[Federal Register Volume 76, Number 40 (Tuesday, March 1, 2011)]
[Rules and Regulations]
[Pages 11082-11083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4373]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2006-0976; FRL-9272-1]
Approval and Promulgation of Air Quality Implementation Plans;
Ohio; Oxides of Nitrogen Budget Trading Program; Technical Amendment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to remove codification of a State
Implementation Plan (SIP) approval vacated by the U.S. Court of Appeals
for the Sixth Circuit in a decision dated June 5, 2009. This relates to
Ohio rule revisions concerning 240 allowances under the Nitrogen Oxides
Budget Trading Program added to the SIP by EPA rulemaking dated
February 13, 2008. This final rule conforms the codification of the SIP
to the decision by the U.S. Court of Appeals for the Sixth Circuit in
Buckeye Power, Inc. v. EPA (6th Cir., No. 08-3399, June 5, 2009).
DATES: This final rule is effective on March 1, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2006-0976. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, i.e., Confidential Business
Information (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 through www.regulations.gov or in hard copy at the
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
Federal holidays. We recommend that you telephone Anthony Maietta,
Environmental Protection Specialist, at (312) 353-8777 before visiting
the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Anthony Maietta, Environmental
Protection Specialist, Control Strategies Section, Air Programs Branch
(AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 353-8777,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. Background Information
II. What action is EPA taking?
III. Statutory and Executive Order Reviews
I. Background information
On October 11, 2006, the Ohio Environmental Protection Agency sent
EPA a letter requesting, among other actions, that EPA approve rule
revisions
[[Page 11083]]
to withdraw and permanently retire 240 oxides of nitrogen
(NOX) allowances from the State's 2005 new source allowance
set aside under the NOX Budget Trading Program. On February
13, 2008 (73 FR 8197), EPA approved the State's rule revisions, in Ohio
Administrative Code (OAC) rule 3745-14-05, into the Ohio state
implementation plan (SIP). EPA was subsequently sued on our action, and
on June 5, 2009, the U.S. Court of Appeals for the Sixth Circuit
vacated our February 13, 2008 rulemaking. As a result, we are amending
the codification of the SIP in the Code of Federal Regulations to
reflect the court's decision. Because our prior rulemaking was vacated
by the U.S. Court of Appeals for the Sixth Circuit, our action today is
merely a ministerial action to reflect the court's decision, which
imposes no requirements or costs. Therefore, under 5 U.S.C.
553(b)(3)(B), notice and public comment is unnecessary. For similar
reasons, EPA has good cause to waive the 30 day delayed effective date
under 5 U.S.C. 553(d)(3). This rule is effective upon publication in
the Federal Register.
II. What action is EPA taking?
EPA is revising the codification of the Ohio SIP by removing a
reference to revisions to OAC 3745-14-05 that were previously
incorporated into the Ohio SIP at 40 CFR 52.1870(c)(142). EPA had
incorporated these revisions to OAC 3745-14-05 into Ohio's SIP in
rulemaking dated February 13, 2008 (73 FR 8197), but the U.S. Court of
Appeals for the Sixth Circuit subsequently vacated this action.
Therefore, in this action, we are removing and reserving the pertinent
paragraph from the Code of Federal Regulations. Reserving this
paragraph is a technical change to the codification of the SIP. This
action does not alter any other Ohio SIP rulemaking actions, and Ohio
is not obligated to take any further action as a result of this action.
III. Statutory and Executive Order Reviews
This action merely revises the Code of Federal Regulations to
reflect the effect of a federal court order and it does not impose any
requirements. 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 May 2, 2011. 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. 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, Intergovernmental relations, Oxides of Nitrogen, Oxides of
Nitrogen Budget Trading Program.
Dated: February 14, 2011.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart KK--Ohio
Sec. 52.1870 [Amended]
0
2. Section 52.1870 is amended by removing and reserving paragraph
(c)(142).
[FR Doc. 2011-4373 Filed 2-28-11; 8:45 am]
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