[Federal Register Volume 74, Number 112 (Friday, June 12, 2009)]
[Rules and Regulations]
[Pages 27940-27944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13860]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 72, 73, 74, 77, and 78
[EPA-HQ-OAR-2008-0774; FRL-8917-6]
RIN 2060-AP35
Rulemaking To Reaffirm the Promulgation of Revisions of the Acid
Rain Program Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this action, EPA is reaffirming the promulgation of certain
revisions of the Acid Rain Program rules. These revisions have been in
effect since mid-2006. Most of them are crucial to the ongoing
operation of the Acid Rain Program, and the rest of them streamline and
clarify requirements of the program, which has achieved significant,
cost-effective reductions in sulfur dioxide (SO2) emissions
from utility sources since its commencement in 1995. These rule
revisions were finalized in the Federal Register notices that also
finalized the Clean Air
[[Page 27941]]
Interstate Rule (CAIR) and the final Federal Implementation Plans for
CAIR (CAIR FIPs). On July 11, 2008, the U.S. Court of Appeals for the
District of Columbia Circuit issued a decision vacating and remanding
CAIR and the CAIR FIPs. On December 23, 2008, in response to petitions
for rehearing, the Court modified its July 11, 2008 decision and
remanded CAIR and the CAIR FIPs but without a vacatur. These revisions
to the Acid Rain Program rules were not addressed by, or involved in
any of the issues raised by, any parties in the proceeding or the
Court. EPA believes it is reasonable to view these revisions as
unaffected by the Court's decision. However, EPA is treating the
Court's remand as covering these revisions and, in response to the
remand, is finalizing the rule reaffirming--pursuant to its authority
under Title IV of the Clean Air Act (CAA) and CAA section 301--the
promulgation of these revisions on their merits and in order to remove
any uncertainty about their regulatory status. With this action, the
existing Acid Rain regulations continue in effect, and the Acid Rain
Program continues to operate, unchanged and uninterrupted.
DATES: The effective date of this action is August 11, 2009.
ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2008-0774 (which includes by reference the dockets for CAIR
and the CAIR FIPs, i.e., Docket ID Nos. EPA-HQ-OAR-2003-0053 and EPA-
HQ-OAR-2004-0076). All documents in the docket are listed in the
Federal Docket Management System index at http://www.regulations.gov.
Although listed in the index, some information is not publicly
available, e.g., Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at the Air and Radiation
Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC 20460. 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 Air and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Dwight C. Alpern, Clean Air Markets
Division, U.S. Environmental Protection Agency, Clean Air Markets
Division, Mailcode: 6204J, Ariel Rios Building, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460, telephone (202) 343-9151, e-mail at
[email protected]. Electronic copies of this document can be
accessed through the EPA Web site at: http://epa.gov/airmarkets.
SUPPLEMENTARY INFORMATION:
Regulated Entities. Entities regulated by this action primarily are
fossil fuel-fired boilers, turbines, and combined cycle units that
serve generators that produce electricity for sale or cogenerate
electricity for sale and steam. Regulated categories and entities
include:
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Examples of
potentially
Category NAICS code regulated
industries
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Industry........................ 221112 and others. Electric service
providers.
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This table is not intended to be exhaustive, but rather to provide
a guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities, of which EPA is now
aware, that could potentially be regulated by this action. Other types
of entities not listed in this table could also be regulated. To
determine whether your facility, company, business, organization, etc.,
is regulated by this action, you should carefully examine the
applicability provisions in Sec. Sec. 72.6, 72.7, and 72.8 of title 40
of the Code of Federal Regulations. If you have questions regarding the
applicability of this action to a particular entity, consult the person
in the preceding FOR FURTHER INFORMATION CONTACT section.
Administrative Procedures Used in This Action. This notice
finalizes the promulgation of certain revisions, of the Acid Rain
Program rules, that were previously promulgated and have been in effect
since mid-2006 and withdraws the interim final rule (73 FR 75983 and
75959, December 15, 2008) reaffirming the promulgation of these same
revisions. On December 15, 2008, EPA published in the Federal Register
parallel notices of proposed and direct final rules reaffirming the
promulgation of the non-CAIR- and non-CAIR-FIP-related Acid Rain
Program rule revisions that were originally finalized in the Federal
Register notices that also finalized CAIR and CAIR FIPs. 73 FR 75954
and 75983, December 15, 2008. As explained in the proposed and direct
final notices, those notices provided interested persons an opportunity
for public hearing and comment on the rule revisions until January 29,
2009. EPA explained that, if it received any adverse comment on the
direct final notice, that notice would be withdrawn, no further
opportunity for public comment would be provided, and a final rule
would be issued based on the proposed notice and responding to all
comments. The interim final rule would continue in effect until
December 15, 2009 unless it was withdrawn on an earlier date by the
direct final rule or (if the direct final rule itself was withdrawn)
the final rule addressing these rule revisions. Therefore, following
the receipt of an adverse comment, EPA withdrew the direct final notice
(74 FR 13124, March 26, 2009).
