[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Rules and Regulations]
[Pages 56721-56726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25596]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2009-0021; FRL-8972-7]
RIN 2060-AP46
Administrative Stay of Clean Air Interstate Rule for Minnesota;
Administrative Stay of Federal Implementation Plan To Reduce Interstate
Transport of Fine Particulate Matter and Ozone for Minnesota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This final rule administratively stays the effectiveness, for
Minnesota and Minnesota sources only, of two 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) requiring Minnesota and other states in the eastern U.S. to
submit State Implementation Plan (SIP) revisions to limit sulfur
dioxide (SO2) and nitrogen oxides (NOX) emissions
in order to eliminate the significant contribution of these states to
nonattainment for fine particulate matter (PM2.5) and/or
ozone, and eliminates interference with maintenance of attainment, in
downwind states. On April 28, 2006, EPA issued Federal Implementation
Plans (CAIR FIPs) to serve as a backstop until replaced by approved
SIPs. Subsequently, the U.S. Court of Appeals for the District of
Columbia Circuit reversed and remanded CAIR. Among other things, the
Court held that EPA had not properly addressed possible errors in
analysis supporting the inclusion of Minnesota in CAIR for fine
particulate matter. In this final rule, EPA is administratively staying
the effectiveness of CAIR and the CAIR FIP with respect to Minnesota
and sources in Minnesota only, pending further rulemaking in response
to the remand.
DATES: The effective date of this final rule is December 3, 2009.
ADDRESSES: Docket: EPA has established a docket for this final rule
under Docket ID No. EPA-HQ-OAR-2009-0021. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, e.g., confidential
business information 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 at
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: Jeb Stenhouse, Program Development
Branch, Clean Air Markets Division, Office of Atmospheric Programs,
Mail Code 6204J, Environmental Protection Agency, Washington, DC 20460,
telephone number 202-343-9781, fax number 202-343-2359, and e-mail
address [email protected].
SUPPLEMENTARY INFORMATION:
Outline
I. Background
II. What Is the Scope of this Final Rule?
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
K. Congressional Review Act
L. Judicial Review
I. Background
Section 110(a)(2)(D)(i)(I) of the CAA requires that a state's SIP
prohibit emissions by any source or other type of emissions activity in
the state that will ``contribute significantly to nonattainment in, or
interfere with maintenance by, any other State'' with respect to any
national ambient air quality standard (NAAQS). 42 U.S.C.
7410(a)(2)(D)(i)(I). On May 12, 2005, EPA issued CAIR (70 FR 25162, May
12, 2005). In that rule, EPA found that 28 states and Washington, DC
contribute significantly to nonattainment, and interfere with
maintenance, of the NAAQS for fine particulate matter and/or ozone in
downwind states. CAIR required these upwind states to revise their SIPs
to include control measures to reduce emissions of SO2 and/
or NOX and thereby meet the requirements of section
110(a)(2)(D)(i)(I). One of the states included in CAIR for fine
particulate matter, but not for ozone, 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. Further, in CAIR, EPA offered to administer, as a remedy through
which states could comply with CAIR, SO2 annual,
NOX annual, and NOX ozone season trading programs
that states could choose to incorporate in their SIPs. CAIR included
model rules for these trading programs and provided that states could
adopt the model rules in their SIPs and thereby incorporate the trading
programs in the SIPs.
On April 28, 2006, EPA issued the CAIR FIPs (71 FR 25330, April 28
2006). In the April 28, 2006, notice, EPA promulgated FIPs to implement
the emission reduction requirements of CAIR in each state covered by
CAIR until the FIP is replaced by an approved SIP. EPA issued the CAIR
FIPs to provide a federal backstop for CAIR. EPA decided to adopt as
the FIP for
[[Page 56722]]
each state in the CAIR region (including Minnesota) the SIP model
trading programs in CAIR, modified slightly to allow for federal,
instead of state, implementation.
A number of petitioners brought legal challenges to several aspects
of CAIR and of the CAIR FIPs in the U.S. Court of Appeals for the
District of Columbia Circuit. Among the parties challenging the rule
was Minnesota Power, an electric utility operating in Minnesota, who
argued that EPA erred in the analysis of the contribution of Minnesota
sources to downwind nonattainment and thus in including Minnesota in
CAIR for fine particulate matter.
