[Federal Register Volume 82, Number 184 (Monday, September 25, 2017)]
[Rules and Regulations]
[Pages 44525-44527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20341]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0574; FRL-9968-15-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Removal of Clean Air Interstate Rule Trading Programs 
Replaced by Cross-State Air Pollution Rule Trading Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve two state implementation plan (SIP) revisions 
submitted by the State of West Virginia. These revisions pertain to two 
West Virginia regulations that established trading programs under the 
Clean Air Interstate Rule (CAIR). The EPA-administered trading programs 
under CAIR were discontinued on December 31, 2014 upon the 
implementation of the Cross-State Air Pollution Rule (CSAPR), which was 
promulgated by EPA to replace CAIR. CSAPR established federal 
implementation plans (FIPs) for 23 states, including West Virginia. The 
submitted SIP revisions request removal of regulations that implemented 
the CAIR annual nitrogen oxide (NOX) and annual sulfur 
dioxide (SO2) trading programs from the West Virginia SIP 
(as CSAPR has supplanted CAIR). West Virginia's SIP revision submittal 
requesting removal of a regulation that implemented the CAIR ozone 
season trading program will be addressed in a separate action. EPA is 
approving these SIP revisions in accordance with the requirements of 
the Clean Air Act (CAA).

DATES: This rule is effective on December 26, 2017 without further 
notice, unless EPA receives adverse written comment by October 25, 
2017. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2016-0574 at https://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, 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. 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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: On July 13, 2016, the State of West 
Virginia, through the West Virginia Department of Environmental 
Protection (WVDEP), submitted three SIP revisions requesting EPA remove 
from its SIP three regulations that implemented the CAIR (70 FR 25162, 
May 12, 2005) trading programs: Regulation 45CSR39--Control of Annual 
Nitrogen Oxides Emissions, Regulation 45CSR40--Control of Ozone Season 
Nitrogen Oxides Emissions, and Regulation 45CSR41--Control of Annual 
Sulfur Dioxide Emissions. This action pertains to the two submittals 
that remove 45CSR39 and 45CSR41, the CAIR annual NOX and 
annual SO2 trading programs, respectively, from the West 
Virginia SIP. The submittal pertaining to removal of the CAIR ozone 
season NOX trading program is not a part of this action and 
will be addressed in a separate action.

I. Background

    In 2005, EPA promulgated CAIR (70 FR 25162, May 12, 2005) to 
address transported emissions that significantly contributed to 
downwind states' nonattainment and interfered with maintenance of the 
1997 ozone and fine particulate matter (PM2.5) national 
ambient air quality standards (NAAQS). CAIR required 28 states, 
including West Virginia, to reduce emissions of NOX and 
SO2, precursors to the formation of ambient ozone and 
PM2.5. Under CAIR, EPA established federal implementation 
plans (FIPs) comprised of separate cap and trade programs for annual 
NOX, ozone season NOX, and annual SO2. 
States could comply with the requirements of CAIR by remaining on the 
FIP, which applied only to electric generating units (EGUs), or by 
submitting a CAIR SIP revision that included as trading sources EGUs 
and certain non-EGUs \1\ that formerly traded in the NOX 
Budget Trading Program under the NOX SIP Call.\2\ West 
Virginia submitted, and EPA approved, a CAIR SIP revision that included 
EGUs and certain non-EGUs as part of the State's regulation for the 
CAIR ozone season trading program as well as EGUs in the CAIR annual 
trading program for NOX and SO2. See 74 FR 38536 
(August 4, 2009).
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    \1\ These non-EGUs are defined in the NOX SIP Call as 
stationary, fossil fuel-fired boilers, combustion turbines, or 
combined cycle systems with a maximum design heat input greater than 
250 million British thermal units per hour (MMBtu/hr).
    \2\ In October 1998, EPA finalized 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 called the NOX SIP Call. 
See 63 FR 57356 (October 27, 1998).
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    The United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) initially vacated CAIR in 2008,\3\ but 
ultimately remanded the rule to EPA without vacatur to preserve the 
environmental benefits provided by CAIR.\4\ The ruling allowed CAIR to 
remain in effect temporarily until a replacement rule consistent with 
the Court's opinion was developed. While EPA worked on developing a 
replacement rule, the CAIR program continued as planned with the 
NOX annual and ozone season programs

[[Page 44526]]

