[Federal Register Volume 78, Number 220 (Thursday, November 14, 2013)]
[Rules and Regulations]
[Pages 68367-68370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27142]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2010-0997; FRL-9901- 38-Region 5]


Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; Ohio NOX SIP Call Rule Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On November 15, 2010, Ohio EPA submitted to EPA revisions to 
Ohio OAC 3745-14. EPA is approving these revisions under the Clean Air 
Act, which allows for Ohio's Clean Air Interstate Rule (CAIR) 
NOX Ozone Season Trading Program rules to supersede Ohio's 
nitrogen oxides (NOX) State Implementation Plan (SIP) Call 
Budget Trading Program rules, but leave other requirements of the 
NOX SIP Call in place for units not covered by CAIR.

DATES: This rule is effective January 13, 2014, unless EPA receives 
adverse comments by December 16, 2013. 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 No. EPA-R05-
OAR-2010-0997, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (312) 408-2279.
    4. Mail: Douglas Aburano, Chief, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

[[Page 68368]]

    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and 
Maintenance 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-
2010-0997. 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 email. 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 email comment 
directly to EPA without going through www.regulations.gov your email 
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, any form of 
encryption, and be free of any defects or viruses.
    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 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 Sarah Arra, Environmental Scientist, at 
(312) 886-9401 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-9401, [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
II. Analysis of Ohio's SIP Revisions
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Background

    On October 27, 1998 (63 FR 57356), EPA published the ``Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone,'' commonly referred to as the NOX SIP 
Call. Under the NOX SIP Call, 22 states and the District of 
Columbia, including Ohio, were required to submit plans reducing 
NOX emissions to reduce ozone transport throughout the 
eastern half of the United States. The obligations of the rule could be 
met through a cap and trade program for NOX emissions 
(referred to as the NOX Budget Trading Program) for large 
electric generating units (EGUs) and other large boilers and turbines 
(non-EGUs), along with controls on cement kilns and large internal 
combustion engines. Under the NOX SIP Call, states have 
flexibility in determining where NOX emission reductions are 
achieved and can choose other ways to comply. For the most part, states 
found that EGUs and other large industrial boilers, cement kilns, and 
internal combustion engines were the most cost-effective sources for 
NOX emissions reductions.
    On May 12, 2005 (70 CFR 25162), EPA published the ``Rule to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone,'' commonly 
known as the Clean Air Interstate Rule (CAIR). This rule required 28 
states and the District of Columbia to submit plans reducing 
NOX and sulfur dioxide (SO2) emissions to reduce 
the interstate transport of ozone and fine particulates. Each state 
generally has separate budgets for ozone season NOX, annual 
NOX, and annual SO2 emissions. For each covered 
pollutant, the state must achieve the required emission reductions 
either by requiring EGUs (and large non-EGUs in the case of ozone 
season NOX) to participate in an EPA-administered interstate 
cap and trade system that caps emissions in two stages, or by meeting 
an individual state emissions budget through measures of the state's 
choosing. CAIR includes a NOX Ozone Season Trading Program 
that supersedes the NOx Budget Trading Program. States subject to both 
the NOX SIP Call and CAIR's ozone season NOX 
requirements (including Ohio) could choose to participate in the CAIR 
NOX Ozone Season Trading Program and in so doing satisfy the 
requirements of the NOX SIP Call with regard to EGUs and 
large non-EGUs. In 2008, the D.C. Circuit Court of Appeals remanded 
CAIR to EPA but left the rule in place pending its replacement. North 
Carolina v. EPA, 531 F.3d 896 (D.C. Cir.), modified, 550 F.3d 1176 
(D.C. Cir. 2008).
    In response to the remand of CAIR, on August 8, 2011 (76 FR 48208), 
EPA published the ``Federal Implementation Plans: Interstate Transport 
of Fine Particulate Matter and Ozone and Correction of SIP Approvals,'' 
commonly known as the Cross-State Air Pollution Rule (CSAPR). CSAPR 
addresses interstate transport of ozone and fine particulates by 
setting state budgets for 28 states, including Ohio, for ozone season 
NOX, annual NOX, and annual SO2 
emissions. CSAPR also establishes emissions trading programs that would 
replace the CAIR emissions trading programs. On August 21, 2012, the 
D.C. Circuit Court of Appeals vacated CSAPR, and ordered EPA to 
continue implementing CAIR in the interim. On June 24, 2013, the U.S. 
Supreme Court granted EPA's petition for certiorari and agreed to 
review the decision by the D.C. Circuit Court. EME Homer City 
Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 81 
U.S.L.W. 3702 (U.S. June 24, 2013) (No. 12-1182). In the meantime, and 
unless the EME Homer City decision is reversed or otherwise modified by 
the Supreme Court, CAIR remains in place and EPA intends to act in 
accordance with the D.C. Circuit opinion in EME Homer City.

