States the power to the U.S. The use of uniform national analysis and the review of AQRVs in
reclassify these areas to Class I or Class increments—only one component of the Class I areas when establishing
III to provide for greater protection of air PSD regulations for NOX—does not increments.
quality or allow more growth, mean that the PSD program is not We also believe that the factors
depending on the values of the State responsive to different levels of adverse applicable under section 166(c) of the
and the community in that area. The effects in particularly sensitive areas, Act are met when we establish a
ability to reclassify most areas allows such as Class I areas. uniform national increment for NO2 for
the States to make their own choices We weighed Congress’ goal to treat all each class of area and augment the
about which areas require more areas with a particular classification the increment system with an additional
protection of air quality and which areas same against the unique variability in case-by-case procedural review to
should be allowed more growth ecosystem effects that may result from identify and protect against variable
consistent with the protection of air NOX emissions (described elsewhere in adverse effects that could occur in
quality. See H.R. Rep. 95–294, at 153– this preamble). We ultimately especially sensitive areas before the
154, 4 LH at 2620–2621. concluded that multiple goals could be amount of pollutant increase defined by
The same equitable considerations are achieved by retaining uniform national the increment is reached.
applicable when we establish PSD increments for NO2 for each area We, nevertheless, understand the
regulations containing increments and classification and augmenting them commenters’ concern over our position
area classifications under section 166 of with an additional case-by-case that the increments should be uniform,
the Act. Since Congress did not intend procedural review which can identify when they conclude that no amount of
for the increments it established to and protect against variable effects that evidence concerning ecological effects
impose a disproportionate impact on could occur in especially sensitive will be useful for revising the
particular areas, we do not believe it areas, even when the increment is not increments, because of the highly
intended for EPA to do so under section fully consumed. Indeed, this is what variable sensitivity of ecosystems
166 of the Act. Thus, to treat all areas Congress did under its original PSD throughout the U.S. While we have
of the country in an equitable manner, program requirements for SO2 and PM. indicated that it would be very difficult
it is necessary for us to establish This approach is embodied in the to use such variable data to modify the
uniform national increments for NO2 framework for the PSD regulations for increments as uniform increments, we
that define a maximum allowable NOX that we adopted in 1988. As believe it may be possible to develop
increase for each of the three area described in section VI.A.1. above, each uniform increments that provide for a
classifications. Then, States and tribes permit application is subject to an reasonable level of protection in most
in exercising their unique authority to ‘‘additional impacts’’ analysis that areas if sufficient national critical loads
manage their own air quality, in allows the permitting authority to data are available to determine the range
accordance with their own unique and consider the sensitivity of a particular of adverse effects that must be
individual goals and objectives, may area. In Class I areas, the AQRV review considered. Clearly, such extensive data
decide how to best manage their air procedures provide further protection, are not available at this time.
quality resources by reassigning area notwithstanding the allowable amount Some commenters argued that we
classifications within any particular of pollutant concentration increase should establish local standards under
area (other than mandatory Federal allowed by the Class I increment, for the section 166 to address the known
Class I areas). air quality values and the national parks variable effects from NOX. For the most
Some of the commenters opposing and wilderness areas included in Class part, however, the comments related to
uniform national increments disagreed I areas. These two sets of special the use of a critical loads approach
with our view that the increments procedures are an important part of the rather than a set increment or variable
should be uniform because they felt we overall regulations for preventing increments for NOX. In either case,
improperly focused on ‘‘providing equal significant air quality deterioration, however, because of the equitable
opportunity for new emission sources while retaining the uniform national considerations and State prerogatives to
without fulfilling [our] statutory duty to increments. This approach allows EPA classify areas described above, we do
protect ecological resources across the to achieve the equity of setting a not believe that Congress intended for
country.’’ What is required, according to uniform increment level for all areas EPA to create a federally imposed
these commenters, is ‘‘the protection of with a particular classification, while system of regional or locally based
air quality related values and fulfillment directing that permitting authorities increments or to authorize EPA to do so
of the Act’s goals and purposes—which conduct a more intensive, site-specific to address any variability in potential
unquestionably include protection of review to identify effects that might effects. Likewise, we do not believe it is
individual parks, wilderness areas, and occur in a more sensitive area but not permissible or appropriate for us to
other areas of important value.’’ necessarily in all areas of the country establish uniform increments at levels
Moreover, these commenters argued that with that classification. so stringent that they prevent any
because of our insistence on the use of As noted earlier, we read section 166 adverse impact on the most sensitive
uniform increments no amount of of the Act to direct EPA to establish a receptors in any part of the U.S.
information would ever provide a system of regulations containing Although such an approach might
‘‘nationally applicable’’ basis for EPA to provisions that collectively satisfy the achieve uniformity across all areas, it
revise the NO2 increments, because, as content requirements in sections 166(c) would unduly restrict growth in those
EPA recognizes, ‘‘the sensitivity of and 166(d) of the Act. Thus, we think areas of the country where adverse
individual ecosystems varies greatly’’ Congress contemplated that we would effects may not occur at the levels where
across locations. consider all the provisions in our the adverse effects occur in more
We do not believe that our position regulations as a group when establishing sensitive areas.
supporting uniform national increments particular aspects of those regulations. Furthermore, our regulations also
under the national PSD program As a result, we believe it is appropriate provide protection against localized
necessarily conflicts with our and consistent with our statutory impacts by requiring each new or

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modified source subject to PSD to apply to occur. As described in section V, in have already acknowledged that
BACT. The BACT requirement provides many instances, there was uncertainty increments are not intended to prevent
for a case-by-case State determination, about the specific relationship between all negative impacts in all areas, and
taking into account energy, the pollutant, NO2, and its precise role that the PSD regulations for NOX
environmental, and economic impacts in causing a particular negative contain other mechanisms for protecting
and other costs to determine the best response to an environmental receptor. sensitive resources where the increment
method for minimizing a source’s The Agency encountered the same alone does not do so.
emissions. See section 169(3) of the Act. problem in the past during the last We cannot deny the commenters’
b. Analytical approaches for periodic review of the NO2 NAAQS. claims that some areas of the U.S.
establishing increments. Mindful of the Because of our inability to derive from (primarily in the West) have continued
above considerations about the the available evidence a way to quantify to experience increased rates of N
characteristics of the increments, we how much of a contribution deposition, as studies have shown.
reviewed the scientific and technical atmospheric deposition of nitrogen is However, such information does not
evidence available for the 1996 review making to negative environmental change the fact that we are currently
of the NO2 NAAQS in order to effects and what levels of reduction are unable to find sufficient evidence upon
determine whether, and to what extent, necessary to remedy the situation, we which to establish a dose-response
the ‘‘safe harbor’’ increments should be were precluded from recommending relationship associated with NOX so that
modified to satisfy sections 166(c) and secondary (welfare-based) NAAQS for we can scientifically support more
160 of the Act. As summarized in NOX. See 1995 Staff Paper for NOX, vol. stringent numerical levels for the NO2
section V of this preamble, EPA’s 1, pp. 91–95. For similar reasons, we increments should we otherwise
conclusions about whether nitrogen at could not quantitatively identify the conclude that a modification is
levels at or below the NAAQS caused level of increase in NOX emissions at appropriate. Instead, as mentioned
negative environmental impacts were which significant negative above, most published studies have still
mixed, but included findings that environmental effects occur. Thus, we largely focused on documenting the
negative effects associated with nitrogen do not have a quantitative way to adverse effects and making links to N
deposition (1) did not likely exist (e.g., determine whether or how to modify the deposition as a primary cause. These
eutrophication of freshwater systems); existing NO2 increments in order to studies typically fall short of defining a
(2) were insignificant (e.g., impacts on prevent significant deterioration. quantitative relationship between
terrestrial vegetation); or (3) not clearly Recognizing the inconclusive nature emissions of NOX, N deposition rates,
understood (e.g., chronic and episodic of the scientific and technical evidence and the negative responses being
acidification). There was some evidence contained in the 1993 Criteria observed.
that at levels below the NAAQS, Document, we looked beyond that There are many recent studies that
nitrogen was at least in part contributing information to later studies that might examine the various sources of the
to known negative environmental provide the information we needed to nitrogen input (industry, transportation,
effects. Ultimately, we tried two determine the quantitative dose- agriculture), N deposition budget,
different analytical approaches—a response relationships associated with geographical location of different
quantitative and a qualitative NOX in the atmosphere. We found that nitrogen loadings, and trends in
evaluation—to reach our decision about later studies enable us to better deposition rates, as well as the specific
whether we had a basis for modifying understand N deposition trends, the effects of nitrogen deposition on specific
the safe harbor NO2 increments so that mechanisms by which NOX contributes ecosystems. These studies in general
the increments themselves could to N deposition, and the ways in which emphasize the importance of reducing
provide greater protection against such sensitive ecosystem resources respond current emissions of NOX as part of a
adverse effects. These approaches and to excess nitrogen. However, even in the strategy for reducing observed impacts
the relevant findings are described later studies, there continues to be and promoting ecosystem recovery.
below. significant uncertainty about the However, such studies are not yet able
(1) Quantitative Evaluation. An quantitative dose-response relationships to provide the information needed to
increment is not like the NAAQS in that that we need to evaluate the identify the dose-response relationships
it does not set a uniform pollutant effectiveness of the existing NO2 associated with NOX.
concentration ‘‘ceiling’’ against which increments. There are several key difficulties
potential negative ecosystem responses Some commenters saw the later associated with the ability to establish a
could be evaluated. Instead, an studies, which provide evidence of quantitative relationship between NOX
increment allows a uniform allowable increased levels of N deposition in some and the negative environmental
pollutant concentration increase above a areas of the U.S., and scientific findings responses to which nitrogen compounds
baseline concentration in an area. more closely linking nitrogen deposition are known to contribute. Below, we
Therefore, we evaluated how protective to observed negative ecosystem summarize some of the key areas of
the existing NO2 increments are by responses as ‘‘proof’’ that the existing difficulty for which a better
trying to compare the maximum NO2 increments are ineffective. We understanding is needed.
pollutant concentration increases disagree with the commenters’ claims (1) Relationship between NOX
allowed by the NO2 increments against that evidence of localized impacts in emissions and N deposition. It is
the pollutant concentrations at which specific sensitive areas, as reflected in generally recognized that reducing NOX
various environmental responses occur. later studies, necessarily proves that the emissions will result in reductions in N
See 70 FR 8900. existing NO2 increments across the U.S. deposition as well. However, the
Unfortunately, this quantitative are ineffective. It is not clear at this time quantitative relationship between the
approach was hindered because the whether a lower, more stringent two is complex and still uncertain.
available evidence we reviewed increment level that we might select for Some recent studies attempt to address
typically was inconclusive regarding the the national uniform increments would the various parameters that together
pollutant concentrations at which prevent the adverse effects that are could help to establish this relationship.
negative environmental responses currently being observed in a particular For example, some recent study results
associated with NOX could be expected park or sensitive area of the U.S. We provide evidence of a quantitative

