[Federal Register Volume 74, Number 90 (Tuesday, May 12, 2009)]
[Proposed Rules]
[Pages 22147-22151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11107]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2009-0021; FRL-8766-3]


Stay of Clean Air Interstate Rule for Minnesota; Stay of Federal 
Implementation Plan To Reduce Interstate Transport of Fine Particulate 
Matter and Ozone for Minnesota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to stay the effectiveness, in the State of 
Minnesota only, of two final rules issued under section 110 of the 
Clean Air Act (CAA) related to the interstate transport of pollutants. 
On May 12, 2005, EPA issued the Clean Air Interstate Rule (CAIR). In 
CAIR, EPA required Minnesota and other states to submit State 
Implementation Plan (SIP) revisions to limit nitrogen oxides 
(NOX) and sulfur dioxide (SO2) emissions for the 
purpose of reducing the contributions these emissions make to 
particulate matter and ozone transport across state boundaries in the 
eastern half of the U.S. On April 28, 2006, EPA published Federal 
Implementation Plans (CAIR FIPs) containing requirements to serve as a 
backstop until replaced by an approved SIP.
    Subsequently, the U.S. Court of Appeals for the D.C. Circuit held 
that EPA had not properly addressed possible errors in the analysis 
supporting EPA's decision that Minnesota should be included in the CAIR 
region for fine particulate matter (PM2.5). EPA is proposing 
to stay the effectiveness of CAIR and the CAIR FIP with respect to 
sources in Minnesota only, while EPA conducts a notice-and-comment 
rulemaking addressing this issue and its impact on the inclusion of 
Minnesota in CAIR.

DATES: Comments must be received on or before June 11, 2009. If anyone 
contacts us requesting a public hearing by May 22, 2009, we will hold a 
public hearing approximately 30 days after publication in the Federal 
Register. Additional information about the hearing would be published 
in a subsequent Federal Register notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0021, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected]. Attention Docket ID No. 
EPA-HQ-OAR-2009-0021.
     Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2009-0021.
     Mail: EPA Docket Center, EPA West (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2009-0021, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2009-0021, Environmental Protection Agency, 
1301 Constitution Avenue, NW., Room 3334; Washington, DC. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0021. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or e-mail. 
The 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 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 be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the EPA Docket Center EPA/DC, 
EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the EPA 
Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Tim Smith, Air Quality Planning 
Division,

[[Page 22148]]

Office of Air Quality Planning and Standards, Mail Code C539-04, 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number: 919-541-4718; fax number: 919-541-0824; e-mail 
address: [email protected].
    To request a public hearing, please contact Pam Long, Air Quality 
Planning Division, Office of Air Quality Planning and Standards, Mail 
Code C504-03, Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711; telephone number: 919-541-0641; fax number: 919-
541-5509 no later than May 22, 2009 to request a hearing.

SUPPLEMENTARY INFORMATION: 

Outline

I. Background
II. What is the Scope of this Proposal?
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Background

    On May 12, 2005, EPA issued the CAIR. (70 FR 25162; May 12, 2005). 
In this rule, EPA found that 28 states and DC contribute significantly 
to nonattainment of the national ambient air quality standards (NAAQS) 
for fine particles and/or ozone in downwind states. The CAIR rule 
required these upwind states to revise their SIPs to include control 
measures to reduce emissions of SO2 and/or NOX. 
One of the states included in the CAIR region for fine particles was 
the State of Minnesota. Minnesota was thus required to reduce annual 
SO2 and annual NOX emissions in accordance with 
the requirements of the rule. Minnesota was not included in the CAIR 
ozone region.
    On April 28, 2006, EPA issued the CAIR FIP rule. (71 FR 25330; 
April 28 2006). In this rule, EPA promulgated FIPs to implement the 
emission reduction requirements of the CAIR in all states covered by 
CAIR. The Agency issued the FIP requirements to provide a federal 
backstop for CAIR during the time period necessary for states to 
develop SIPs. EPA decided to adopt, as the FIP for each state in the 
CAIR region (including Minnesota), the SIP model trading programs in 
the final CAIR, modified slightly to allow for federal instead of state 
implementation.
    A number of petitioners brought legal challenges to various aspects 
of the CAIR, and of the CAIR FIP rule, in the U.S. Court of Appeals for 
the D.C. Circuit. Among the parties challenging the rule was Minnesota 
Power, an electric utility operating in Minnesota, who argued that EPA 
erred in including the State of Minnesota in the CAIR region for 
PM2.5. On July 11, 2008, in North Carolina v. EPA, 531 F.3d 
896, 926-30 (D .C . Cir. 2008), the Court ruled on these challenges. 
The Court granted Minnesota Power's petition because it concluded that 
EPA had failed to fully address alleged errors in its analysis for the 
State of Minnesota. The Court also noted that in EPA's CAIR analysis, 
Minnesota's contribution to PM2.5 was 0.20 [mu]g/m\3\, the 
exact minimum level for inclusion.
    On September 24, 2008, EPA filed a petition for rehearing with the 
D.C. Circuit. This petition sought rehearing of a number of the Court's 
findings, but did not seek rehearing of the findings regarding 
Minnesota. On October 31, 2008, EPA sent a letter to Minnesota Power 
indicating its intent to stay the effectiveness of CAIR with respect to 
sources located in the State of Minnesota. This letter was also 
submitted to the Court during briefing on the petitions for rehearing.
    On December 23, 2008, the D.C. Circuit granted EPA's petition for 
rehearing only to the extent it remanded the case without vacatur. This 
decision will allow CAIR to remain in effect until EPA develops a 
replacement rule consistent with the July 11, 2008 opinion.

