[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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