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relationship between NOX emissions nitrate concentrations (Fenn, 2003a). another because of the amount, form,
and precipitation (wet deposition) NO3 The same study indicated that NOX and timing of nitrogen deposition, forest
in the eastern U.S. However, the results emissions in the western U.S. are type and status, soil types and status,
of efforts to establish a quantitative projected to decrease 28 percent by the character of the receiving
relationship between NOX emissions 2018, while ammonia emissions are waterbodies, the history of land
and total (wet and dry) nitrogen projected to increase by 16 percent. management and disturbances across
deposition have thus far been Another study reports the occurrence of the watersheds and regions, and
inconclusive (Butler, 2000, 2003). These significant increases of ammonia and exposure to other pollutants.’’ Id.
studies point to the reactive nature of dissolved inorganic nitrogen in much of A 2005 paper describes the progress
components of NOX as being part of the the U.S., while reporting regionally being made by FLMs in identifying the
problem. Besides producing nitric acid significant increases and decreases in resources that are at risk or sensitive to
or nitrate aerosols, both components of nitrate. (Lehmann, 2005.) air pollution in the parks and
N deposition, NOX can also result in the Another challenge is that in many wilderness areas under their
formation of peroxyacetyl nitrates areas, particularly in the West, the jurisdiction. (Porter, 2005.) Reportedly,
(PAN), ozone and other oxidant species. accuracy of the inventory for ammonia the FLMs have also completed
Also, it has been observed that high is very uncertain, and historic qualitative descriptions of the various
year-to-year variability in N deposition deposition monitoring (collected mainly resources. It is noted that such
does not match the relatively small total in the form of wet deposition) typically information is ‘‘specific to each
NOX emissions changes in the eastern has not included the ammonia wilderness area or park, because of the
U.S. component. (Fenn, 2003a.) This leads to tremendous diversity in ecosystem
(2) Nitrogen deposition budget. problems in estimating total N characteristics, sensitivities, and
Another complication is that total N deposition. stressors on federal lands.’’
deposition typically includes the We believe that a better Thus, for example, ecosystems in the
combined contributions of emissions understanding of ammonia emissions Northeast have been more strongly
from NOX (which form nitrates and and the ammonia levels in the affected by acid deposition than have
nitric acid in the atmosphere) and atmosphere, and their contribution to ecosystems in the western U.S. On the
ammonia (ammonium). Emissions of total N deposition, is also needed in other hand, the problem of greater
ammonia can be converted to any other order to obtain a more complete picture concern in the West results from
nitrogen species and can contribute to of the atmospheric partitioning of N nitrogen enrichment, which includes
all nitrogen-related inputs. (Ammonia emissions and total mass of N nitrogen saturation, eutrophication and
Workshop, 2003.) Ammonia and deposition. This will help us better alterations in biological communities. In
ammonium found in the atmosphere, understand the dose-response addition, some areas in the West are
and in the soil, are generally the result relationships between the different noted for their sensitivity to relatively
of agricultural activities that are neither sources of nitrogen and the ecosystems low doses of N deposition, particularly
regulated directly by the PSD program affected by them. at higher elevations.
nor counted towards the consumption Finally, the N deposition budget and In addition to the difficulties
of the NO2 increment (and would not be associated deposition rates are described above, there are other
counted against the increment for NOX determined by a complex interaction of considerations that add to the
measured as any other form of NOX). In multiple processes. Modeling efforts to complexity of determining dose-
order to better understand the simulate the formation and deposition response relationships for NOX. These
relationship between the different of nitrogen species in the West involve include: (1) In addition to multiple
sources of nitrogen and the ecosystems a number of data inputs including nitrogen compounds that must be
affected, it is important to also recognize emissions of nitrogen from various identified, the observed ecosystem
contributions from ammonia and sources of NOX and ammonia, responses to pollutant deposition can
ammonium. meteorological parameters, chemical also be the result of combined pollutant
One challenge with understanding the transformation and partitioning of impacts, such as the acidification of
contributions from different nitrogen nitrogen species, aerosol dynamics, and lakes from both sulfur and nitrogen
species is that the mix of pollutant rates of wet and dry deposition. (Fenn, deposition; (2) short-term increases of
inputs that affect sensitive ecosystems is 2003a.) nitrates in streams have occurred in the
dynamic. A 2005 report using data from (3) Ecosystem variety and sensitivity. absence of concurrent increases of N
the National Atmospheric Deposition Even if a particular threshold value deposition but have been positively
Program National Trends Network has could be identified to quantifiably relate correlated with mean annual air
shown that from 1985 to 2002 marked ambient NOX concentrations to an temperatures (Murdoch, 1998), and high
changes in concentrations of sulfate, adverse effect in a given ecosystem and levels of nitrogen have occurred in the
nitrate and ammonium in wet location, the same threshold is not absence of anthropogenic sources; and
deposition have occurred. The reported likely to apply to similar ecosystems (3) it may take years before certain
trends indicate ‘‘changes in the mix of throughout the U.S. In our most recent ecosystems come into balance with the
gases and particles scavenged by review of the NO2 NAAQS, we observed cumulative amounts of nitrogen inputs
precipitation, possibly reflecting that ‘‘a great degree of diversity exists (making it difficult to determine the
changes in emissions, atmospheric among ecosystem types, as well as in level at which recovery begins).
chemical transformations, and weather the mechanism by which these systems The difficulty of establishing the
patterns.’’ (Lehmann, 2005.) assimilate nitrogen inputs.’’ 60 FR dose-response relationships associated
In some areas of the country, for 52831, October 11, 1995 at 52881. As a with NOX is further illustrated by EPA’s
example, it is reported that emissions of result, we concluded, ‘‘the relationship experience in evaluating the feasibility
ammonia are increasing at a greater rate between nitrogen deposition rates and of setting an acid deposition standard.
than emissions of NOX. At the same their potential environmental impact is Under section 404 of the 1990
time, atmospheric ammonium to a large degree site- or region-specific Amendments, Pub. L. 101–549,
concentrations in wet deposition are and may vary considerably over broader Congress directed EPA to conduct a
increasing at a greater rate than are geographical areas or from one system to study of the feasibility and effectiveness

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of an acid deposition standard(s), to rates, for the above reasons we believe Bearing on this policy decision for
report to Congress on the role that a that it is not technically or practicably increments are various considerations,
deposition standard(s) might play in feasible to identify a quantitative basis based on the available information and
supplementing the acidic deposition for concluding that the existing NO2 the factors applicable under section
program adopted in title IV, and to increments are inadequate to provide 166(c). The factors establishing
determine what measures would be protection against the types of adverse particular environmental objectives
needed to integrate an acid deposition effects on ecosystems that may occur in (protecting air quality values, health and
standard with that program. some areas notwithstanding compliance welfare, and parks) might suggest that,
The EPA completed this study, ‘‘Acid with the NAAQS. In particular, it is not in some areas, we permit no or minimal
Deposition Feasibility Study, Report to possible to determine a different level of increases in NOX emissions or establish
Congress’’ (1995), which concluded that increment protection that would define an increment for another form of NOX
current scientific uncertainties a significant deterioration level for because there are data indicating that an
associated with determining the level of ecosystem effects associated with effect may be attributable to NOX
an acid deposition standard(s) are emissions of NOX. Thus, currently emissions. However, as explained
significant, and did not recommend available information does not provide earlier, we do not believe that Congress
setting an acid deposition standard. See a nationally applicable, quantitative intended for the PSD program to
State of New York v. Browner, 50 F. basis for revising the existing NO2 eliminate all negative effects. Thus,
Supp. 2d 141, 149 (N.D.N.Y. 1999) increments. rather than just seeking to eliminate all
(rejecting States’ claim that section 404 (2) Qualitative Evaluation. As negative effects, we must attempt to
required that the report include a explained above, the available scientific identify a level of increase at which any
deposition standard that would be and technical data do not yet enable us additional effects beyond existing (or
sufficient to protect sensitive aquatic to adequately relate ambient baseline) levels would be ‘‘significant’’
and terrestrial resources, and affirming concentrations of NOX to ecosystem and protect against those ‘‘adverse’’
EPA interpretation that duty was responses. Without such key effects. Furthermore, we need to ensure
limited to ‘‘consideration of a information, it is difficult to that our increments provide room for
description’’ of such standards). quantitatively evaluate the effectiveness some economic growth. Congress
While EPA has recognized that intended for EPA to weigh these
of the ‘‘safe harbor’’ increments for
programs, such as the CAIR (70 FR considerations carefully and establish
protecting air quality values, health and
25162, May 12, 2005), that are intended regulations that balance economic
welfare, and parks while ensuring
to achieve NOX emissions reductions growth and environmental protection.
economic growth consistent with the
pursuant to other statutory provisions Since we are unable to establish a
preservation of clean air resources.
will help mitigate acid deposition direct, widely applicable, quantitative
problems, none of those programs Alternatively, we must make a
relationship between particular levels of
purport to set an acid deposition qualitative judgment as to whether the
NOX and specific negative effects, we
standard. existing NO2 increments or some
give particular weight to the policy
We note that one particular study, alternative increments meet the
judgment that Congress made when it
cited by two commenters, did include a applicable factors.
set the statutory increments as a
‘‘conservative recommendation’’ for a In this situation, we believe that percentage of the NAAQS and created
threshold level (i.e., critical load) for determining the increment levels that increments for the same pollutant form
nitrogen deposition based on ‘‘wetfall satisfy the factors applicable under and time period that was reflected in the
for Class I areas in the central Rocky section 166(c) is ultimately a policy NAAQS. In section 166 of the Act,
Mountains.’’ (Williams, 2000.) In choice that the Administrator must Congress directed that EPA study the
addition, it is reported that other efforts make, similar to the policy choice the establishment of PSD regulations for
are underway by scientists using Administrator must make in setting a other pollutants for which Congress did
empirical studies and modeling to primary NAAQS ‘‘with an adequate not wish to set increments at the time.
estimate critical loads for other areas of margin of safety.’’ See Lead Industries Congress’ own reluctance to set
the U.S. Also, the NPS has spent Ass’n v. EPA, 647 F.2d 1130, 1147 (D.C. increments to prevent significant
considerable time evaluating the effects Cir. 1980) (where information is deterioration of air quality due to
of both sulfur and nitrogen deposition insufficient to permit fully informed emissions of NOX, and the provisions
in several national parks, and has factual determinations, the ensuring time for Congressional review
estimated critical loadings associated Administrator’s decisions rest largely on and action, suggest that Congress
with some of their important natural policy judgments). Using a similar intended for EPA to avoid speculative
resources. (Porter, 2005.) approach is warranted because both judgments about the science where data
We have considered whether the section 109 and section 160(1) direct the are lacking. Thus, in the absence of
concept of a ‘‘critical load’’ could be Administrator to use his or her specific data showing that a marginal
used to identify an alternative judgment in making choices regarding increase of a particular level below the
increment level. At this time, we do not an adequate margin of safety or ‘‘safe harbor’’ would better protect
believe that the current status of such protecting against effects that may still health, welfare, parks, and air quality
research can be used as a basis for us to occur notwithstanding compliance with values, while simultaneously
establish national increments, or other the NAAQS—both areas of inquiry maximizing opportunities for economic
measures of NOX, that could be applied characterized by great uncertainty. growth, we give weight in our
throughout the U.S. We do, however, Thus, in the process for setting NAAQS, qualitative analysis of the factors
provide further discussion in section VII the Administrator looks to factors such applicable under section 166(c) to the
concerning the critical load concept and as the uncertainty of the science, the method that Congress used to establish
its potential for being an effective air seriousness of the health effects, and the the statutory increments.
quality management tool. magnitude of the environmental In making this qualitative judgment,
As discussed in the welfare effects problem (isolated or commonplace). we also consider the overall regulatory
section (V.D.2), although we are seeing E.g., 62 FR 38652 (July 18, 1997) (PM2.5 framework that we have established in
effects at current nitrogen deposition NAAQS). the PSD regulations for NOX. This