On July 11, 2008, in North Carolina v. EPA, 531 F.3d 896, 926-30
(DC Cir. 2008), the D.C. Circuit ruled on these challenges and vacated
and remanded CAIR and the CAIR FIPs. Of particular relevance here, the
Court granted Minnesota Power's petition and remanded to EPA the issue
of the inclusion of Minnesota and Minnesota sources in CAIR and the
CAIR FIPs because the Court concluded that EPA had failed to fully
address alleged errors in its contribution analysis for Minnesota. Id.
at 926-27. In addition, the Court granted petitions of several other
parties and remanded to EPA issues concerning: EPA's interpretation of
the requirement in section 110(a)(2)(D)(i)(I) that SIPs must prohibit
``interference with maintenance'' with respect to any NAAQS (id. at
909-11); the lawfulness of the CAIR trading programs for NOX
and SO2 as a remedy that will assure that States abate
emissions that significantly contribute to downwind nonattainment or
interfere with maintenance (id. at 907-8); the 2015 deadline for states
to remedy their failure to eliminate their significant contribution
(id. at 911-12); the SO2 and NOX budgets used for
the trading programs (id. at 916-21); and EPA's authority to terminate
or limit Title IV allowances through a trading program under section
110(a)(2)(D)(i)(I) or through a requirement that, to comply with
section 110(a)(2)(D)(i)(I), SIPs have Title IV allowance retirement
provisions (id. at 921-22).
On September 24, 2008, EPA filed a petition for rehearing with the
DC 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 Minnesota until the Agency determined whether
Minnesota should be included in CAIR. This letter was also submitted to
the Court during briefing on the petitions for rehearing.
On December 23, 2008, the DC Circuit granted EPA's petition for
rehearing only with regard to the vacatur and remanded CAIR without
vacatur. This decision means that CAIR and the CAIR FIPs remain in
effect while EPA develops a replacement rule consistent with the July
11, 2008, opinion.
II. What Is the Scope of This Final Rule?
In this final rule, EPA is only staying the effectiveness of CAIR
and the CAIR FIPs with respect to Minnesota and sources in Minnesota.
EPA intends to conduct further rulemaking in response to the Court's
remand of CAIR and the CAIR FIPs. EPA intends that the stay with
respect to Minnesota and Minnesota sources will remain in effect
pending such further rulemaking.
EPA believes that the stay in this final rule is appropriate in
light of several factors related to EPA's consideration, following the
July 11, 2008 decision, of the issue concerning Minnesota's inclusion
in CAIR. First, as discussed above, EPA did not seek rehearing of the
Court's July 11, 2008 decision regarding the contribution analysis for
Minnesota. Instead, before the Court ruled on the petitions for
rehearing, EPA stated its intention to stay CAIR for Minnesota and
sources in Minnesota pending a final agency determination concerning
Minnesota's inclusion in CAIR. This information was presented to the
Court during the rehearing process that resulted in the December 23,
2008 decision to remand CAIR without vacatur. This final rule carries
out EPA's stated intent.
Second, the issue of whether Minnesota significantly contributes to
nonattainment for fine particulate matter in any downwind state,
contrary to one of the requirements for SIPs in section
110(a)(2)(D)(i)(I), is logically severable from the other issues
(described above) that were remanded to EPA by the DC Circuit in North
Carolina. This issue relates solely to whether EPA properly decided
whether Minnesota should be covered by-CAIR for fine particulate
matter. In contrast, the other remanded issues affect multiple states
and relate either to another requirement in section 110(a)(2)(D)(i)(I)
or to whether the specific emission reduction requirements in CAIR were
proper or adequate as a remedy for each state's 110(a)(2)(D)(i)(I)
problems. One of the other remanded issues concerns the Court's
determination that EPA failed to give independent meaning to the
requirement, in section 110(a)(2)(D)(i)(I), that states also eliminate
emissions that interfere with maintenance in downwind states. North
Carolina, 531 F.3d at 910. The remaining remanded issues concern
various aspects of the remedies (e.g., the trading programs) EPA may
approve in SIPs for states determined to have failed to meet the
significant contribution requirement and raise complex questions about
precisely what is required for each state to eliminate its
significantly contributing emissions prohibited by section
110(a)(2)(D)(i)(I). The issue about Minnesota and Minnesota sources
concerns the discrete question of whether EPA erred in its analysis of
the contribution of Minnesota sources to downwind nonattainment areas
and is logically severable from all the other remanded issues.
