[Federal Register Volume 75, Number 39 (Monday, March 1, 2010)]
[Rules and Regulations]
[Pages 9103-9105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4088]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2009-0964; FRL-9116-8]
Approval and Promulgation of Air Quality Implementation Plans;
Illinois; NOX Budget Trading Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a revision to the Illinois State
Implementation Plan (SIP) that would terminate the provisions of the
Nitrogen Oxides (NOX) Budget Trading Program that apply to
electric generating units. EPA is no longer operating the
NOX Budget Trading Program as a compliance option under the
NOX SIP Call. These sources are now subject to provisions in
a newer set of approved Illinois rules that address EPA's Clean Air
Interstate Rule (CAIR). For these reasons, the sunset of the
NOX Budget Trading Program for these sources merely
deactivates duplicative rule language.
DATES: This direct final rule will be effective April 30, 2010, unless
EPA receives adverse comments by March
[[Page 9104]]
31, 2010. If adverse comments are received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R05-OAR-2009-0964 by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (312) 385-5501.
4. Mail: Genevieve Damico, Acting Chief, Criteria Pollutant
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Genevieve Damico, Acting Chief, Criteria
Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0964. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters and any form of encryption and should be
free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the
Air and Radiation Division, U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, IL 60604. This facility
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
Federal holidays. We recommend that you telephone John Summerhays,
Environmental Scientist, at (312) 886-6067, before visiting the Region
5 office.
FOR FURTHER INFORMATION CONTACT: John Summerhays, (312) 886-6067, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
This supplementary information section is arranged as follows:
I. Review of State's Submittal
II. Final Action
III. Statutory and Executive Order Reviews
I. Review of State's Submittal
On December 7, 2009, Illinois submitted a rule revision to EPA for
the sunset of 35 Illinois Administrative Code (IAC) 217 Subpart W,
which sets requirements for electric generating units (EGUs) in the
NOX Budget Trading Program. These sources are now subject to
requirements of rules adopted pursuant to CAIR (in 35 IAC 225) and
approved by EPA on October 16, 2007, which supersede 35 IAC 217 Subpart
W.
Illinois' revision would add 35 IAC 217.751, the full text of which
is:
The provisions of this Subpart W shall not apply for any control
period in 2009 or thereafter. Noncompliance with the provisions of
this Subpart that occurred prior to 2009 is subject to the
applicable provisions of this Subpart.
The NOX Budget Trading Program was mandated under a rule
commonly known as the NOX SIP Call, published on October 27,
1998, at 63 FR 57356, with subsequent amendments. Subsequently, EPA
promulgated a similar set of requirements in CAIR, published May 12,
2005, at 70 FR 25162. Illinois adopted and submitted rules in 35 IAC
225 that addressed CAIR which, among other provisions, required EGUs to
participate in the CAIR NOX Ozone Season Trading Program.
This latter program has largely superseded the NOX Budget
Trading Program. Indeed, EPA no longer offers the NOX Budget
Trading Program as an option to meet the requirements of the
NOX SIP Call, and EPA encourages states to clarify their
regulatory requirements by terminating provisions established with the
NOX Budget Trading Program that have been superseded by
provisions established pursuant to CAIR.\1\ EPA approved the pertinent
Illinois rules of 35 IAC 225 on October 16, 2007, at 72 FR 58528. These
rules fully supersede the requirements applicable to EGUs in 35 IAC 217
Subpart W with respect to ozone seasons of 2009 and beyond, and so EPA
finds that the sunset of the Subpart W requirements (except to the
extent that any enforcement actions for noncompliance prior to 2009
remain pending) is fully approvable.
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\1\ EPA was sued by a number of parties on various aspects of
CAIR, and on July 11, 2008, the U.S. Court of Appeals for the
District of Columbia Circuit issued its decision to vacate and
remand both CAIR and the associated CAIR FIPs in their entirety.
North Carolina v. EPA, 531 F.3d 836 (D.C. Cir. Jul. 11, 2008).
However, in response to EPA's petition for rehearing, the Court
issued an order remanding CAIR to EPA without vacating either CAIR
or the CAIR FIPs. North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir.
Dec. 23, 2008). The Court thereby left CAIR in place in order to
``temporarily preserve the environmental values covered by CAIR''
until EPA replaces it with a rule consistent with the Court's
opinion. Id. at 1178. The Court directed EPA to ``remedy CAIR's
flaws'' consistent with its July 11, 2008, opinion, but declined to
impose a schedule on EPA for completing that action. Id.
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Under the NOX Budget Trading Program, an excess
emissions penalty assessed for the 2008/2009 control periods requires
the deduction of allowances from a subsequent control period.
Generally, no NOX Budget Trading Program allowances will be
allocated for the 2009 control period and thereafter. Therefore, if any
such excess emissions penalty is to be imposed, the Administrator will
deduct CAIR NOX Ozone Season allowances allocated for a
subsequent control period.
II. Final Action
EPA is approving 35 IAC 217.751. This paragraph terminates the
provisions of 35 IAC 217 Subpart W, which sets requirements for EGUs
pursuant to the NOX SIP Call, since these requirements have
been
[[Page 9105]]
superseded by requirements pursuant to CAIR. The sunset of these
provisions takes effect with the 2009 ozone season, except that the
provisions remain in effect for purposes of addressing noncompliance
with Subpart W prior to 2009.
We are publishing this action without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the state plan if relevant adverse
written comments are filed. This rule will be effective April 30, 2010
without further notice unless we receive relevant adverse written
comments by March 31, 2010. If we receive such comments, we will
withdraw this action before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on the proposed action. EPA will not institute a second comment
period. Any parties interested in commenting on this action should do
so at this time. If we do not receive any comments, this action will be
effective April 30, 2010.
III. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Clean Air Act
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by April 30, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. Parties with objections to this direct final
rule are encouraged to file a comment in response to the parallel
notice of proposed rulemaking for this action published in the proposed
rules section of today's Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: February 10, 2010.
Walter W. Kovalick, Jr.,
Acting Regional Administrator, Region 5.
0
For the reasons stated in the preamble, part 52, chapter I, of title 40
of the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart O--Illinois
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2. Section 52.740 is amended by adding paragraph (c)(185), to read as
follows:
Sec. 52.720 Identification of plan.
* * * * *
(c) * * *
(185) On December 7, 2009, Illinois submitted a rule for the sunset
of the provisions of 35 IAC 217 Subpart W, regulating electric
generating unit participation in the NOX Budget Trading
Program, since these provisions have been superseded by provisions
established pursuant to the Clean Air Interstate Rule.
(i) Incorporation by reference. The Illinois rule at 35 IAC
217.751, entitled ``Sunset Provisions,'' submitted on December 7, 2009,
effective on November 2, 2009, is incorporated by reference.
[FR Doc. 2010-4088 Filed 2-26-10; 8:45 am]
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