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framework includes a case-by-case that address increases in ambient NO2 NO and NO2. As a result, we examined
analysis of each permit application to concentrations. Since 1988, EPA has not the feasibility of establishing numerical
identify additional impacts (e.g., soils identified a basis upon which to increments that would include
and vegetation), a special review by the establish a NAAQS for any form of NOX measurement of nitrates.
FLM and State permitting authority of other than NO2. Thus, it remains the In the February 2005 proposal, we
potential adverse effects on air quality case today that the only NAAQS noted several reasons why we believed
values in parks and special areas, and a established for NOX are the current NO2 that it was not necessary to adopt
requirement that all new and modified NAAQS which have not changed since individual increments for nitrate. First,
sources install BACT. In addition, the 1971. We believe that increments based the existing NO2 increments, which
area classification system ensures that on the same pollutant for which we limit the allowable increase of NO2 in a
there will be economic growth in have a NAAQS are the ‘‘safe harbor’’ for given area, serve also to limit the
particular areas that are consistent with the purposes of this rulemaking. amount of nitrate in the atmosphere.28
the values of each State and individual Establishing increments for this form That is, by limiting the allowable
communities within States. of NOX is ‘‘at least as effective’’ as the increase in ambient concentrations of
c. Three characteristics of increments statutory increments in section 163 of NO2 in the immediate area surrounding
for NOX. the Act. Congress established statutory a proposed new or modified PSD
(1) Form of increment. A significant increments in section 163 for only those source, some limit can effectively be
issue in the EDF v. EPA case was EPA’s forms of PM and sulfur oxides for which placed on downwind formations of
action in 1988 to establish an increment we had promulgated a NAAQS.27 As nitrate compounds as well.
for only one form of NOX, i.e., NO2. We discussed above, the need for an We also noted that ambient nitrate
promulgated increments for NO2 in increment necessarily derives from the often exists in the atmosphere in
1988 because NO2 was the only form of establishment of a NAAQS, which is the particulate form, e.g., ammonium nitrate
NOX for which we had established a basic measure of air quality under the and nitrate salts formed from nitric acid.
NAAQS at that time. However, the court CAA. Thus, an increment based on this These forms are known to contribute to
held in EDF v. EPA that section 166(c) basic measure of air quality is ‘‘at least regional haze. Based on this, we
of the Act ‘‘commands the as effective’’ as the statutory increments indicated our belief that nitrates could
Administrator to inquire into a in section 163 of the Act. The court in be more effectively regulated under our
pollutant’s relation to the goals and EDF v. EPA rejected the argument that national PM program.
purposes of the statute, and we find increments based on the same form of Notwithstanding these reasons for not
nothing in the language or legislative NOX as the NAAQS were not ‘‘as needing a nitrate-based increment, we
history suggesting that this duty could effective as’’ the increments in section further explained that the available
be satisfied simply by referencing the 163. 898 F.2d at 190. scientific and technical evidence
ambient standards.’’ 898 F.2d at 190. As We acknowledge that the available available for our consideration did not
a result, in this rulemaking action on scientific and technical evidence exist (1) to adequately establish a
remand, we weighed the relevant indicates that the range of adverse quantifiable relationship between NOX
evidence to determine whether the data effects being observed in the various emissions (NO/NO2) and nitrogen
supported the potential use of other ecosystems studied are the result of deposition products, including nitrates,
forms of NOX to serve as measures for contributions from several forms of NOX or (2) to set numerical levels for such
the increments and, if so, what other than NO2. We noted earlier in this increments.
numerical levels would be appropriate. preamble that seven species of oxides of Some of the commenters who
We requested comment on whether nitrogen are known to occur in the supported the need for increments
we should adopt increments for other atmosphere. However, anthropogenic based on a broader measure of NOX
forms of NOX and received several emissions of NOX predominantly referenced more recent studies which
comments recommending that EPA do originate as NO and quickly oxidize into point to the worsening trends of
so. Some of these commenters claimed NO2. As described in section V of the nitrogen deposition, and observations of
that the statute requires EPA to examine preamble, under the discussion of adverse effects, in various areas of the
and regulate nitrogen compounds other environmental effects, many of the country as evidence that the existing
than NO2, to protect the air quality, negative effects indirectly related to NO2 increments are ineffective. On this
especially in Class I areas. Therefore, emissions of NO and NO2 are caused (or basis, the commenters claimed that the
these commenters called upon EPA to contributed to) largely by nitrogen existing NO2 increments did not satisfy
develop increments that accounted for compounds (e.g., nitrates, nitric acid) sections 166(c) and 160 of the Act.
other forms of NOX, such as nitric acid, which result from chemical While we do not discount the findings
nitrate, ammonium nitrate, and for transformations of NO2 in the contained in these studies, we do not
ozone. Some commenters recognized atmosphere. believe that these more recent studies
the complexity of the total nitrogen In particular, nitrates (NO3¥), provide the necessary information either
deposition problem and recommended primarily in the form of nitric acid to establish broader nitrogen-based
that EPA revise and retain the existing (HNO3) and nitrate aerosols such as increments or to indicate that the NO2
increments on an interim basis, while ammonium nitrate (NH4NO3), are increments are ineffective.
undertaking the necessary steps to study primary constituents of nitrogen As was the case with the more recent
the full scope of the problems associated deposition and can play a significant studies that we reviewed, the studies
with NOX and revising the PSD role in producing welfare effects that are cited by commenters are based on
regulations for NOX accordingly. For the indirectly attributable to emissions of observations of adverse ecological
reasons discussed below, we have effects in specific localized areas where
decided not to add any additional 27 Since that time, we have refined the original
sensitive ecosystem receptors are known
increments based on other forms of NOX NAAQS for PM (then measured as TSP) to focus on
to exist. Such studies clearly have
to the existing increments for NO2. coarse (PM10) and fine (PM2.5) particulate matter.
We subsequently established increments for PM10
Under the ‘‘contingent safe harbor’’ in accordance with section 166(f) of the Act. 58 FR 28 Another source of nitrates, not associated with
approach discussed above, we began our 31622 (June 3, 1993). We are considering emissions of NOX, is the nitrification of ammonium
analysis with ‘‘safe harbor’’ increments establishing increments for PM2.5. by bacteria in stream beds.

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enhanced our ability to understand the provides a reasonable benchmark for NAAQS, we consider an increment that
mechanics of the pollutant deposition identifying the pollutant to be used in employs this averaging time to be a
process, identify deposition trends, and an increment. ‘‘safe harbor’’ that is ‘‘at least as
document the adverse effects to which Section 160(1) of the Act is expressed effective’’ as the statutory increments in
nitrogen deposition contributes. Yet the by using the NAAQS as a benchmark section 163 of the Act. The increments
same studies in most cases continue to and also uses standards that mirror the listed in section 163 of the Act are based
fall short of enabling us to quantify the standards applicable to the NAAQS- on the same averaging times that were
levels of deposition responsible for the setting process— ‘‘protect public health contained in the NAAQS at the time
recorded changes. In fact, many of these and welfare.’’ The court in EDF v. EPA Congress adopted this provision. The
studies conclude by calling for rejected use of the NAAQS as the ‘‘sole NAAQS are the basic measure of air
additional research to collect the data basis’’ for deriving the increments for quality under the CAA. Therefore, an
necessary to quantify the dose-response NOX but did not preclude EPA from increment that uses this standard as a
relationships associated with nitrogen. adopting only increments based on the benchmark is ‘‘at least as effective’’ as
Even considering more recent same pollutant as the NAAQS when the statutory increments in section 163
evidence, we continue to believe that it EPA has determined that additional of the Act. The court in EDF v. EPA
is not feasible to develop broader-based increments are not needed after rejected the argument that an increment
increments for NOX at this time, and the considering the factors applicable under based on the same averaging time as the
nitrate deposition effects in local areas section 166(c) of the Act. See 898 F.2d NAAQS was not ‘‘as effective as’’ the
where sensitive ecosystems exist will be at 190. As we have explained earlier, increments in section 163. 898 F.2d at
more effectively addressed via the several of the ‘‘other forms of NOX’’ that 190.
broader set of PSD regulations for NOX commenters recommend be included in We reviewed the scientific and
and by various PM control programs the increments for NOX are more technical evidence available in the 1993
that will apply in those local areas. appropriately addressed under programs Criteria Document for NOX in light of
Finally, with regard to commenters’ for other criteria pollutants, as well as the section 166(c) criteria to determine
recommendations that we establish some of the multi-pollutant emissions whether it justified the need for a short-
increments to address the effects of reductions programs that have been term increment, even though no short-
ozone, we indicated earlier that we do established across the U.S. term NO2 NAAQS existed from which to
not believe Congress intended for us to (2) Increment averaging periods. The derive a short-term safe harbor
consider the effects of other regulated existing NO2 increments, promulgated increment. As we indicated in the
pollutants, such as ozone, when in 1988, are based on an annual February 2005 proposal, the available
establishing increments for NOX. We averaging period, consistent with the evidence did not identify any adverse
continue to believe that the increments NO2 NAAQS. In the 1988 rule, EPA did health effects from short-term exposure
for NOX need only consider effects not set short-term NO2 increments to ambient NO2 concentrations in areas
resulting from ambient NO2 and other because a short-term NAAQS for NO2 with air quality meeting the NO2
forms of NOX (resulting from the that would define short-term air quality NAAQS. Thus, we proposed to find that
transformation of NO2 in the for NO2 did not exist. However, the a short-term increment was not needed
atmosphere), rather than secondary court directed us to evaluate whether, to provide any additional health
pollutants for which Congress expected considering the factors applicable under protection beyond assuring that the
separate PSD regulations, including section 166(c), we should promulgate existing increments would keep ambient
increments. See relevant comments additional increments for short-term NO2 concentrations at levels below the
concerning increments for secondary averaging times. 898 F.2d at 190. Thus, NO2 NAAQS.
pollutants associated with NOX and our we have evaluated and requested Some commenters disagreed with us
responses to those comments in section comment on the need to promulgate and expressed the need for a 1-hour NO2
V.D. of this preamble. additional NO2 increments based on a increment for health-related purposes.
A key problem that we have already short-term averaging time to satisfy Some of these commenters urged us to
discussed, however, is that studies of section 166(c) of the Act. Several of the consider recent health data and the fact
nitrogen deposition indicate that the commenters that opposed EPA’s that California has adopted a short-term
nitrogen input from total atmospheric proposed decision to retain the existing health standard for NO2 exposure.
nitrogen deposition is not simply the increments without modifying them However, we continue to believe, based
result of emissions of NOX, but of other argued that short-term increments were primarily on the evidence in the 1993
nitrogen compounds as well, including needed to meet our responsibility to Criteria Document and 1995 Staff Paper
ammonia and ammonium. For example, provide health and welfare protection for NOX, that there is insufficient
when ambient concentrations of under the requirements of section 166(c) evidence to justify a national short-term
ammonia and nitric acid are sufficiently of the Act. NO2 increment to provide additional
high, ammonium nitrate can be formed However, for the reasons discussed health protection. As mentioned above,
and both the ammonium and the nitrate below, we are not persuaded that short- as part of the last review of the NO2
become components of nitrogen term NO2 increments are necessary to NAAQS in 1996, EPA did not find
deposition contributing nitrogen to an satisfy the factors applicable under adequate evidence that health effects
ecosystem. For these reasons, we do not section 166(c). from short-term exposure NO2 occurred
believe it is feasible to adopt an Under the ‘‘contingent safe harbor’’ in areas where air quality levels met the
additional increment for another form of approach discussed above, we began our NO2 NAAQS.
NOX to protect air quality values, health analysis with the ‘‘safe harbor’’ The Administrator concluded from
and welfare, and parks and special increments that are based on the same that review that the annual standard of
areas, from NOX emissions increases annual averaging time used in the 0.053 parts per million (ppm) NO2
associated with new and modified PSD NAAQS. Since 1988, EPA has not found provides ‘‘substantial protection’’
sources. Thus we are adopting the ‘‘safe cause to promulgate a NAAQS for any against the identified health effects
harbor’’ increments and retaining the averaging period other than the annual (mild changes in pulmonary function or
existing increments for NO2. Under average. Thus, since this is the only airway responsiveness in sensitive
these circumstances, the NAAQS averaging time used in the current individuals) associated with short-term