II. Analysis of Ohio's SIP Revisions

    On November 15, 2010, Ohio EPA submitted to EPA revisions to Ohio 
OAC 3745-14, the chapter containing Ohio's rules for the NOX 
SIP Call. The revisions were specifically in sections 3745-14-01 and 
3745-14-06, and allow

[[Page 68369]]

for Ohio's CAIR NOX Ozone Season Trading Program rules to 
supersede Ohio's NOX Budget Trading Program rules. Although 
Ohio submitted these revisions before the promulgation of CSAPR, the 
revisions are still relevant given the continuing implementation of 
CAIR.
    The first revision adds a subsection to OAC 3745-14-01 which allows 
units subject to OAC 3745-109, Ohio's CAIR rules, to be exempt from 
Ohio's NOX Budget Trading Program rules. In context, the new 
subsection states, ``(2) The following units shall be exempt from the 
requirements of the NOX budget trading program: (a) Any unit 
to which Chapter 3745-109 of the Administrative Code applies.'' (OAC 
3745-14-01(C)) (emphasis added showing new language). Because 
participation in the CAIR NOX Ozone Season Trading Program 
satisfies the NOX SIP Call for EGUs and large non-EGUs, 
units subject to CAIR would not need additional rules under the 
NOX SIP Call. Also, Ohio's requested revisions to OAC 3745-
14-01 would leave the monitoring and reporting requirements of OAC 
3745-14 in place for any EGUs or large non-EGUs subject to the 
NOX SIP Call that would not otherwise be required to monitor 
and report ozone season NOX emissions using 40 CFR Part 75.
    The second revision adds a subsection to OAC 3745-14-06 addressing 
excess emissions for the 2008 control period, the final year of the 
NOX Budget Trading Program. Under the trading programs, 
affected units are allocated a certain number of allowances each year. 
An allowance is equal to a ton of NOX emissions. Allowances 
can also be transferred to or from other participating units. The 
resulting number of allowances held for a given unit makes up the 
unit's compliance account. At the end of each year, allowances equal to 
the unit's actual emissions for the covered period are deducted from 
the unit's compliance account. Any excess of the unit's emissions over 
the total number of allowances in the compliance account, as well as 
any additional quantity of allowances owed due to the excess emissions 
penalty, is deducted from the unit's allocations for subsequent years. 
The SIP revision for OAC 3745-14-06 provides that allowance deductions 
related to any excess emissions by a unit for the 2008 control period 
should be taken from the unit's CAIR NOX Ozone Season 
Trading Program compliance account rather than the unit's 
NOX Budget Trading Program compliance account, because 
NOX Budget Trading Program compliance accounts would not 
receive any allowance allocations for years after 2008.
    2008 was the year the NOX Budget Trading Program 
transitioned to the CAIR NOX Ozone Season Trading Program, 
therefore the deduction of allowances based on a source's old 
NOX Budget Trading Program budget from the source's new CAIR 
NOX Ozone Season Trading Program budget ensures that the 
source is still accountable for emissions penalties based on excess 
emissions despite the rule transition. EPA finds the revisions to OAC 
3745-14-01, transitioning applicable emissions units from Ohio's 
NOX Budget Trading Program rules to Ohio's CAIR rules, and 
revisions to OAC 3745-14-06, transitioning 2008 allowance deductions, 
approvable under the Clean Air Act.

III. What action is EPA taking?

    EPA is approving revisions to OAC 3745-14, specifically the 
additions to sections 3745-14-01 and 3745-14-06 and the associated 
renumbering. CAIR is the current rule implementing a trading program to 
address interstate transport and was promulgated to replace the 
NOX SIP Call. CAIR is a more stringent program and exceeds 
the requirements of the NOX SIP Call. These revisions allow 
for Ohio's CAIR NOX Ozone Season Trading Program to replace 
Ohio's NOX Budget Trading Program where applicable, but 
leave the requirements of the NOX SIP Call in place for 
units not covered by CAIR. These revisions are consistent with the 
Clean Air Act and CAIR.
    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 January 13, 
2014 without further notice unless we receive relevant adverse written 
comments by December 16, 2013. 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. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment. 
If we do not receive any comments, this action will be effective 
January 13, 2014.

IV. 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).


[[Page 68370]]


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 January 13, 2014. 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, Intergovernmental relations, Nitrogen dioxide, Reporting and 
recordkeeping requirements.

    Dated: September 16, 2013.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATON OF IMPLEMETATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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


0
2. Section 52.1870 is amended by adding paragraph (c)(159) to read as 
follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *
    (159) On August November 15, 2010, Ohio submitted revisions to Ohio 
Administrative Code Chapter 3745-14, Rules 3745-14-01 and 3745-14-06. 
The revisions sunset NOX Budget Trading Program rules for 
units subject to CAIR NOX Ozone Season Trading Program 
rules.
    (i) Incorporation by reference.
    (A) Ohio Administrative Code Rule 3745-14-01 ``Definitions and 
general provisions.'', effective October 18, 2010.
    (B) Ohio Administrative Code Rule 3745-14-06 ``The NOx allowance 
tracking system.'', effective October 18, 2010.
    (C) October 8, 2010, ``Director's Final Findings and Orders'', 
signed by Chris Korleski, Director, Ohio Environmental Protection 
Agency.

[FR Doc. 2013-27142 Filed 11-13-13; 8:45 am]
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