Outline. The following outline is provided to aid in locating
information in this preamble.
I. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed
II. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
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
I. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed
The Acid Rain Program rule revisions whose promulgation EPA is
reaffirming in this final rule are described in detail in section III
of the preamble of the interim final rule (73 FR 75963-66), which also
explains the merits of the revisions. The revisions are non-CAIR- and
non-CAIR-FIP-related Acid Rain Program rule revisions that were
originally finalized in the Federal
[[Page 27942]]
Register notices that also finalized CAIR and the CAIR FIPs. As
explained in the interim final notice, the revisions have been in
effect since mid-2006, most of them are crucial to the ongoing
operation of the Acid Rain Program, and the rest of them streamline and
clarify requirements of the program.
On July 11, 2008 (before promulgation of EPA's interim final and
proposed notices), the U.S. Court of Appeals for the District of
Columbia Circuit had issued a decision vacating and remanding CAIR and
the CAIR FIPs. On December 23, 2008 (after interim final and proposed
notices were promulgated but before the end of the comment period on
the direct final notice), the Court modified its July 11, 2008 decision
in response to petitions for rehearing and remanded CAIR and the CAIR
FIPs but without a vacatur. These revisions to the Acid Rain Program
rules were not addressed by, or involved in any of the issues raised
by, any parties in the proceeding or the Court. EPA believes it is
reasonable to view these revisions as unaffected by the Court's
decision. However, EPA is treating the Court's remand as covering these
revisions and, in response to the remand, is finalizing its
reaffirmation--pursuant to its authority under Title IV of the Clean
Air Act (CAA) and CAA section 301--of the promulgation of these
revisions for the reasons set forth in the interim final rule preamble
(73 FR 75963-66) and in order to remove any uncertainty about their
regulatory status.\1\
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\1\ As noted above, the Court's disposition of CAIR and the CAIR
FIPs changed--from remand with vacatur to remand without vacatur--
after EPA proposed and explained the reaffirmation in the interim
final and proposed notices but before the end of the comment period
on the direct final notice. Moreover, the final reaffirmation in
this action still is in response to a remand and based on the
revisions' merits set forth in the interim final rule. EPA therefore
maintains that, despite the Court's modification of its decision,
the public has had a full opportunity to comment on the
reaffirmation.
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EPA received only one comment on these revisions during the comment
period for the direct final rule affirming the promulgation of the
revisions. The comment, which was submitted on December 15, 2008,
objected to finalization of any rules until the new administration
could review them. The comment raised no substantive issues concerning
any of the revisions at issue here. Having completed the requested
review, EPA concludes that the promulgation of these revisions should
be reaffirmed on their merits as set forth in the interim final rule
(73 FR 75963-66). Further, in light of such final reaffirmation, EPA is
withdrawing the interim final rule as of the effective date of this
final rule. With this action, the existing Acid Rain regulations
continue in effect, and the Acid Rain Program continues to operate,
unchanged and uninterrupted.
II. 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 Executive Order. In this
action, EPA is simply reaffirming the promulgation of Acid Rain Program
rule revisions that were previously issued and are currently in effect
and have been since mid-2006.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This rule simply reaffirms the promulgation of Acid Rain Program rule
revisions that were previously issued, does not change the existing
requirements in 40 CFR Parts 72, 73, 74, 77, and 78, and thus does not
change the existing information collection burden. Moreover, EPA
maintains that the effect of these revisions when they were first
promulgated was, if anything, to reduce somewhat the information
collection burden on regulated sources, e.g., by requiring compliance
with the allowance-holding requirement at a source, rather than unit,
level (thereby removing the need to transfer allowances among units at
the same source) and by making other changes to the rules in place when
the rule revisions were originally promulgated (such as removing the
requirement for submission of an annual compliance certification
report). In addition, the Office of Management and Budget (OMB)
previously approved the information collection requirements in the
existing rules under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501, et seq., and has assigned OMB control number 2060-0258.