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peaks occurring in the range of 0.2 to 0.5 public review process, to determine than 50 kilometers from a Class I area,
ppm—almost one order of magnitude whether it is appropriate to adopt a and involves modeling the potential
higher than the annual standard. 60 FR short-term primary NO2 NAAQS. In plume impacts to calculate 1-hour
52875, 52879–80 (October 11, 1995). accordance with the requirements of impacts within the elevated plume
The adequacy of the annual standard to section 166 of the Act, following based on the concentrations of fine
protect against these potential short- promulgation of any revised NAAQS for primary particulates and NO2 emitted
term effects was further supported by NOX, based on the same body of by the source. The effects of secondarily
the absence of documented effects in scientific and technical evidence, we formed sulfates can also be considered,
some studies at higher concentrations (3 will also review that evidence against where applicable and appropriate, in
ppm to 4 ppm). the requirements of section 166(c) to the modeling procedure.
We continue to believe that the determine the need to modify the We do not believe it would be
existing primary annual NO2 NAAQS existing NO2 increments. However, at appropriate to establish a short-term
provides sufficient protection against this time we do not believe there is a NO2 increment to address this visibility
the likelihood of short-term NO2 need to modify the existing NO2 impairment problem when it is known
concentrations that would cause adverse increments to provide a nationwide that the problem is associated with
human health responses in most areas of level of health protection beyond what multi-pollutant impacts. The problems
the U.S. We have no evidence at this is being provided by the primary annual associated with coherent plumes are
time showing that there is a problem NO2 NAAQS. currently addressed through protection
from a national perspective concerning In addition, the information that we of AQRVs and the ‘‘additional impacts’’
short-term NO2 concentrations that reviewed concerning welfare effects analysis. (Congress explicitly identified
would represent a threat to human associated with short-term exposure to visibility as an example of an AQRV.)
health, and the commenters have not NOX did not convince us that there was We believe that this is the most effective
provided information indicating a a justification for a short-term increment way to address this multi-pollutant
national problem for us to consider. We to provide additional protection against problem.
do know that high maximum 1-hour adverse welfare effects. The available Some commenters recommended
NO2 concentrations have been measured information indicated that known short-term increments to protect against
in a few locations, including impacts were insignificant in some the increasing NOX pollution impacts.
California—the only State that has cases (e.g., effects on terrestrial In this regard, we do not find a
adopted a short-term air quality vegetation), while in other cases (e.g., justification to establish a short-term
standard for NO2 (0.25 ppm, 1-hour).29 chronic acidification of surface waters) increment for either NO2 or any other
We have reviewed NO2 air quality insufficient information existed to form of NOX. In the latest review of the
data collected from 592 monitoring site quantify how much of a contribution NO2 NAAQS, the Administrator
locations nationally from EPA’s Air nitrogen deposition was making to the concluded that the impact on terrestrial
Quality System to determine how problem and what levels of reduction vegetation from short-term exposures to
effective the current primary annual would be needed to remedy the negative NO2 under existing ambient levels is
NO2 NAAQS is in preventing high impact. The effects that we reviewed are insignificant and did not warrant a
short-term NO2 concentrations. These summarized in greater detail below and short-term standard (1995 Staff Paper
data show that, since 1999, only 14 sites in section V of this preamble. for NOX, p. 91). The Administrator also
(a few with multiple occurrences) across Two commenters recommended that considered the welfare impacts from
the U.S. have recorded peak 1-hour we adopt a 1-hour NO2 increment to nitrate deposition during the last review
concentrations exceeding 0.25 ppm prevent coherent plume (discoloration) of the NO2 NAAQS. The evidence
NO2. Only one monitoring site recorded visibility impairment. We do not believe indicated, however, that none of the
such peaks from 2003–2004. Thus, from that a short-term NO2 increment for welfare impacts from nitrates were
a national perspective, we do not find such purposes is supported by the directly attributed to short-term ambient
support for a short-term NO2 increment available evidence. As we indicated in nitrate concentrations. In those cases
to provide health protection beyond that our description of welfare effects in where nitrogen deposition was shown to
being provided by the existing annual section V of this preamble, NO2 can cause episodic or ‘‘short-term’’ effects,
primary NO2 NAAQS. cause a discoloration effect in a plume such as episodic acidification of
We are aware of the fact that later resulting in potential visibility streamwaters, the problem was typically
studies have been published concerning impairment. However, the evidence also the result of a long-term accumulation
human responses to short-term exposure indicates that the presence of particulate of nitrogen compounds that were
to ambient NO2 concentrations. These in the plume can result in similar released suddenly to the ecosystem (e.g.,
studies will be considered in the discoloration. Thus, the problem is not snowmelt runoff to lakes and streams)
Agency’s next periodic review of the exclusively caused by NO2. Moreover, rather than the direct result of short-
NO2 NAAQS. To the extent that any the 1995 Staff Paper for NOX noted that term concentrations of nitrates being
new relevant information is despite the known light-absorbing transferred from the atmosphere.
incorporated into the Criteria Document qualities of NO2, ‘‘there are relatively The ability to quantitatively relate N
for oxides of nitrogen, we will carefully little data available for judging the deposition to episodic acidification
evaluate such evidence under the actual importance of NO2 to visual air conditions is further hampered by
rigorous process described earlier in this quality.’’ evidence indicating that, because of
preamble, involving CASAC and a Visibility impairment associated with conditions of nitrogen saturation,
coherent plumes is currently addressed episodic acidification of surface waters
29 It should be noted, however, that California’s as part of the requirements for the and increased loadings to estuaries
standard was not established on the basis of new AQRV review and the additional could worsen even without concurrent
information since our last periodic review of the impacts analysis. This methodology increases in N deposition. Later studies
NO2 NAAQS. California established an ‘‘Adverse measures visibility impairment resulting have verified this situation and have
Level’’ for NO2 (0.25 ppm, 1-hour) in 1962. In 1969,
the California Air Resources Board set a short-term
from multiple pollutants. The test for indicated that temperature change,
air quality standard for NO2 using the original alert visibility impairment of this type is among other things, rather than direct
level. typically applied to sources locating less changes in the N deposition rate, can be

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more influential in the increased nitrate particulates under certain described in the 1988 NO2 increment
acidification conditions. One later study conditions. Although ozone, PM10, and rulemaking, we considered it
we reviewed subsequent to the proposal PM2.5 have short-term NAAQS to protect appropriate for NO2 increments to be
revealed a positive correlation between against public health effects associated derived using the same percentages that
short-term increases in stream nitrate with short-term exposure to these Congress used for SO2 because NO2
concentrations and mean annual air pollutants, EPA does not consider the more closely resembles SO2 than PM in
temperature (affecting nitrogen impacts from these criteria pollutants, its characteristics and sources. See 53
movement in a watershed), while because it interprets section 166 to FR 3698, 3700 (February 8, 1988).
finding no statistically significant require consideration of these criteria Because the NO2 increments have not
correlation between deposition and pollutants separate and distinct from the changed since 1988, the percentage-of-
stream nitrate concentrations. duty to consider NOX. NAAQS approach yields the same levels
(Murdoch, 1988.) Based on these considerations, we that we derived in 1988. Thus, using
One commenter recommended a believe that an annual average this approach, the ‘‘safe harbor’’ level
short-term ammonium nitrate increment increment for NO2, coupled with the for the Class I NO2 increment was
to address visibility problems associated requirements for the ‘‘additional calculated as 2.5 µg/m3 (annual
with regional haze. However, we do not impacts’’ and AQRV protection in Class average), a level equal to 2.5 percent of
believe it is necessary to address this I areas, is sufficient to protect air quality the NO2 NAAQS. For the Class II NO2
pollutant through our PSD regulations values, health and welfare, including increment, the ‘‘safe harbor’’ level is 25
for NOX. Ammonium nitrate is a form of the sensitive ecosystems in parks and µg/m3—25 percent of the NO2 NAAQS.
PM (i.e., nitrate particulate), and we other special areas. Thus, we revert to For the Class III NO2 increment, the
already addressed the contribution of the ‘‘safe harbor’’ of the existing annual ‘‘safe harbor’’ level is 50 µg/m3—50
ammonium nitrates to total ambient PM NO2 increments and decline to adopt percent of the NO2 NAAQS.
levels and their effects on visibility additional increments for shorter Our next step was to consider the
(regional haze) under the PM program.30 averaging periods under this final factors applicable under section 166(c)
In revising the NAAQS for PM in 1997, action. and evaluate whether we needed to
EPA considered the welfare effects of (3) Level of NO2 increment. Having revise the ‘‘safe harbor’’ level to satisfy
PM, including nitrates, on visibility concluded from the available scientific these factors. To the extent we were to
impairment in considering the need to and technical evidence that additional find that the marginal increase in
revise the secondary PM standards. In increments based on other forms of NOX concentration allowed by the ‘‘safe
doing this, we considered the pertinent or other averaging periods are either not harbor’’ level did not adequately protect
scientific and technical information necessary or not feasible, the remaining against these effects and ensure
contained in the current Criteria issue we evaluated in response to the economic growth consistent with
Document for PM and Staff Paper for court remand was whether there was a preservation of clean air resources, we
PM to determine what an appropriate need for lower annual NO2 increments. were obligated to attempt to identify an
level would be for a secondary standard Our review of the applicable scientific alternative level of marginal increase
to address adverse effects of PM on and technical evidence provided no that would satisfy the factors applicable
visibility. We concluded from that basis for us to propose modifying the under section 166(c).
process that a 24-hour PM2.5 primary levels of the existing NO2 increments. In order to identify the appropriate
standard in conjunction with a national As part of our proposal, the analysis level of increase for ambient NO2
regional haze program would be the of the appropriate levels for NO2 concentrations, we attempted to
more effective way to address regional increments began by establishing a ‘‘safe establish a quantitative relationship
variations in the adverse effects of fine harbor’’ increment level that was ‘‘at between the emissions of NO2 and
particulate on visibility than by least as effective as’’ the increments potential adverse effects. Unfortunately,
establishing national secondary established by Congress in section 163 this approach was hindered for several
standards for PM that would be lower of the Act. 42 U.S.C. 7476(d). Under our reasons. First, the available evidence we
than the PM2.5 primary standards. See interpretation of the Act, we reviewed was inconclusive regarding
62 FR 38652, July 18, 1997 at 38679– preliminarily concluded that these ‘‘safe the pollutant concentrations at which
38683. harbor’’ levels established the minimum the effects may occur. As previously
An important consideration in stringency levels (or highest marginal described, in some instances, the
arriving at this decision was that there increase in concentration levels) that we available scientific and technical
were significant differences in then- may use as the increments for NO2 for evidence revealed no significant effects,
current visibility conditions in different each class of area. while in other cases the evidence
areas of the country that could not The court in EDF v. EPA recognized revealed uncertainty about the direct
effectively be addressed by a uniform that the ‘‘at least as effective’’ standard relationship between the pollutant and
national standard. Because our national in section 166(d) of the Act is satisfied its precise role in causing the effect.
control strategy for PM will include when we establish increments using the This requires an understanding of the
consideration of ammonium nitrate percentage-of-NAAQS approach that intermediate transformation processes
particles, we find no basis for Congress used to establish the statutory and the deposition patterns and total
establishing a short-term increment for increments. See 898 F.2d at 188. This quantities of those nitrogen compounds
ammonium nitrate to protect against approach involves using the same which may contribute to the known or
visibility impairment as part of the PSD percentages that Congress used to observed effects, as well as the nitrogen
regulations for NOX. calculate the PM and SO2 increments contribution to ecosystems from natural
EPA has also recognized that NOX from the NAAQS in effect at that time geobiochemical processes.
results in the formation of ozone and for these pollutants. Because Congress Second, since many of the negative
used different percentages to calculate effects were associated with total
30 ‘‘Impairment of visibility in multi-State regions,
the Class I increments for PM and SO2, nitrogen deposition (indirectly
urban areas, and Class I areas is clearly an effect of we had to decide which of these associated with NO2), i.e., caused by
particulate matter on public welfare.’’ OAQPS Staff
Paper for Particulate Matter, July 1996 at p. VIII– percentages was appropriate for the NOX compounds which have been
15. Class I NO2 increment. For the reasons transformed from NO2 in the