Third, as discussed in detail below, EPA finds that the stay with
respect to Minnesota and Minnesota sources can be implemented
immediately without disrupting the operation of the trading programs
under CAIR and the CAIR FIPs and the allowance market. The stay is thus
consistent with the Court's July 11, 2008 and the December 28, 2008
decisions leaving the CAIR and CAIR FIPs in place as promulgated while
EPA develops a replacement rule. In addition, as noted above, the Court
was aware of EPA's intent to stay CAIR with respect to Minnesota and
Minnesota sources when it issued the December 28, 2008 decision.
Minnesota sources are currently subject to the CAIR annual
SO2 and annual NOX trading programs, and the
major issue in implementing the stay is how to treat, during the stay
period, allowances that are usable in the trading programs and have
already been allocated and recorded for Minnesota sources. As explained
below, SO2 and NOX allowances must be treated
differently.
In the CAIR SO2 trading program as promulgated, sources
(including those in Minnesota) are not issued new allowances but
instead must use title IV allowances for compliance in the trading
program.\1\ Under title IV, allowances were allocated to sources,
generally during 1993 in perpetuity, with each allowance authorizing in
the Acid Rain Program one ton of emissions in the year for which the
allowance was allocated or any year thereafter. In the CAIR
SO2 trading program, the same allowances are usable and
authorize emissions in the same years, but those allowances allocated
for years before
[[Page 56723]]
2010 authorize one ton of emissions, those allocated for 2010 through
2014 authorize one-half ton of emissions, and those allocated for 2015
and thereafter authorize 0.35 ton of emissions. Implementation of the
stay adopted in this final rule does not involve EPA making any changes
in this final rule with regard to Minnesota sources' title IV
allowances. Under the stay, these sources retain the title IV
allowances that they currently hold (including any allocations for 2010
and thereafter that the sources have not transferred). Moreover, like
any other title IV allowance that has not already been used or retired,
title IV allowances allocated to Minnesota sources continue to be
usable in either the Acid Rain Program or the CAIR SO2
trading program and retain the above-described emission tonnage
authorizations because those authorizations depend on the year for
which the allowances were issued and the trading program in which they
are used, not on whether the entity to which the allowances were
allocated is subject to CAIR.
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\1\ While CAIR SO2 opt-in units are allocated new
CAIR SO2 allowances, the Minnesota FIP does not allow for
opt-in units.
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In contrast, the CAIR NOX annual trading program
provides for the issuance of new CAIR NOX allowances and
such allowances for 2009 have already been allocated for existing
Minnesota sources and recorded in the sources' compliance accounts in
the allowance tracking system for that program under the CAIR FIP for
Minnesota. For the reasons discussed below, implementation of the stay
in this final rule requires that an amount of 2009 CAIR NOX
allowances equivalent to the amount that has already been allocated and
recorded for these sources be removed from the CAIR NOX
annual trading program and that no more CAIR NOX allowances
be allocated to Minnesota sources for the period that the stay is in
place. However, as discussed below, EPA finds that this can be
accomplished without disruption of the trading program and the
allowance market.
While the stay in this final rule is in place, Minnesota sources
will not need to use any of their allowance allocations to authorize
their annual NOX emissions. If those allowances that have
already been recorded were not removed from the trading program and if
allowances for future years continued to be allocated and recorded for
Minnesota sources, 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 each year for use by sources in the states that
will continue to be subject to the NOX annual trading
program under CAIR or the CAIR FIPs. As a result, the total amount of
CAIR NOX allowances available each year for sources in these
states would exceed the sum of the NOX annual trading
budgets under CAIR and the CAIR FIPs for these states. If this were
allowed, the CAIR NOX annual trading program would not
achieve the NOX emission reductions intended under CAIR and
the CAIR FIPs and reflected in the state NOX annual trading
budgets.