II. What is the Scope of this Proposal?

    EPA intends to conduct further rulemaking[s] in response to the DC 
Circuit Court's remand of the CAIR rule. As part of that process, the 
Agency will evaluate the claimed errors in its contribution analysis 
for the State of Minnesota, and will provide notice-and-comment 
opportunity to the general public on our evaluation. Accordingly, in 
this action, EPA is proposing to stay the effectiveness of CAIR and the 
CAIR FIP with respect to the State of Minnesota and sources in the 
State of Minnesota only, during the pendency of the notice-and-comment 
rulemaking proceedings that will address whether Minnesota should be 
included in the CAIR region for PM2.5.
    EPA notes that allocations of CAIR NOX allowances for 
existing Minnesota sources for 2009 have already been recorded in the 
allowance tracking system under the annual NOX trading 
program in the CAIR FIP. EPA believes that, if the effectiveness of 
CAIR and the CAIR FIP were stayed as proposed with respect to Minnesota 
and sources in Minnesota, then all allowance allocations already 
recorded for Minnesota sources in order to implement the CAIR FIP 
should be removed from the annual NOX trading program.
    Under the proposed stay, Minnesota sources would not need to use 
their recorded allowance allocations to authorize their annual 
NOX emissions. Unless these allowances were removed from the 
trading program, the full amount of these allowances could be traded 
for use by non-Minnesota sources to authorize their own annual 
NOX emissions. This would increase the total amount of 
allowances available for use by sources in the states that, under the 
proposed stay, would continue to be subject to CAIR and/or the CAIR FIP 
(i.e., the CAIR region except Minnesota). As a result, the total amount 
of allowances available for sources in these states would exceed the 
sum of the annual NOX trading budgets under CAIR and the 
CAIR FIP for these states.
    In order to preserve, under the proposed stay, the annual 
NOX emission reductions that were intended to be achieved 
under CAIR and the CAIR FIP and were reflected in the state annual 
NOX trading budgets under those rules, EPA proposes to 
require each Minnesota source with recorded allowance allocations under 
the annual NOX trading program to hold an amount of 
allowances issued for the same year as the recorded allowances (e.g., 
2009) equal to the amount of the recorded allocations. EPA also 
proposes that the Administrator deduct, and thereby retire, these 
required allowance holdings and that no additional allowance 
allocations from the state annual NOx trading budget for 
Minnesota be recorded.
    EPA understands that at least one Minnesota source has traded some 
of its recorded allowance allocations. However, EPA believes that the 
most reasonable approach for removing Minnesota sources' recorded 
allowance allocations from the trading program is to require these 
sources to provide to the Administrator for deduction the allowances 
that must be removed. Each Minnesota source would accomplish this by 
continuing to hold allocated

[[Page 22149]]

allowances and, to the extent necessary to replace allocated allowances 
that it traded, obtaining other allowances issued for the same year as 
its traded allowances. Because all CAIR NOX allowances 
issued for a given year (e.g., 2009) under the annual NOX 
trading program in CAIR and the CAIR FIP are fungible, deduction of the 
proper amount of CAIR NOX allowances issued for that year 
has the desired effect whether the deducted allowances are Minnesota 
sources' originally allocated allowances or allowances that were 
obtained from other sources. EPA believes that a deadline of June 30, 
2009 for Minnesota sources to hold the required allowances for 
deduction would provide sufficient time for Minnesota sources to obtain 
the proper amount of CAIR NOX allowances. While EPA's 
preference is to remove these allowances from the trading program as 
quickly as possible, the Agency will consider a later deadline if 
public comments indicate that an earlier deadline places an 
unreasonable burden on Minnesota sources who must re-acquire traded 
allowances.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320(b). This action does not impose any new 
obligations or enforceable duties on any state, local or tribal 
governments or the private sector. Therefore, it does not impose an 
information collection burden.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (URMA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any State local or 
tribal governments or the private sector. This action simply does not 
impose any new obligations or enforceable duties on any state, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of URMA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action does 
not impose any new obligations or enforceable duties on any small 
governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This rule does not impose any new 
obligations or enforceable duties on any state, local or tribal 
governments or the private sector. Thus, Executive Order 13132 does not 
apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA specifically solicits comment on this proposed rule 
from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have Tribal implications as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have 
substantial direct effects on Tribal governments, on the relationship 
between the Federal government and Indian Tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian Tribes, as specified in Executive Order 13175. 
This action does not significantly or uniquely affect the communities 
of Indian Tribal governments. As discussed above, this action imposes 
no new requirements that would impose compliance burdens. Thus, 
Executive Order 13175 does not apply to this action.
    EPA specifically solicits additional comment on this proposed 
action from Tribal officials.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it imposes no new requirements.