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atmosphere, it was also necessary to also balancing the need to allow we believe there may be certain
attempt to understand the quantitative economic growth. circumstances when it is appropriate to
relationship between emissions of NO2 We continue to believe our ultimate review the increments for certain types
(the regulated form of the increment) obligation under section 166 of the Act of NAAQS revisions. For example,
and the observed negative is to establish a set of regulations for should EPA determine as part of a
environmental effects. Such NOX which contain provisions that periodic review of the NO2 NAAQS to
relationships could not be sufficiently collectively satisfy the content promulgate a new, short-term NAAQS,
identified from the available evidence. requirements in sections 166(c) and then we believe it may be appropriate to
As a result of these findings, we 166(d) of the Act. Thus, we think consider the promulgation of a short-
proposed to find that the necessary Congress contemplated that we would term increment as well. Nevertheless,
scientific evidence was not yet available consider the entire set of regulations this final action being taken today
to determine that the existing safe when we establish specific aspects of regarding the NO2 increments is not a
harbor NO2 increments are not those regulations. As a result, we periodic review of the increments but a
adequately protective for purposes of believe it is appropriate and consistent response to a court order requiring us to
defining ‘‘significant deterioration.’’ with our statutory obligations to demonstrate the adequacy of the NO2
Therefore, we proposed to retain the consider the protection provided by the increments, which we promulgated in
existing NO2 increments to limit additional impacts analysis and the 1988, in accordance with the relevant
allowable increases in ambient FLM review of AQRVs when evaluating requirements that Congress provided for
pollution associated with NOX the level of NO2 increments that defines promulgating pollutant-specific PSD
emissions and protect against health ‘‘significant deterioration.’’ increments under section 166 of the Act.
and welfare effects that might occur in Thus, based on the overall d. Future considerations.
areas where the air quality is better than insufficiency of the available scientific We agree with the commenters who
the NO2 NAAQS. and technical evidences to enable us to have recognized the complexity of the
define a quantitative dose-response total nitrogen deposition issue and
Some commenters objected to this
relationship, we believe the ‘‘safe suggested that it will take time to better
proposed decision to retain the existing
harbor’’ approach for setting the understand the problems and solutions.
increments, although most of them
increment levels is sufficient to satisfy The Act does not authorize EPA to
generally did not suggest ways to revise
the factors applicable under section reevaluate or upgrade the increments
the existing levels (other than to
166(c), when coupled with the overall periodically, but generally requires new
recommend short-term NO2 increments)
framework of PSD regulations PSD regulations, which may include
to make them more protective. For the
applicable to NOX. This approach increments, following the promulgation
most part, the studies and information
generally maximizes opportunities for of NAAQS.31 Thus, as new information
provided by these commenters advance economic growth while ensuring that comes along to better document the
the knowledge about N deposition each area receives a sufficient level of dose-response relationships between
trends and how nitrogen inputs protection against ‘‘significant NOX and the various health- and
adversely affect sensitive resources at deterioration’’ of air quality consistent welfare-related effects, we are not
various locations, but they also support with Congressional policy. To the extent necessarily obligated to revise the
our original conclusions in the February necessary, the case-by-case additional existing increments for NOX unless such
2005 proposal that there is not yet impact analysis (in Class I and II areas) information results in changes to the
sufficient evidence to quantify a dose- and AQRV review (in Class I areas) will NAAQS. Hence, after any changes to the
response relationship between NOX and provide additional protection in NAAQS, we would likely evaluate the
the various negative effects being particular areas that may be more PSD regulations for NOX to determine
observed and reported. sensitive to nitrogen loadings resulting what modifications, if any, are
We could establish more stringent from NOX emissions. Under these appropriate to meet the requirements of
increments simply by setting the circumstances, we can find no basis for section 166 of the Act.
allowable levels of pollutant increases at modifying the safe harbor increments, This is not to say, however, that the
lower numerical values; however, we based on the approach established by advance of relevant scientific and
can find no basis for determining what Congress for the statutory increments. technical evidence could not be used to
particular lower values would provide Thus, we retain the existing NO2 establish more effective mechanisms as
the ‘‘correct’’ level of protection against increments that were established at the part of the PSD regulations where we
the types of effects that have been ‘‘safe harbor’’ level using the statutory deem them to be appropriate. An
identified. Consequently, we believe it ‘‘percentage-of-NAAQS’’ approach. example of this would be the use of the
would be inappropriate to arbitrarily Several commenters seemed to critical loads concept. In the February
select more stringent values for the NO2 suggest that we should no longer be 2005 proposal, we proposed not to
increments that are not supported by the relying on increments promulgated in incorporate a critical loads approach as
available scientific and technical 1988 to protect the environment and part of the national increment system
evidence. that it was time to update them. (see 70 FR at 8914). We continue to
Lacking a clear quantitative basis for However, the Act does not provide a believe that it would not be appropriate
establishing lower increment levels, we mechanism for periodically reviewing to do so at this time. Therefore, in
conducted a qualitative evaluation of the increments for a particular today’s final action, we are not adopting
the safe harbor increments in light of the pollutant. EPA’s statutory responsibility a critical loads approach in lieu of the
considerations discussed above. To for developing increments is linked to existing NO2 increments, nor are we at
achieve equity and protect against its responsibility for promulgating
effects that are variable across regions of NAAQS. Section 166 requires EPA to 31 Section 166(a) of the Act requires in part that

the country, we believe each of the NO2 promulgate increments for a pollutant ‘‘In the case of pollutants for which national
increments should be set at a level that following the promulgation of NAAQS ambient air quality standards are promulgated after
the date of enactment of this part, he [the
reasonably protects air quality values, for that pollutant. While the Act is silent Administrator] shall promulgate such regulations
health and welfare, and parks and in section 166 on how EPA is to respond not more than 2 years after the date of promulgation
special areas across the country, while to future revisions to existing NAAQS, of such standards.’’

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this time incorporating a critical loads 1. States May Adopt ‘‘Other Measures’’ achieve this goal. One specific planning
approach into the overall PSD That Fulfill Section 166 of the Act goal we proposed was to keep statewide
regulations for NOX. However, we In options 2 and 3 of the proposal, we emissions of NOX from all sources
remain interested in the concept and proposed to address the requirements of below 1990 levels.
recognize its potential for addressing the Several commenters expressed
section 166 of the CAA for NOX through
adverse effects of nitrogen deposition. concerns that option 3 of the proposal
the review and approval of State
We discuss the critical loads approach did not include sufficient detail. We
programs that employed alternative
more in section VII of this preamble. agree with the commenters that there
approaches to fulfill the requirements of
Yet, we recognize that we may be were numerous specific elements of the
sections 166(c) and 166(d) of the Act.
obligated to consider modifications to State planning approach that we had not
We are codifying only this core
the existing increments as new scientific fully addressed in our proposal. The
principle in our regulations today
and technical information becomes unresolved issues related to option 3
without identifying any specific type of
available, and when revisions to the included the following: (1) Timing of
alternative program that would meet the SIP approval with discontinuation
existing NO2 NAAQS are made. these requirements. EPA is postponing
However, even as threshold levels of of NOX increment tracking; (2) a State
decisions on adequacy of specific plan’s failure to prevent significant
adverse impact are able to be defined for elements of a State’s alternative
individual ecosystems, the diverse range deterioration due to NOX emissions; (3)
approach until such time as the State periodic assessment of PSD cumulative
of responses of nitrogen to different submits its plan to EPA in a case-by-
ecosystem as well as the number of increment impacts; (4) additional
case SIP approval process. We believe measures (backstops); (5) potential for
factors (and interactions of those factors) this less prescriptive approach may
which determine the response of localized adverse impacts; and (6)
allow some States to employ an effects of an alternative approach on air
ecosystems to anthropogenic nitrogen alternate approach sooner and more
input will make it very difficult to quality in neighboring States.
efficiently, without waiting for EPA to Because we have not yet resolved
establish uniform national increments develop a comprehensive one-size-fits- these issues, we have decided to codify
which, by themselves, provide both an all program through additional only the core element of options 2 and
adequate level of protection in the most rulemaking. 3—the principle that a State may
sensitive areas and a reasonable Accordingly, we are amending our employ alternatives to increment upon
measure of ‘‘significant’’ deterioration in PSD rule at § 51.166 to reflect that an a proper demonstration. Thus, instead
less sensitive areas. alternative approach to maximum of seeking to resolve these issues for
B. State Option To Employ Alternatives allowable pollutant concentrations or every State in advance through a
to Increment increments for NO2 that meet the rulemaking action, we will consider
requirements of section 166 of the Act these types of issues on a case-by-case
We are amending our regulations to may be employed upon approval by the basis during review of individual State
explicitly give States the option to Administrator. We are requiring that a plans. At this time, we believe we can
continue implementing the NO2 State’s alternative approach meet three more effectively consider and address
increment program or to design an broad criteria, which will be explored in such issues in the context of specific
alternative approach as part of its SIP more detail on a case-by-case basis. The plan approvals.
and submit this program to EPA for approach must: prevent significant Although option 3 of our proposal
approval. If any States wish to pursue deterioration of air quality due to lacked detail, several commenters
the latter option, EPA will review State emissions of NOX; fulfill requirements tentatively supported the flexibility
requests on a case-by-case basis to of section 166 of the Act; and be provided by option 3. Some commenters
determine if the State alternative demonstrated in the SIP. We are not preferred a case-by-case approach to
program satisfies the requirements of establishing criteria, other than the having ‘‘one-size-fits-all’’ criteria
sections 166(c) and 166(d) of the CAA requirements of the Act itself, by which applicable to each State. Several
and prevents significant deterioration of to review a State’s submittal, and we are commenters encouraged flexibility to
air quality from emissions of NOX. not defining any particular type of acknowledge the differences in the air
We are not establishing any specific alternative approach for States to use as quality and types of sources among
regulatory criteria to govern the review a substitute for the NOX increments. western and eastern States.
and approval of such a program other Rather, we are simply making clear in Other commenters opposed giving
than what is already contained within the regulations that States have the States flexibility on the grounds that
section 166 of the CAA. EPA is not flexibility to employ an alternative this would result in a lack of uniformity
prepared at this time to conclude that approach to the NOX increments. nationwide. One commenter was
any particular type of program other concerned that State-to-State levels of
than the existing increment framework 2. EPA Is Not Adopting Elements of NOX protections would vary, resulting
meets the requirements of sections Option 3 in an uneven playing field for regulated
166(c) and 166(d) of the CAA. However, Although this approach of allowing sources.
as discussed in section IV above, we States to submit alternative programs We recognize there are reasons to
continue to believe EPA’s obligation has some similarities to our proposed support flexibility and reasons to
under section 166 to promulgate option 3, we are not adopting several of support uniform treatment. We
pollutant-specific regulations for NOX the elements that we proposed as part addressed the juxtaposition of these
can be satisfied by allowing States to of option 3 (the State planning issues in evaluating the increment
demonstrate that ‘‘other measures’’ approach). When we proposed option 3, system and related provisions, as
besides increments will prevent we envisioned that the EPA could discussed in more detail above. Our
significant deterioration of air quality establish a specific planning goal for conclusion for those circumstances was
due to an increase in emissions of NOX, States, or require each State to establish that we could to some extent balance
as long as those measures are consistent one, and then provide a process by these concerns by combining a uniform
with the requirements of sections 166(c) which States would demonstrate how increment system with a case-by-case
and 166(d) of the Act. the measures in their SIPs would review of additional impacts and