EPA could have accomplished the removal from the trading program of
the amount of the 2009 CAIR NOX allowances allocated and
recorded for Minnesota sources under the FIP for the CAIR
NOX annual trading program by simply requiring those sources
to surrender those specific allowances. However, EPA understands that,
although most of the CAIR NOX allowances allocated and
recorded for sources in Minnesota are still held in the sources'
compliance accounts, at least one Minnesota source has traded some of
its recorded allowance allocations.\2\ Consequently, the final rule
requires that each Minnesota source with a recorded allowance
allocation in the CAIR NOX annual trading program hold an
amount of CAIR NOX allowances issued for the same year as
the recorded allocation (i.e., 2009) equal to the amount of the
recorded allocation, regardless of whether the allowances held are the
same ones that were allocated to the Minnesota source. Further, under
the final rule, the Administrator will deduct, and thereby retire,
these required allowance holdings, and no additional allowance
allocations from the state NOX annual trading budget for
Minnesota will be recorded.
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\2\ According to EPA's allowance tracking system, a total amount
of 29,875 CAIR NOX allowances were allocated to Minnesota
sources for 2009, and 68 of such allowances were sold (in a single
transfer on March 7, 2008) by the recipient of the allocation to
another party.
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For the reasons outlined in the following paragraphs, EPA believes
that this approach of requiring Minnesota sources to hold 2009 CAIR
NOX allowances equal in amount to such sources' allocations
will achieve the allowance removal necessary to implement the stay
without disrupting the operation of the CAIR NOX annual
trading program under CAIR and the CAIR FIPs, the allowance market, and
the participation of non-Minnesota sources in the program. EPA also
believes that it is reasonable that Minnesota sources be given the
responsibility of holding in their compliance accounts the allowances
that the Administrator needs to remove.
First, each Minnesota source with a recorded allocation for 2009
can meet this responsibility by continuing to hold its allocated 2009
CAIR NOX allowances that it has not transferred and--to the
extent necessary to replace any of its allocated 2009 CAIR
NOX allowances that have been included in the few trades of
Minnesota-source-allocated allowances that have occurred--by obtaining
other 2009 CAIR NOX allowances. EPA does not believe it
needs to require Minnesota sources to hold for deduction exactly the
same CAIR NOX allowances that were allocated to such
sources. Because all CAIR NOX allowances issued for a given
year (here, 2009) under the CAIR NOX annual trading program
under CAIR and the CAIR FIPs are fungible, deduction of the same amount
of CAIR NOX allowances issued for 2009 has the desired
effect of removing the extra allowances for 2009 whether the deducted
allowances are the ones allocated to Minnesota sources or those
allocated to other sources. In short, a deduction--but no
reallocation--of CAIR NOX allowances is necessary to
implement the stay of the effectiveness of CAIR and the CAIR FIP rule
with regard to Minnesota and Minnesota sources.
Further, this approach avoids disruption of the trading program,
the allowance market, and the participation of non-Minnesota sources
because no allowance transfers that have occurred will be reversed or
invalidated. Any party that purchased allocated CAIR NOX
allowances from a Minnesota source will retain the ability to use,
hold, or transfer those purchased allowances, and any planning, based
on such purchased allowances, for compliance with the requirement to
hold allowances covering emissions will not be affected.
EPA believes that it is reasonable to make Minnesota sources
responsible for holding 2009 CAIR NOX allowances for
deduction in order to implement the stay. The burden of doing so will
be minimal because, as discussed above, these sources have transferred,
and so will have to replace, only a few of their allocated 2009 CAIR
NOX allowances and most of these sources will simply
continue to hold their existing 2009 CAIR NOX allocations.
Further, these sources benefit from the stay in that they would remain
subject to CAIR but for the stay. In summary, the stay can be
implemented--through removal from the CAIR NOX annual
trading program of the amount of Minnesota sources' 2009 CAIR
NOX allowances--without
[[Page 56724]]
disrupting the trading program (including sources' compliance planning)
or the allowance market or unreasonably burdening Minnesota and non-
Minnesota sources.
