[Federal Register Volume 82, Number 82 (Monday, May 1, 2017)]
[Rules and Regulations]
[Pages 20274-20276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08655]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2016-0092; FRL-9961-57-Region 1]


Air Plan Approval; Rhode Island; Repeal of NOX Budget Trading 
Program

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the State of Rhode 
Island. This revision removes Air Pollution Control (APC) Regulation 
41, entitled ``NOX Budget Trading Program'' (Rhode Island 
NBP) from the Rhode Island SIP. The Rhode Island NBP was a market-based 
cap and trade program, which was created to reduce emissions of 
nitrogen oxides (NOX) from power plants and other large 
combustion sources in response to EPA's 1998 NOX SIP Call. 
By 2009, EPA's Clean Air Interstate Rule (CAIR) had effectively 
replaced NOX Budget Trading Programs in eastern states. CAIR 
has since been replaced by the Cross-State Air Pollution Rule (CSAPR), 
which was first implemented on January 1, 2015. Rhode Island was not 
covered by CAIR or CSAPR. The State's NBP was repealed under state law 
effective July 29, 2014. The five sources meeting the Rhode Island NBP 
applicability criteria have Title V permits, which contain SIP-derived 
NOX emissions limits, that limit their NOX 
emissions below the maximum emissions (936 tons) that were allowed 
under the Rhode Island NBP and, therefore, the requirements of the 
NOX SIP Call are satisfied by the emissions limits contained 
in those sources' permits. This renders Regulation 41 unnecessary. This 
action is being taken in accordance with the Clean Air Act.

DATES: This direct final rule will be effective June 30, 2017, unless 
EPA receives adverse comments by May 31, 2017. 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-R01-
OAR-2016-0092 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Planning 
Unit, U.S. Environmental Protection Agency, EPA New England Regional 
Office, 5 Post Office Square--Suite 100, (Mail code OEP05-2), Boston, 
MA 02109-3912, telephone number (617) 918-1684, fax number (617) 918-
0684, email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. Background and Purpose
II. EPA's Evaluation of Rhode Island's SIP Revision
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    On October 6, 2014, Rhode Island submitted a formal revision to its 
State Implementation Plan (SIP). The SIP revision consists of a request 
to remove from its SIP Air Pollution Control (APC) Regulation 41, 
entitled ``NOX Budget Trading Program'' (Rhode Island NBP). 
The regulation is no longer needed as the subject facilities' Title V 
permits, which contain SIP-derived NOX emissions limits, 
collectively contain maximum allowable emission limitations (682 tons) 
that are significantly lower than the 936-ton limit in the EPA-approved 
Rhode Island NBP. In addition, any new sources that would be 
constructed are subject to the state's new source review program, which 
has been approved by EPA into the Rhode Island SIP (64 FR 67500; 
December 2, 1999).
    Rhode Island's NBP was a market-based cap and trade program, which 
was created to reduce emissions of NOX from power plants and 
other large combustion sources in response to EPA's NOX SIP 
Call (63 FR 57356; October 27, 1998). The NOX SIP call 
originally required 22 States, including Rhode Island, and the District 
of Columbia to meet statewide NOX emission budgets during 
each ozone season (May 1 to October 1) beginning in 2003. In February 
1999, Rhode Island, Massachusetts, and Connecticut signed a memorandum 
of understanding agreeing to distribute the Electric Generating Unit 
(EGU) portions of the three states' budgets amongst themselves. 
Therefore, Rhode Island's SIP submittal for its Regulation 41 
``NOX Budget Trading Program'' (Rhode Island NBP) to meet 
NOX SIP Call requirements was approved at the same time as 
those from Massachusetts and Connecticut (65 FR 81743; December 27, 
2000).
    Sources covered by the Rhode Island NBP include sources with a 
nameplate capacity greater than 15 megawatts electric (MWe) or with a 
maximum design heat input greater than 250 million British thermal 
units per hour (MMBtu/hr). The five sources meeting the NBP 
applicability criteria are Ocean State Power, Pawtucket Power 
Associates, Dominion Energy Manchester Street, Inc., Tiverton Power 
Inc., and Entergy Rhode Island State Energy, L.P. The EPA-approved 
Rhode Island NBP set the total NOX emission budget for all 
applicable sources for each control period (i.e., the May through 
October ozone season) at 936 tons.
    In May 2005, EPA issued the Clean Air Interstate Rule (CAIR) (70 FR 
25162; May 12, 2005), which covered 27 eastern states and the District 
of Columbia. CAIR used a cap and trade program to reduce sulfur dioxide 
(SO2) and NOX emissions from power plants and 
other large combustion sources to meet the 1997 annual and 24-hour fine 
particle (PM2.5) and 1997 8-hour ozone National Ambient Air 
Quality Standards (NAAQS). By 2009, CAIR had replaced NBPs for CAIR 
states. CAIR was subsequently replaced by the Cross-State Air Pollution 
Rule (CSAPR) (76 FR 48208; August 8, 2011). CSAPR implementation began 
on January 1, 2015. EPA revised the CSAPR ozone-season NOX 
program by issuing an update to CSAPR for the 2008 ozone NAAQS, known 
as the CSAPR Update