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AQRVs. We believe we can also alternatives to increment could threaten flexibility to employ a program that may
consider the need for a level playing the tribes’ abilities to regulate their own be more effective than increments in
field and the need to address regional environmental quality and expose tribal preventing significant deterioration of
variability when reviewing individual environmental resources to greater risk air quality from emissions of NOX. For
State alternatives. Thus, we do not of pollution. These commenters also example, a State could adopt an
believe we should foreclose expressed a concern that such emissions reduction plan for NOX,
permanently the option for States to alternatives would be inconsistent with under authority other than the PSD
demonstrate that they can design an the Federal government’s trust program, that limits NOX emissions
alternative program. We favor giving responsibility to tribes. We do not from particular sources to a greater
States the option to experiment and believe this option will infringe the extent than would occur under an
consider approaches that are uniquely tribes’ abilities to regulate their increment approach that focuses on
suitable to a particular area, provided environments, harm tribal marginal increase in emissions.
that such approaches do not result in environmental resources, or overlook In addition, although we believe the
imbalances in NOX regulation across the the Federal government’s trust increment program is effective at
country. responsibility to federally-recognized limiting emissions increases, the
Some commenters were against tribes. At this point, it is difficult to process of tracking consumption of
option 3 because they believed EPA determine whether a specific alternative increment and modeling changes in
might require States to develop an program may affect adjacent areas, such emissions concentrations can be time-
alternative to increments. Our final as areas of Indian country. We want to consuming and resource-intensive. A
action today does not require a State to emphasize, however, that any State’s State that employs an EPA-approved
develop an alternative to the NO2 alternative program will be carefully alternative approach to the NO2
increments. States have the flexibility to evaluated to address potential concerns increments program would not be
continue implementing the NO2 that affected entities may have, whether required to maintain an NO2 increment
increments or to pursue approval of it be another State, a tribal governing inventory. In addition, PSD permit
other measures besides increments that body, or an FLM for a nearby Class I applicants in the State would not be
achieve the same objectives. area. Each State alternative program will required to conduct an individual
Several commenters opposed option 3 be evaluated on a case-by-case basis and analysis to demonstrate that they do not
on the grounds that it would not subjected to public review and comment
provide adequate protection for parks cause or contribute to a violation of the
as part of the SIP review and approval increments. Other measures would be
and AQRVs. These commenters were process. We believe that it is reasonable
concerned that option 3 did not account used to fulfill the requirements of the
to expect that States will communicate Act.
for a source’s distance and direction and cooperate with other potentially
from a Class I area. The commenters affected governing entities as part of the 4. Future Actions Regarding
indicated that these variables could process of developing an alternative Alternatives
have a major effect on whether a program. In addition, any such
source’s NOX emissions adversely Although we are not outlining a
alternative program would need to be
impact AQRVs. A State will be required specific alternative program at this time,
approved by EPA. In determining
to demonstrate that any alternative we continue to see promise in using a
whether to approve such programs, EPA
approach to increments protects parks would act consistent with the Federal cap and trade approach modeled on the
and AQRVs. In addition, we recognized government’s trust responsibility, CAIR to reduce NOX emissions in order
that an unresolved issue under our including conducting appropriate to meet the goals of the PSD program for
option 3 was the potential for localized consultation with tribes to help ensure NOX. As a result, we intend to publish
adverse impacts. We will ensure that that the interests of the tribes are a supplemental notice of proposed
these issues are addressed before considered in this process. Although no rulemaking that will explore this option
approving an individual program specific process has been established for further. This notice will build on
submission. tribes to consult with EPA on SIP proposed option 2 and provide more
One commenter suggested that State approvals on a government-to- details on how a State that achieves the
planning approach be used as the government basis, we will endeavor to NOX emissions reductions required
foundation of a broader regional strategy provide additional opportunities for under CAIR can fulfill the objectives of
to address air quality impacts of NOX, consultation and continue to carefully the PSD program, satisfy the statutory
and not only NO2. The commenter consider comments submitted by tribal requirements of section 166 of the Act,
believed that larger regional issues officials. This process should help and obviate the need to implement the
could not be addressed under option 3, ensure that all concerns are considered NO2 increments program.
as proposed, given the increased and that environmental resources are VII. Measures Not Proposed as Options
population growth projected for western protected prior to approval of an
States and attendant growth of urban alternative program through the SIP In the February 2005 proposal, we
areas. Our intent with this regulation is submittal process. proposed not to use a ‘‘critical load’’ as
to provide for the review of alternatives a means of identifying an alternative
on a State-by-State basis. However, to 3. Benefits of an Alternative Approach increment level or to incorporate the
the extent that groups of States wish to States have always had the option to concept of critical loads into the PSD
develop regional strategies, EPA will submit alternative approaches in their regulations for NOX at the present time.
consider them to determine if they meet SIPs that can be shown to be more Critical loads can be defined as
the requirements of the Act. In addition, effective than the minimum program ‘‘quantitative estimates of an exposure
we will continue to evaluate EPA’s elements established by EPA, but States to one or more pollutants below which
options for promulgating regional may not have recognized that a system significant harmful effects on specified
strategies to address the commenter’s other than increments may be utilized to sensitive elements of the environment
concerns. prevent significant deterioration from do not occur according to present
Tribal commenters were concerned emissions of NOX. The alternative knowledge.’’ See 1995 Staff Paper for
that allowing States to implement approach provides States with the NOX at xi–xii.

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Our proposal not to incorporate determine the goals of emissions control further study the critical loads concept
critical loads into our pollutant-specific and management practices related to by initiating pilot projects or a
PSD regulations for NOX was based ecosystem protection. Clearly, the demonstration critical loads program by
largely on our preliminary conclusion ‘‘critical loads’’ concept is one way to working with States, FLMs, tribes, and
that the scientific basis for developing describe the level at which a specific others to select natural areas where
and applying critical loads was still natural area or system is negatively existing information is adequate to do
emerging. We also raised an issue about impacted by air pollution. With so.
critical loads that related to the possible sufficient information, critical load We agree with the commenters
use of critical loads to identify an determinations for nitrogen deposition recommending that the current
alternative level for the existing NO2 can be related to location-specific increment system should continue to be
increments. Because of the vastly indicators of ecological change, such as applied under the PSD regulations for
differing sensitivities and potential episodic and chronic acidification of NOX. However, as explained in section
effects associated with ecosystem streams and rivers, chemical changes in VI, we do not agree that there is
resources in different regions of the soils, or nutrient enrichment and sufficient basis for modifying the
United States, we expressed our belief eutrophication. existing NO2 increments. Therefore,
that critical loads do not represent an Over the past 20 years, the scientific under today’s final action, we are not
appropriate tool for setting a single, community has gained increasing modifying the existing NO2 increments,
uniform, national standard, such as a knowledge regarding the impacts of but retaining them at their existing
PSD increment level. atmospheric emissions of certain criteria levels and form.
We did acknowledge, however, that pollutants (NO2, SO2, and ozone) on We do agree with commenters that
States could propose to use a critical natural systems. Studies that we further research is necessary and
loads concept. For example, where reviewed as part of this rulemaking to appropriate to further evaluate the
adequate information might be determine the adequacy of the existing critical loads concept. As mentioned
available, States could use critical loads NO2 increments illustrate that scientists above, in recent years, ecosystems
as part of their own air quality now understand that both ambient research has produced findings that are
management approaches, and EPA exposure to and deposition of various sufficient to identify changes to many
would consider it when determining nitrogen compounds have gradually sensitive elements of the environment at
whether the overall air quality changed the ecological balance of specific locations resulting from
management approach satisfied the PSD natural systems in many areas of the atmospheric nitrogen deposition in its
requirements. See 70 FR at 8914. United States. Detailed descriptions of
various forms. Nitrogen impacts have
Five commenters agreed with our the ecological effects of nitrogen
been documented in areas ranging from
assessment that it would not be deposition can be found in many of the
appropriate at this time to use critical East Coast estuaries to high-elevation
studies that we examined as part of the
loads as part of the PSD regulations for systems in the Colorado Front Range to
review of the existing NO2 increments
NOX. These commenters generally southern California chaparral
(see section V of this preamble), but in
agreed that the critical loads concept communities. Nitrogen deposition in
most every case it is not yet possible to
was not ready to be used for PSD these areas impacts diverse ecological
quantify the levels of deposition
purposes. In addition, some felt that it communities ranging from fisheries to
responsible for such changes.
would be inappropriate for EPA to use Commenters did not provide any alpine lakes to grasslands.
critical loads as non-uniform national information to show us that sufficient Even with advances in our
standards. One argued that the use of information is available at this time to understanding of nitrogen cycling in the
critical loads would improperly prohibit use the critical load concept as part of environment, scientific challenges
economic growth. the national PSD program for NOX. remain in relation to setting
On the other hand, nine commenters Moreover, we believe that from the scientifically valid critical loads. These
responded to our proposal by opposing information that is available, because challenges include the following:
our decision not to use critical loads in ecological systems are quite • Data requirements and availability:
some way under the PSD regulations for heterogeneous, critical loads would not Critical loads for acidification and
NOX. These commenters recommended serve as an appropriate replacement for nutrient-related ecosystem changes for
using critical loads as either complete the uniform national NO2 increments. sensitive aquatic and terrestrial systems
replacements for the existing NO2 However, if the science is further depend on many ecosystem
increments or as a supplemental developed, we do agree with those characteristics, compounded by the fact
measure for the increment approach. commenters who suggest that location- that these characteristics are
The comments recommending the use of specific critical loads could be used heterogeneous across space. Such
critical loads as a supplemental measure effectively to augment the existing characteristics include topography,
suggested that critical loads could increment system for NOX at those elevation, slope, bedrock geology, soil
augment the proposed uniform NOX locations. characteristics, soil chemistry, land use
increment approach by providing a tool Two of the commenters supporting history, water body and watershed
through which permitting authorities critical loads indicated that we should surface area, surface water chemistry,
could consider ecosystem changes in revise the existing NO2 increments and meteorology, climate, plant species
more sensitive areas. In such areas, they continue using the increment system as composition, biomass, and plant
believed a critical load could provide a an interim approach, while studying the nutrient concentrations. Depending on
science-based target for protection. critical load concept for future the critical loads calculation method
We agree that critical loads represent implementation as part of the PSD used, some or all of the data described
a promising mechanism for addressing program. These commenters agreed that above are necessary inputs for
environmental impacts associated with ultimately the critical loads approach establishing critical loads. Clearly,
atmospheric nitrogen deposition. For was the most effective way to protect establishing critical loads is a very data-
example, once further developed, the the environment from the adverse intensive exercise. The challenge will be
critical load concept could potentially effects of nitrogen deposition. Several to determine the amount and types of
be used as a location-specific means to other commenters also urged EPA to data that are necessary and available for