EPA received several comments on the proposed rule for a stay of
CAIR and the CAIR FIP for Minnesota and Minnesota sources. All of the
comments supported the proposal.\3\ One commenter also requested
clarification of the amount of allowances for 2009 that EPA will deduct
from each Minnesota source's compliance account. The amount of 2009
CAIR NOX allowances deducted will be equal to the amount
originally recorded as the allocation for 2009 for the source. As is
stated explicitly in the text of this final rule, EPA will not deduct,
pursuant to the final rule, any other allowances. Any source in
Minnesota holding any allowances in addition to 2009 CAIR
NOX allowances in the amount of its 2009 CAIR NOX
allocation will retain such additional allowances and may hold them or
transfer them at any time, as the source prefers.
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\3\ In addition, some commenters provided comments, along with
supporting information, that Minnesota was improperly included in
CAIR and that the stay should remain in effect until EPA
prolmulgates a replacement rule for CAIR consistent with the Court's
decisions. One commenter also attached to its comment on the
proposal a copy of comments presented during the CAIR FIPs
rulemaking, concerning the applicability and allowance allocation
provisions in the CAIR FIP trading programs. In this rulemaking, EPA
is only staying CAIR and the CAIR FIPs with respect to Minnesota and
sources in Minnesota, without specifying at this time how long the
stay will remain in effect, and is not taking any action regarding
any other issues concerning CAIR and the CAIR FIPs. These comments
thus are beyond the scope of this rule and do not require a
response. EPA will respond to these comments in the context of the
Agency's rulemaking in response to the remand of CAIR and the CAIR
FIPs.
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Although the proposed rule set June 30, 2009, as the date on which
Minnesota sources must hold these allowances for deduction, that date
has passed. Instead, EPA is adopting in this final rule midnight of the
date 30 days after the Federal Register publication date for this final
rule (which EPA is also setting as the final rule's effective date) as
the earliest, reasonable time and date on which to require the holding
of such allowances. EPA believes that the requirement to hold such
allowances as of midnight of December 3, 2009 will provide sufficient
time for Minnesota sources to obtain the proper amount of CAIR
NOX allowances, particularly in light of the few trades of
Minnesota-source-allocated allowances that have occurred. Moreover,
EPA's preferred approach, as explained in the proposed rule, is
removing these allowances from the trading program as quickly as
possible. None of the commenters opposed that general approach.
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 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
information collection burden on any state, local, or tribal
governments or the private sector and instead temporarily relieves
Minnesota sources of any information collection burden under the CAIR
trading programs.
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 that is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule does not impose any requirements on small entities and instead
temporarily relieves Minnesota sources (including any small entities in
Minnesota) of the allowance-holding and other requirements under the
CAIR trading programs, except for the one-time requirement to hold
allowances equal to the sources' 2009 CAIR NOX allowance
allocations.
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 does not impose any new obligations or enforceable
duties on any state, local, or tribal governments or the private sector
and instead temporarily relieves Minnesota sources of the allowance-
holding and other requirements under the CAIR trading programs, except
for the one-time requirement to hold allowances equal to the sources'
2009 CAIR NOX allowance allocations. 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
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 and instead temporarily relieves Minnesota sources of the
allowance-holding and other requirements under the CAIR trading
programs, except for the one-time requirement to hold allowances equal
to the sources' 2009 CAIR NOX allowance allocations. 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 solicited comments on the proposed action
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
[[Page 56725]]
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 and instead
temporarily relieves Minnesota sources of the allowance-holding and
other requirements under the CAIR trading programs, except for the one-
time requirement to hold allowances equal to the sources' 2009 CAIR
NOX allowance allocations. Thus, Executive Order 13175 does
not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 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 Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it imposes no
new requirements and instead temporarily relieves Minnesota sources of
the allowance-holding and other requirements under the CAIR trading
programs, except for the one-time requirement to hold allowances equal
to the sources' 2009 CAIR NOX allowance allocations.