beginning in 2009 and the SO2 annual program beginning in 
2010.
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    \3\ North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
    \4\ North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008).
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    On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's 
remand, EPA promulgated the CSAPR to replace CAIR to address the 
interstate transport of emissions contributing to nonattainment and 
interfering with maintenance of the two air quality standards covered 
by CAIR as well as the 2006 PM2.5 NAAQS. The rule also 
contained provisions that would sunset CAIR-related obligations on a 
schedule coordinated with the implementation of CSAPR compliance 
requirements. CSAPR was to become effective January 1, 2012; however, 
the timing of CSAPR's implementation was impacted by a number of court 
actions.
    Numerous parties filed petitions for review of CSAPR in the D.C. 
Circuit, and on December 30, 2011, the D.C. Circuit stayed CSAPR prior 
to its implementation and ordered EPA to continue administering CAIR on 
an interim basis.\5\ On August 21, 2012, the court issued its ruling, 
vacating and remanding CSAPR to EPA and ordering continued 
implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 
F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was 
reversed by the United States Supreme Court on April 29, 2014, and the 
case was remanded to the D.C. Circuit to resolve remaining issues in 
accordance with the Supreme Court's ruling. EPA v. EME Homer City 
Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit 
affirmed CSAPR in most respects.
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    \5\ Order of Dec. 30, 2011, in EME Homer City Generation, L.P. 
v. EPA, D.C. Cir. No. 11-1302.
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    Throughout the initial round of D.C. Circuit proceedings and the 
ensuing Supreme Court proceedings, the stay on CSAPR remained in place, 
and EPA continued to implement CAIR. Following the April 2014 Supreme 
Court decision, EPA filed a motion asking the D.C. Circuit to lift the 
stay in order to allow CSAPR to replace CAIR in an equitable and 
orderly manner while further D.C. Circuit proceedings were held to 
resolve remaining claims from petitioners. Additionally, EPA's motion 
requested delay, by three years, of all CSAPR compliance deadlines that 
had not passed as of the approval date of the stay. On October 23, 
2014, the D.C. Circuit granted EPA's request,\6\ and on December 3, 
2014 (79 FR 71663), in an interim final rule, EPA set the updated 
effective date of CSAPR as January 1, 2015 and delayed the 
implementation of CSAPR Phase I to 2015 and CSAPR Phase 2 to 2017. In 
accordance with the interim final rule, the sunset date for CAIR was 
December 31, 2014, and EPA began implementing CSAPR on January 1, 2015.
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    \6\ Order, Document #1518738, EME Homer City Generation, L.P. v. 
EPA, No. 11-1302 (D.C. Cir. issued Oct. 23, 2014).
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    Starting in January 2015, the CSAPR FIP trading programs for annual 
NOX, ozone season NOX and annual SO2 
were applicable in West Virginia. Thus, since January 1, 2015, the West 
Virginia regulations, 45CSR39 and 45CSR41, that implemented the CAIR 
trading programs became obsolete with none of these obsolete programs 
providing any emission reductions.\7\
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    \7\ EPA notes that 45CSR40--Control of Ozone Season Nitrogen 
Oxides Emissions is also obsolete and not affecting emission 
reductions. However, EPA will act on West Virginia's request to 
remove 45CSR40 from the SIP in a separate action.
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II. Summary of SIP Revisions and EPA Analysis

    WVDEP submitted two SIP revisions on July 13, 2016 that requested 
the removal from the West Virginia SIP of the State's regulations 
(45CSR39 and 45CSR41) which implemented respectively the CAIR annual 
NOX and annual SO2 trading programs. As noted 
previously, the annual NOX and SO2 reduction 
programs to address interstate transport of emissions from EGUs for the 
1997 and 2006 PM2.5 NAAQS have been replaced by the CSAPR 
FIP. Because the removal of 45CSR39 and 41 remove moot CAIR provisions 
which have been replaced by CSAPR which is at least as stringent as 
CAIR, the removal of 45CSR39 and 41 from the West Virginia SIP has no 
expected emissions impact on any pollutant and thus is not expected to 
interfere with reasonable further progress, any NAAQS or any other CAA 
requirement. The removal of 45CSR39 and 41 from the West Virginia SIP 
is in accordance with section 110(l) of the CAA. Therefore, EPA 
determines it is appropriate for these two regulations to be removed in 
their entirety from the West Virginia SIP as the regulations contain 
obsolete provisions which no longer provide any emission limitations 
on, or reductions of, any pollutant.

III. Final Action

    EPA is approving the two July 13, 2016 West Virginia SIP revision 
submissions which seek removal from the West Virginia SIP of Regulation 
45CSR39 that implemented the CAIR annual NOX trading program 
and Regulation 45CSR41 that implemented the CAIR annual SO2 
trading program. Removal of these two regulations from the West 
Virginia SIP is in accordance with section 110 of the CAA. EPA is 
publishing this rule without prior proposal because EPA views this as a 
noncontroversial amendment and anticipates no adverse comment. However, 
in the ``Proposed Rules'' section of this issue of the Federal 
Register, EPA is publishing a separate document that will serve as the 
proposal to approve the SIP revision if adverse comments are filed. 
This rule will be effective on December 26, 2017 without further notice 
unless EPA receives adverse comment by October 25, 2017. If EPA 
receives adverse comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on this action. Any parties interested in commenting must 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.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. 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);

[[Page 44527]]

     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 CAA; 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 removing West Virginia regulations 45CSR39 
and 45CSR41 from the West Virginia SIP 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.

B. Submission to Congress and the Comptroller General

    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.

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 24, 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 this issue of the 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 action.
    This action approving West Virginia SIP revision submittals to 
remove obsolete CAIR annual trading program provisions 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: September 11, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.

    40 CFR part 52 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 XX--West Virginia


Sec.  52.2520   [Amended]

0
2. In Sec.  52.2520, the first table in paragraph (c) is amended by:
0
a. Removing the table heading and the entries for ``[45 CSR] Series 
39''.
0
b. Removing the table heading and the entries for ``[45 CSR] Series 
41''.

[FR Doc. 2017-20341 Filed 9-22-17; 8:45 am]
 BILLING CODE 6560-50-P