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calculating critical loads at local to selected areas where there may be source permit reviews and comments on
regional scales. sufficient information on nitrogen SIP pollution control strategies. These
• Multiple methods and models: In deposition and ecosystem effects to efforts could serve as the basis for
addition to data issues, the current establish critical loads. Under this final continuing review and evaluation by a
multiplicity of methods for calculating rule, the Agency encourages States, cooperative agreement with EPA, States
critical loads poses a practical challenge tribes and FLMs to join with EPA in and other interested parties.
that may complicate application of the exploring the voluntary use of critical One commenter believed that EPA
critical loads approach for air quality loads as a basis to address effects of should elaborate on the way we
management. At least three approaches nitrogen deposition on ecosystems for envision States’ using critical loads
are currently employed for calculating such areas. With appropriate public within their State PSD programs. This
critical loads: empirical approaches in input, cooperative critical load projects commenter further believed that States
which critical loads are based on the could lead to implementation plans that should be encouraged to consider
relationship between an observed demonstrate protection against critical load data where such data
detrimental ecological effect and the deterioration of AQRVs from nitrogen indicate that the current NO2
deposition level at which the effect impacts, eliminate the need for NO2 increments and current permitting
occurred; steady-state approaches using increment tracking, and reduce the procedures are not providing adequate
simple mass-balance models; and extent of assessments needed for environmental protection.
dynamic modeling approaches. While permitting new sources that may impact In our February 2005 proposal, we
each approach has advantages and AQRVs in Class I areas. In addition,
indicated that States, considering the
disadvantages, the National Research such an approach may fit within the
state of the science, may propose use of
Council recently stated that reliance on structure of existing requirements.
steady-state models can introduce critical load information as part of their
EPA will work with interested States,
uncertainty into critical loads air quality management approach. If
tribes, Federal land management
calculations and observed that ‘‘the such a proposal were made, EPA would
agencies and others to identify the
numerous methods for calculating both consider it in determining whether the
components needed to develop and
critical loads and exceedance levels State’s approach satisfied its PSD
implement cooperative projects to
allow for inconsistency in requirements. We envision the
explore the feasibility and usefulness of
implementation’’ (NRC, 2004). Model development of critical loads to be a
a critical loads approach. EPA believes
comparison efforts will help to resolve phased, ongoing process. As critical
such projects are a means through
issues regarding critical load calculation loads are calculated for specific
which to explore whether a critical
approaches and enable evaluation of the receptors in a particular area, such as
loads approach could be an efficient
data needs and relative applicability of forest soils, or surface waters, using a
approach to ensure protection of
steady-state and dynamic modeling dose-response relationship, and such
ecosystems and other AQRVs as part of
approaches. critical loads are adequately peer-
the existing increment system, and also
• Critical load variations: Critical reviewed, we encourage affected States
meet other purposes of the Act. Such an
load values vary depending upon factors to consider working closely with the
approach could reduce the
such as the ecosystem response of applicable FLM to establish agreements
administrative burden on States and
interest or the spatial context. At a given and procedures for incorporating the
new sources. Collaborative efforts to
location, for example, critical loads can critical load concept into their PSD
explore a critical loads approach for
vary depending upon the ecosystem permit process for protecting AQRVs.
nitrogen would provide insight into the
response indicator of interest—critical general role of critical loads in future air VIII. Statutory and Executive Order
loads for soils are often different than quality management programs. Reviews
critical loads for freshwater systems. The statutory PSD provisions
Similarly, critical loads for an authorize Federal land management A. Executive Order 12866—Regulatory
ecosystem response indicator may vary agencies, including NPS and the U.S. Planning and Review
across local to regional spatial scales. Forest Service, to play a special role in Under Executive Order 12866 (58 FR
The challenge will be to integrate local- protecting AQRVs in their Federal Class 51735, October 4, 1993), the Agency
scale critical loads (e.g., for a Class I I lands.32 In this context, the FLMs are must determine whether the regulatory
area) and regional-scale critical loads also responsible for identifying AQRVs action is ‘‘significant’’ and therefore
when implementing air quality in Class I areas and assessing whether subject to review by the Office of
management programs for ecosystem they might be adversely impacted. For Management and Budget (OMB) and the
protection at multiple scales. many Class I area parks and wilderness requirements of the Executive Order.
We are aware that Federal land areas, FLMs have already identified the The Order defines ‘‘significant
management agencies, other Federal and resources at risk from or sensitive to air regulatory action’’ as one that is likely
State agencies, and the scientific pollution. In conjunction with this to result in a rule that may:
community have developed a effort, FLMs recently have explored the
substantial body of information related (1) Have an annual effect on the
use and setting of critical loads as a economy of $100 million or more or
to nitrogen impacts for a limited number management tool to characterize the risk
of site-specific ecosystems around the adversely affect in a material way the
from air pollution emissions and economy, a sector of the economy,
country. EPA will continue working to deposition to ecological systems on
further develop the latest scientific productivity, competition, jobs, the
Class I areas and Federal lands. (Porter, environment, public health or safety, or
research results and information to 2005.) For example, they have used
explore the critical loads approach to State, local, or tribal governments or
research on critical loads to assess communities;
better manage air resources. ecosystem risk and to inform air quality
We agree with commenters that it is (2) Create a serious inconsistency or
management decisions related to new otherwise interfere with an action taken
possible that a critical load program
could be developed by working 32 Section 165(d)(2)(B) places an affirmative
or planned by another agency;
collaboratively with States, tribes, and responsibility on FLMs to protect the AQRVs in (3) Materially alter the budgetary
FLMs to implement ‘‘pilot projects’’ in Federal Class I areas. impact of entitlements, grants, user fees,

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Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59615

or loan programs, or the rights and An agency may not conduct or of the rule. The provisions of section
obligations of recipients thereof; or sponsor, and a person is not required to 205 do not apply when they are
(4) Raise novel legal or policy issues respond to, a collection of information inconsistent with applicable law.
arising out of legal mandates, the unless it displays a currently valid OMB Moreover, section 205 allows EPA to
President’s priorities, or the principles control number. The OMB control adopt an alternative other than the least
set forth in the Executive Order. numbers for EPA’s regulations in 40 costly, most cost-effective, or least
Pursuant to the terms of Executive CFR are listed in 40 CFR part 9. burdensome alternative if the
Order 12866, it has been determined Administrator publishes with the final
that this rule is a ‘‘significant regulatory C. Regulatory Flexibility Act (RFA)
rule an explanation why that alternative
action’’ because the State planning EPA has determined that it is not was not adopted.
option in the proposal raises novel legal necessary to prepare a regulatory Before EPA establishes any regulatory
and policy issues. As such, this action flexibility analysis in connection with requirements that may significantly or
was submitted to OMB for review. this final rule. uniquely affect small governments,
Changes made in response to OMB For purposes of assessing the impacts including tribal governments, it must
suggestions or recommendations will be of today’s final rule on small entities, have developed under section 203 of the
documented in the public record. small entity is defined as: (1) A small UMRA a small government agency plan.
business as defined by the Small The plan must provide for notifying
B. Paperwork Reduction Act Business Administration’s (SBA) potentially affected small governments,
This action does not impose any new regulations at 13 CFR 121.201; (2) a enabling officials of affected small
information collection burden. Under small governmental jurisdiction that is a governments to have meaningful and
this final action, we are retaining the government of a city, county, town, timely input in the development of EPA
existing increments and regulatory school district or special district with a regulatory proposals with significant
framework of the PSD regulations for population of less than 50,000; or (3) a Federal intergovernmental mandates,
NOX. The Office of Management and small organization that is any not-for- and informing, educating, and advising
Budget (OMB) has previously approved profit enterprise which is independently small governments on compliance with
the information collection requirements owned and operated and is not the regulatory requirements.
contained in the existing regulations (40 dominant in its field. Today’s final action contains no
CFR parts 51 and 52) under the After considering the economic Federal mandates (under the regulatory
provisions of the Paperwork Reduction impacts of today’s final rule on small provisions of Title II of the UMRA) for
Act, 44 U.S.C. 3501, et seq., and has entities, EPA has concluded that this State, local, or tribal governments or the
assigned OMB control number 2060– action will not have a significant private sector. The final rule imposes no
0003, EPA ICR number 1230.17. A copy economic impact on a substantial enforceable duty on any State, local or
of the OMB-approved Information number of small entities. We are tribal governments or the private sector.
Collection Request (ICR) may be imposing no new requirements on small We are retaining existing
obtained from Susan Auby, Collection entities. We are retaining existing requirements and do not impose any
Strategies Division, U.S. Environmental regulations without change and thus new Federal mandates. New rule
Protection Agency (2822T), 1200 imposing no new requirements on small language authorizes States to adopt an
Pennsylvania Ave., NW., Washington, entities. Optionally, we allow States to alternative approach to meeting some of
DC 20460, or by calling (202) 566–1672. adopt alternative programs to relieve the the rule’s requirements, but States have
As an alternative to the existing burden of conducting specific ambient had such authority under the CAA and
increments, the State has discretion in air quality and increment analyses are not required to adopt an alternative
developing an alternative option that under the PSD program. However, approach if they choose to continue
satisfies both the requirements of the States do not meet the definition of a implementing the existing program
statutory PSD program requirements for small entity under the RFA. provisions. In any event, EPA has
NOX and the State’s air quality determined that this final rule does not
management goals. It is not possible to D. Unfunded Mandates Reform Act
contain a Federal mandate that may
determine at this time what additional Title II of the Unfunded Mandates result in expenditures of $100 million or
burdens, if any, a State alternative Reform Act of 1995 (UMRA), Pub. L. more for State, local, and tribal
program may entail. 104–4, establishes requirements for governments, in the aggregate, or in the
Burden means the total time, effort, or Federal agencies to assess the effects of private sector in any one year. Thus,
financial resources expended by persons their regulatory actions on State, local, today’s final rule is not subject to the
to generate, maintain, retain, or disclose and tribal governments and the private requirements of sections 202 and 205 of
or provide information to or for a sector. Under section 202 of the UMRA, the UMRA.
Federal agency. This includes the time EPA generally must prepare a written Because we have not required any
needed to review instructions; develop, statement, including a cost-benefit new Federal mandates, EPA has also
acquire, install, and utilize technology analysis, for proposed and final rules determined that this rule contains no
and systems for the purposes of with ‘‘Federal mandates’’ that may regulatory requirements that might
collecting, validating, and verifying result in expenditures to State, local, significantly or uniquely affect small
information, processing and and tribal governments, in the aggregate, governments.
maintaining information, and disclosing or to the private sector, of $100 million
and providing information; adjust the or more in any one year. E. Executive Order 13132—Federalism
existing ways to comply with any Before promulgating an EPA rule for Executive Order 13132, entitled
previously applicable instructions and which a written statement is needed, ‘‘Federalism’’ (64 FR 43255, August 10,
requirements; train personnel to be able section 205 of the UMRA generally 1999), requires EPA to develop an
to respond to a collection of requires EPA to identify and consider a accountable process to ensure
information; search data sources; reasonable number of regulatory ‘‘meaningful and timely input by State
complete and review the collection of alternatives and adopt the least costly, and local officials in the development of
information; and transmit or otherwise most cost-effective, or least burdensome regulatory policies that have federalism
disclose the information. alternative that achieves the objectives implications.’’ ‘‘Policies that have