OMB control numbers for EPA's regulations in 40 CFR are listed in 40
CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) (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
today's rule on small entities, small entity is defined as: (1) A small
business as defined by the SBA's 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 which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on small
entities, the impact of concern is any significant adverse economic
impact on small entities, since the primary purpose of the regulatory
flexibility analysis is to identify and address regulatory alternatives
``which minimize any significant economic impact of the rule on small
entities.'' 5 U.S.C. 603 and 604. Thus, an agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden or
otherwise has a positive economic effect on all of the small entities
subject to the rule.
This rule does not change the existing Acid Rain Program rules and
thus the economic impact of those rules on small entities. The rule
simply reaffirms the promulgation of existing Acid Rain Program rule
revisions that have been in effect since mid-2006. Moreover, the effect
of these revisions when they were first promulgated was, if anything,
to reduce somewhat the economic impact of the then-existing rules on
all regulated sources and thus on small entities that might be, or own,
regulated sources. For example, by requiring compliance on a source,
rather than a unit, basis, the revisions reduced the potential for
excess emissions penalties due to an inadvertent error, e.g., in the
owner's distribution of allowances among the units at a source that
would cause one unit to have more than enough allowances to cover
emissions and another unit to not have enough allowances to cover
emission. As a further example, the revisions removed some requirements
(e.g., the required submission of an annual compliance certification
report) and thereby removed some costs of compliance for all regulated
sources.
[[Page 27943]]
We received no comment on any potential impacts of the rule on
small entities or on any issues related to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
This rule does not change the existing Acid Rain Program rules and
therefore does not result in any additional expenditures to State,
local, and tribal governments or to the private sector. The rule simply
reaffirms the promulgation of Acid Rain Program rule revisions that
were previously issued and that are still in effect and have been since
mid-2006. Moreover, the effect of these revisions when they were first
promulgated was, if anything, to reduce somewhat the expenditures of
State, local, and tribal governments and the private sector under the
then-existing Acid Rain Program rules. For the same reasons, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (Aug.
10, 1999)), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This rule 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 simply reaffirms the
promulgation of Acid Rain Program rule revisions that were previously
issued and that are still in effect and have been since mid-2006.
Moreover, when first promulgated, these revisions did not have
substantial direct effects on States, the relationship between the
national government and the States, or the distribution of power and
responsibilities. Thus, Executive Order 13132 does not apply to this
rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
With Indian Tribal Governments'' (65 FR 67249 (Nov. 9, 2000)), requires
EPA to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' This rule does not have tribal
implications, as specified in Executive Order 13175. This rule simply
reaffirms the promulgation of Acid Rain Program rule revisions that
were previously issued and that are still in effect and have been since
mid-2006. Moreover, when first promulgated, these revisions did not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, entitled ``Protection of Children From
Environmental Health Risks and Safety Risks'' (62 FR 19885 (Apr. 23,
1997)), applies to any rule that: (1) Is determined to be
``economically significant'' as defined under Executive Order 12866,
and (2) concerns an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. If
the regulatory action meets both criteria, the Agency must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency. EPA interprets Executive Order 13045 as applying only to
those regulatory actions that are based on 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 rule is not subject to the Executive Order because it is not a
significant regulatory action under Executive Order 12866 and is not
based on health or safety risks. This rule simply reaffirms the
promulgation of Acid Rain Program rule revisions that were previously
issued and that are still in effect and have been since mid-2006.
Moreover, when first promulgated, these revisions implemented certain
requirements of the Acid Rain Program that were not on based on health
or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, entitled
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)), because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 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
[[Page 27944]]
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. The NTTAA
directs EPA to provide Congress, through OMB, explanations when the
Agency decides not to use available and applicable voluntary consensus
standards. This rule simply reaffirms the promulgation of Acid Rain
Program rule revisions that were previously issued and that are still
in effect and have been since mid-2006. Moreover, when first
promulgated, these revisions did not address the use of any technical
standards. Thus, this rule is not subject to the NTTAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 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 their programs,
policies, and activities on minority populations and low-income
populations in the United States. EPA has determined that this rule
will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations because it
does not change the level of protection provided to human health or the
environment, but simply reaffirms the promulgation of Acid Rain Program
rule revisions that were previously issued and that are still in effect
and have been since mid-2006. Moreover, when first promulgated, these
revisions did not change the level of protection provided to human
health or the environment.
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 action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on August 11, 2009 without further
notice.
List of Subjects in 40 CFR Parts 72, 73, 74, 77, and 78
Environmental protection, Acid rain, Administrative practice and
procedure, Air pollution control, Electric utilities, Intergovernmental
relations, Reporting and recordkeeping requirements, Sulfur oxides.
Dated: June 5, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-13860 Filed 6-11-09; 8:45 am]
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