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(81 FR 74504; October 26, 2016). The CSAPR Update will largely replace 
the original CSAPR ozone-season NOX program on May 1, 2017. 
Rhode Island was not covered by CAIR, CSAPR, or the CSAPR Update. 
However, neither CAIR nor CSAPR preempted or replaced the underlying 
requirements of the NOX SIP Call and, therefore, Rhode 
Island remains subject to those requirements.
    In order for Rhode Island to be able to remove its NBP from the 
SIP, the state has demonstrated that its total NOX emission 
limitation under its NBP (936 tons during each ozone-season control 
period) would be retained. As noted earlier, all of the sources meeting 
the Rhode Island NBP applicability criteria have Title V permits, which 
contain SIP-derived NOX emissions limits, that collectively 
limit their allowable NOX emissions to amounts below 936 
tons, and these sources also remain subject to adequate monitoring, 
recordkeeping and reporting requirements.
    On April 7, 2014, Rhode Island Department of Environmental 
Management (RI DEM) proposed to repeal APC Regulation No. 41 
``NOX Budget Trading Program'' and offered the public an 
opportunity to schedule a public hearing on or before May 8, 2014. No 
requests for a public hearing were requested, and repeal of this 
regulation under state law became effective on July 29, 2014. On 
October 6, 2014, RI DEM submitted a SIP revision to EPA to remove APC 
Regulation No. 41 from the Rhode Island SIP.

II. EPA's Evaluation of Rhode Island's SIP Revision

    EPA has reviewed the Title V permits, and NOX emissions 
limits contained therein, for the five sources that meet the Rhode 
Island NBP applicability criteria: Ocean State Power, Pawtucket Power 
Associates, Dominion Energy Manchester Street, Inc., Tiverton Power 
Inc., and Entergy Rhode Island State Energy, L.P. These permits, which 
include emissions limits, and a technical support document (TSD) 
supporting EPA's evaluation are available in the docket for today's 
action.
    The maximum allowable NOX emissions from the five Rhode 
Island sources during any ozone-season control period under the Title V 
permits were calculated using the following conservative assumptions: 
(1) All units are operating at maximum capacity; and (2) all units are 
operating at all times throughout the ozone season. As detailed in the 
TSD, the maximum allowable NOX emissions were calculated to 
be 682 tons, well below the 936 tons allowed under the Rhode Island 
NBP. These calculated emissions were also compared to these sources' 
actual emissions during 2016, the most recent year for which emissions 
data is available from EPA's Clean Air Markets at https://ampd.epa.gov/ampd/. A spreadsheet showing this data is included in the docket for 
today's action. Actual 2016 ozone-season NOX emissions for 
the five sources were 221 tons, significantly below both the 682 tons 
allowed under the Title V permits and the 936 tons allowed under the 
Rhode Island NBP. Therefore, the state has been meeting, and will 
continue to meet, the requirements of the NOX SIP Call.
    Furthermore, as Rhode Island is meeting the requirements of the 
NOX SIP call through the implementation of the facilities' 
permitted NOX emissions limits, removing APC Regulation No. 
41 from the Rhode Island SIP will not interfere with any applicable 
requirement concerning attainment of the NAAQS, reasonable further 
progress, or any other applicable Clean Air Act requirement; i.e., the 
SIP revision meets the Clean Air Act's section 110(l) anti-backsliding 
requirements. In addition, any new sources that would be constructed 
would be subject to the state's new source review program which has 
been approved by EPA into the Rhode Island SIP (64 FR 67500; December 
2, 1999). Accordingly, EPA is approving the removal of APC Regulation 
No. 41 from the Rhode Island SIP.

III. Final Action

    EPA is approving Rhode Island's request, submitted to EPA on 
October 6, 2014, to remove from the Rhode Island SIP APC Regulation No. 
41 ``NOX Budget Trading Program.''
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective June 
30, 2017 without further notice unless the Agency receives relevant 
adverse comments by May 31, 2017.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on the proposed rule. All parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on June 30, 2017 and no further action will be 
taken on the proposed rule. 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.

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 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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

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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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 June 30, 2017. 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, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    Dated: March 23, 2017.
Deborah A. Szaro,
Acting Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart OO--Rhode Island


Sec.  52.2070  [Amended]

0
2. In Sec.  52.2070, in the table in paragraph (c), remove the entry 
``Air Pollution Control Regulation 41''.

[FR Doc. 2017-08655 Filed 4-28-17; 8:45 am]
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