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59616 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations

federalism implications’’ is defined in EPA has considered comments I. National Technology Transfer and
the Executive Order to include submitted by several tribal officials. A Advancement Act
regulations that have ‘‘substantial direct summary of the concerns raised in these
effects on the States, on the relationship comments and EPA’s response to those As noted in the February 2005
between the national government and concerns is provided in EPA’s proposal, section 12(d) of the National
the States, or on the distribution of Comment-Response Document located Technology Transfer and Advancement
power and responsibilities among the in the docket for this rule. Act of 1995 (‘‘NTTAA’’), Pub. L. 104–
various levels of government.’’ 113, 12(d) (15 U.S.C. 272 note), directs
This final rule does not have G. Executive Order 13045—Protection of EPA to use voluntary consensus
federalism implications. The rule will Children From Environmental Health standards in its regulatory activities
not have substantial direct effects on the and Safety Risks unless to do so would be inconsistent
States, on the relationship between the with applicable law or otherwise
national government and the States, or Executive Order 13045, ‘‘Protection of impractical. Voluntary consensus
on the distribution of power and Children from Environmental Health standards are technical standards (e.g.,
responsibilities among the various Risks and Safety Risks’’ (62 FR 19885, materials specifications, test methods,
levels of government, as specified in April 23, 1997), applies to any rule that: sampling procedures, and business
Executive Order 13132. If the existing (1) Is ‘‘economically significant’’ as practices) that are developed or adopted
regulations for increments are retained, defined under Executive Order 12866; by voluntary consensus standards
no new regulatory requirements will be and (2) concerns an environmental bodies. The NTTAA directs EPA to
imposed on States. Optionally, this final health or safety risk that EPA has reason provide Congress, through OMB,
action permits States to obtain relief to believe may have a disproportionate explanations when the Agency decides
from certain regulatory requirements by effect on children. If the regulatory not to use available and applicable
adopting alternative programs but does action meets both criteria, the Agency voluntary consensus standards. This
not necessarily require adoption of a must evaluate the environmental health final rule does not involve technical
new program in that a State may rely on or safety effects of the planned rule on standards. Therefore, EPA did not
a program that is already in place or that children and explain why the planned consider the use of any voluntary
is required by other EPA requirements. regulation is preferable to other consensus standards.
Direct compliance costs associated with potentially effective and reasonably
today’s rule could be incurred when feasible alternatives considered by the J. Executive Order 12898—Federal
States incorporate any changes into Agency. Actions To Address Environmental
their SIPs, but these direct compliance Justice in Minority Populations and
costs would not be significant. Thus, This final rule is not subject to the
Executive Order because it is not Low-Income Populations
Executive Order 13132 does not apply
to this final rule. economically significant as defined in Executive Order 12898 requires that
Executive Order 12866, and because the each Federal agency make achieving
F. Executive Order 13175—Consultation Agency does not have reason to believe environmental justice part of its mission
and Coordination With Indian Tribal the environmental health or safety risks
Governments by identifying and addressing, as
of NOX addressed by this action present appropriate, disproportionate high and
Executive Order 13175, entitled a disproportionate risk to children. The adverse human health or environmental
‘‘Consultation and Coordination with final rule retains existing regulations effects of its programs, policies, and
Indian Tribal Governments’’ (65 FR and does not impose any new regulatory activities on minorities and low-income
67249, November 9, 2000), requires EPA requirements. States may obtain relief populations. The EPA concluded that
to develop an accountable process to from certain regulatory requirements by this final rule should not raise any
ensure ‘‘meaningful and timely input by choosing to adopt alternative programs. environmental justice issues.
tribal officials in the development of
regulatory policies that have tribal H. Executive Order 13211—Actions K. Congressional Review Act
implications.’’ This final rule does not That Significantly Affect Energy Supply,
have tribal implications, as specified in Distribution, or Use The Congressional Review Act, 5
Executive Order 13175. No tribes are U.S.C. 801 et seq., as added by the Small
This rule is not a ‘‘significant energy Business Regulatory Enforcement
currently implementing the PSD
program. Furthermore, this final rule action’’ as defined in Executive Order Fairness Act of 1996, generally provides
does not impose any new regulatory 13211, ‘‘Actions Concerning Regulations that before a rule may take effect, the
restrictions. In this final action, EPA is That Significantly Affect Energy Supply, agency promulgating the rule must
retaining the existing NO2 increments Distribution, or Use’’ (66 FR 28355, May submit a rule report, which includes a
and making explicit that States 22, 2001), because it is not likely to have copy of the rule, to each House of the
implementing the PSD program have the a significant adverse effect on the Congress and to the Comptroller General
option to seek EPA approval of an supply, distribution, or use of energy. of the United States. EPA will submit a
alternative program that meets the The final rule retains existing report containing this rule and other
objectives of the PSD program without regulations and does not impose any required information to the U.S. Senate,
using increments. At the time it reviews new regulatory requirements. States the U.S. House of Representatives, and
any alternative PSD program for NOX may obtain relief from certain regulatory the Comptroller General of the United
submitted by a State, EPA will assess requirements by choosing to adopt States prior to publication of the rule in
whether such program has tribal alternative programs. This option does the Federal Register. A major rule
implications. However, the final action not impose any new requirements but cannot take effect until 60 days after it
we are taking today does not have a rather allows States to obtain regulatory is published in the Federal Register.
substantial direct effect on tribes. Thus, flexibility by implementing alternative This action is not a ‘‘major rule’’ as
Executive Order 13175 does not apply requirements. Further, we have defined by 5 U.S.C. 804(2). Therefore,
to this final rule. Although Executive concluded that this rule is not likely to this action will be effective November
Order 13175 does not apply to this rule, have any adverse energy effects. 14, 2005.

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Allen, E.B., P.E. Padgett, A. Bytenerowicz, R. 327–336. v. 55, no. 7, p. 603–612.
Minnich, 1998. ‘‘Nitrogen Deposition Fenn, M.E., M.A. Poth, J.D. Aber, J.S. Baron, Taylor, G.E., D.W. Johnson, ‘‘Air Pollution
Effects on Coastal Sage Vegetation of B.T. Bormann, D.W. Johnson, A.D. and Forest Ecosystems: A Regional to
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Baron, J.S., H.M. Rueth, A.M. Wolfe, K.R. Baron, S. Grossman-Clarke, D. Hope, Nitrogen. (3 volumes). Office of Air
Nydick, E.J. Allstott, J.T. Minear, and B. D.A. Jaffe, S. Copeland, L. Geiser, H.M. Quality Planning and Standards. EPA–
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Butler, T.J., G.E. Likens, and B.J.B. Stunder, NOXPaper2004.pdf www.epa.gov/ttn/naaqs/standards/nox/
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www.sciencedirect.com/science/journal/ (2003) vol. 53, no. 4, p. 1–13. Docket No. AR–95–01.
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Dahlgreen R.A., J.M. Holloway, ‘‘Geologic Precipitation Chemistry in the United www.epa.gov/ttn/naaqs/standards/pm/
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Butler, C.S. Cronan, C. Eagar, K.F. htm/sub2.html Requesters.’’ GAO/RCED–00–47, March
Lambert, G.E. Likens, J.L. Stoddard, and National Oceanic and Atmospheric 2000. http://www.gao.gov/archive/2000/
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vol. 51, no. 3 (p. 180–198), March 2001. 2004. College of Environmental Science and
Driscoll, C.T., G.B. Lawrence, A.J. Bulger, T.J. National Science and Technology Council. Forestry. http://www.esf.edu/resorg/
Butler, C.S. Cronan, C. Eagar, K.F. (1998) NAPAP Biennial Report to rooseveltwildlife/Research/Al/Al.htm;
Lambert, G.E. Likens, J.L. Stoddard, and Congress: An Integrated Assessment. July 28, 2004.
K.C. Weathers, ‘‘Acid Rain Revisited: National Acid Precipitation Assessment Williams M., et al., ‘‘Critical Loads For
Advances in Scientific Understanding Program. May 1998. Inorganic Nitrogen Deposition in the
Since the Passage of the 1970 and 1990 Nilles M., ‘‘Status and Trends in Wet Colorado Front Range, USA’’ Ecological
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Brook Research Foundation Science United States.’’ Office of Water Quality,
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Driscoll, C.T., K.M. Driscoll, M.J. Mitchell, acidrain/Deposition_trends.pdf
and D.J. Raynal, ‘‘Effects of Acidic Porter E., et al., ‘‘Protecting Resources on Environmental protection,
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59618 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations

Intergovernmental relations, Nitrogen Maximum Maximum


oxides, Ozone, Particulate matter, allowable allowable
Reporting and recordkeeping increase increase
Pollutant Pollutant
requirements. (micrograms (micrograms
per cubic per cubic
Dated: September 29, 2005. meter) meter)
Stephen L. Johnson,
Class I PM10, 24-hr maximum ... 60
Administrator.
Sulfur dioxide:
■ For the reasons set out in the Particulate matter: Annual arithmetic mean 40
preamble, title 40, chapter I of the Code PM10, annual arithmetic 24-hr maximum ............. 182
of Federal Regulations is amended as mean .......................... 4 3-hr maximum ............... 700
follows: PM10, 24-hr maximum ... 8 Nitrogen dioxide:
Sulfur dioxide:
Annual arithmetic mean 50
PART 51—[AMENDED] Annual arithmetic mean 2
24-hr maximum ............. 5
■ 1. The authority citation for part 51 3-hr maximum ............... 25 For any period other than an annual
continues to read as follows: Nitrogen dioxide: period, the applicable maximum
Authority: 23 U.S.C. 101; 42 U.S.C. 7401– Annual arithmetic mean 2.5 allowable increase may be exceeded
7671 q. during one such period per year at any
Class II
one location.
Subpart I—[Amended]
Particulate matter: (2) Where the State can demonstrate
■ 2. Section 51.166 is amended by PM10, annual arithmetic that it has alternative measures in its
revising paragraph (c) to read as follows: mean .......................... 17 plan other than maximum allowable
PM10, 24-hr maximum ... 30 increases that satisfy the requirements
§ 51.166 Prevention of significant Sulfur dioxide: in sections 166(c) and 166(d) of the
deterioration of air quality. Annual arithmetic mean 20
Clean Air Act for nitrogen oxides, the
* * * * * 24-hr maximum ............. 91
3-hr maximum ............... 512
requirements for maximum allowable
(c) Ambient air increments and other increases for nitrogen dioxide under
measures. (1) The plan shall contain Nitrogen dioxide:
emission limitations and such other Annual arithmetic mean 25 paragraph (c)(1) of this section shall not
apply upon approval of the plan by the
measures as may be necessary to assure Class III Administrator.
that in areas designated as Class I, II, or
III, increases in pollutant concentrations Particulate matter:
* * * * *
over the baseline concentration shall be PM10, annual arithmetic [FR Doc. 05–20110 Filed 10–11–05; 8:45 am]
limited to the following: mean .......................... 34 BILLING CODE 6560–50–P

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