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.
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 the Office of Management and Budget, explanations
when the Agency decides not to use available and applicable voluntary
consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider 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, February 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.
EPA has determined that this final 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 new requirements and only temporarily relieves Minnesota
sources of the allowance-holding and other requirements under the CAIR
trading programs, except for the one-time requirement to hold
allowances equal to the sources' 2009 CAIR NOX allowance
allocations.
K. Congressional Review Act
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
rule 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 final rule is not a ``major rule'' as defined by 5
U.S.C. 804(2). This rule will be effective on December 3, 2009.
L. Judicial Review
Section 307(b)(1) of the CAA indicates which U.S. Courts of Appeal
have venue for petitions of review of final actions by EPA. This
section provides, in part, that petitions for review must be filed in
the U.S. Court of Appeals for the District of Columbia Circuit if (i)
the agency action consists of ``nationally applicable regulations
promulgated, or final action taken, by the Administrator,'' or (ii)
such action is locally or regionally applicable, if ``such action is
based on a determination of nationwide scope or effect and if in taking
such action the Administrator finds and publishes that such action is
based on such a determination.''
Any final action related to CAIR is ``nationally applicable''
within the meaning of section 307(b)(1). Through CAIR and the CAIR
FIPs, EPA interprets section 110 of the CAA, a provision that has
nationwide applicability. In addition, the determination of whether a
state (here, Minnesota) is covered by CAIR is based on a common core of
factual findings and analyses concerning the transport of pollutants
between different states. Finally, EPA has established uniform
approvability criteria that would be applied to the SIP revisions
submitted by all states subject to CAIR. For these reasons, the
Administrator also is determining that any final action regarding CAIR
is of nationwide scope and effect for purposes of section 307(b)(1).
Thus, any petitions for review of this final rule must be filed in the
Court of Appeals for the District of Columbia Circuit within 60 days
from the date the final rule is published in the Federal Register.
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: October 15, 2009.
Lisa P. Jackson,
Administrator.
0
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 amended as follows:
[[Page 56726]]
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
0
2. Section 51.123 is amended by adding a new paragraph (a)(3) to read
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) * * *
(3) Notwithstanding the other provisions of this section, such
provisions are not applicable as they relate to the State of Minnesota
as of December 3, 2009.
* * * * *
0
3. Section 51.124 is amended by redesignating paragraph (a) as
paragraph (a)(1) and adding a new paragraph (a)(2) to read 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) * * *
(2) Notwithstanding the other provisions of this section, such
provisions are not applicable as they relate to the State of Minnesota
as of December 3, 2009.
* * * * *
0
4. Section 51.125 is amended by adding a new paragraph (a)(3) to read
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, such
provisions are not applicable as they relate to the State of Minnesota
as of December 3, 2009.
* * * * *
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
5. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
6. Section 52.35 is amended by adding a new paragraph (e) to read 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, such
paragraphs are not applicable as they relate to sources in the State of
Minnesota as of December 3, 2009, except as provided in Sec.
52.1240(b).
0
7. Section 52.36 is amended by adding a new paragraph (d) to read 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, such paragraph
is not applicable as it relates to sources in the State of Minnesota as
of December 3, 2009.
0
8. Section 52.1240 is amended by adding a new paragraph (b) to read 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, such paragraph
is not applicable as it relates to sources in the State of Minnesota as
of December 3, 2009, except that:
(1) The owner and operator of each source referenced in such
paragraph 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 midnight of December 3, 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 December 3, 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 compliance
account under paragraph (b)(1) of this section. The Administrator will
not deduct, for purposes of implementing the stay, any other CAIR
NOX allowances held in that compliance account and, starting
no later than December 3, 2009, will not record any allocation of CAIR
NOX allowances included in the State trading budget for
Minnesota for any year.
0
9. Section 52.1241 is amended by redesignating the existing text as
paragraph (a) and adding a new paragraph (b) to read 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, such paragraph
is not applicable as it relates to sources in the State of Minnesota as
of December 3, 2009.
[FR Doc. E9-25596 Filed 11-2-09; 8:45 am]
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