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

[[Page 22150]]

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898--Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of its programs, 
policies, and activities on minorities and low-income populations in 
the United States.
    The EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
impose any regulatory requirements.

List of Subjects

40 CFR Part 51

    Administrative practice and procedure, Air pollution control, 
Environmental protection, Intergovernmental relations, Nitrogen oxides, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur dioxide.

40 CFR Part 52

    Administrative practice and procedure, Air pollution control, 
Environmental protection, Intergovernmental relations, Nitrogen oxides, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur dioxide.

    Dated: May 6, 2009.
Lisa P. Jackson,
Administrator.
    For the reasons set forth in the preamble, parts 51 and 52 of 
chapter I of title 40 of the Code of Federal Regulations are proposed 
to be amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

    1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

    2. Section 51.123 is amended by adding a new paragraph (a)(3) as 
follows:


Sec.  51.123  Findings and requirements for submission of State 
implementation plan revisions relating to emissions of oxides of 
nitrogen pursuant to the Clean Air Interstate Rule.

    (a)(1) * * *
    (3) Notwithstanding the other provisions of this section, the 
effectiveness of such provisions as they relate to the State of 
Minnesota is stayed as of [the effective date of the final rule].
* * * * *
    3. Section 51.124 is amended by:
    a. Redesignating paragraph (a) as paragraph (a)(1); and
    b. Adding a new paragraph (a)(2) as follows:


Sec.  51.124  Findings and requirements for submission of State 
implementation plan revisions relating to emissions of sulfur dioxide 
pursuant to the Clean Air Interstate Rule.

    (a)(1) * * *
    (2) Notwithstanding the other provisions of this section, the 
effectiveness of such provisions as they relate to the State of 
Minnesota is stayed as of [the effective date of the final rule].
* * * * *
    4. Section 51.125 is amended by adding a new paragraph (a)(3) as 
follows:


Sec.  51.125  Emissions reporting requirements for SIP revisions 
relating to budgets for SO2 and NOX emissions.

    (a) * * *
    (3) Notwithstanding the other provisions of this section, the 
effectiveness of such provisions as they relate to the State of 
Minnesota is stayed as of [the effective date of the final rule].
* * * * *

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

    5. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401, et seq.

    6. Section 52.35 is amended by adding a new paragraph (e) as 
follows:


Sec.  52.35  What are the requirements of the Federal Implementation 
Plans (FIPs) for the Clean Air Interstate Rule (CAIR) relating to 
emissions of nitrogen oxides?

* * * * *
    (e) Notwithstanding paragraphs (a) and (b) of this section, the 
effectiveness of such paragraph as it relates to sources in the State 
of Minnesota is stayed as of [the effective date of the final rule], 
except as provided in Sec.  52.1240(b)(1).
    7. Section 52.36 is amended by adding a new paragraph (d) as 
follows:


Sec.  52.36  What are the requirements of the Federal Implementation 
Plans (FIPs) for the Clean Air Interstate Rule (CAIR) relating to 
emissions of sulfur dioxide?

* * * * *
    (d) Notwithstanding paragraph (a) of this section, the 
effectiveness of such paragraph as it relates to sources in the State 
of Minnesota is stayed as of [the effective date of the final rule].
    8. Section 52.1240 is amended by adding a new paragraph (b) as 
follows:


Sec.  52.1240  Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of nitrogen oxides?

* * * * *
    (b) Notwithstanding paragraph (a) of this section,
    (1) The effectiveness of such paragraph as it relates to sources in 
the State of Minnesota is stayed as of [the effective date of the final 
rule], except that the owner and operator of each such source in whose 
compliance account any allocation of CAIR NOX allowances was 
recorded under the Federal CAIR NOX Annual Trading Program 
in part 97 of this chapter shall hold in that compliance account, as of 
June 30, 2009 and with regard to each such recorded allocation, CAIR 
NOX allowances that are usable in such trading program, 
issued for the same year as the recorded allocation, and in the same 
amount as the recorded allocation. The owner and operator shall hold 
such allowances for the purpose of deduction by the Administrator under 
paragraph (b)(2) of this section;
    (2) After June 30, 2009, the Administrator will deduct from the 
compliance account of each source in the State of Minnesota any CAIR 
NOX allowances required to be held in that

[[Page 22151]]

compliance account under paragraph (b)(1) of this section.
    (3) Starting no later than [the effective date of the final rule], 
the Administrator will not record any allocation of CAIR NOX 
allowances in the State trading budget for Minnesota for any year.
    9. Section 52.1241 is amended by:
    a. Redesignating the introductory text as paragraph (a); and
    b. Adding a new paragraph (b) as follows:


Sec.  52.1241  Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of sulfur dioxide?

* * * * *
    (b) Notwithstanding paragraph (a) of this section, the 
effectiveness of such paragraph as it relates to sources in the State 
of Minnesota is stayed as of [the effective date of the final rule].

[FR Doc. E9-11107 Filed 5-11-09; 8:45 am]
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