[Federal Register Volume 74, Number 90 (Tuesday, May 12, 2009)]
[Proposed Rules]
[Pages 22147-22151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11107]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2009-0021; FRL-8766-3]
Stay of Clean Air Interstate Rule for Minnesota; Stay of Federal
Implementation Plan To Reduce Interstate Transport of Fine Particulate
Matter and Ozone for Minnesota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to stay the effectiveness, in the State of
Minnesota only, of two final 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). In
CAIR, EPA required Minnesota and other states to submit State
Implementation Plan (SIP) revisions to limit nitrogen oxides
(NOX) and sulfur dioxide (SO2) emissions for the
purpose of reducing the contributions these emissions make to
particulate matter and ozone transport across state boundaries in the
eastern half of the U.S. On April 28, 2006, EPA published Federal
Implementation Plans (CAIR FIPs) containing requirements to serve as a
backstop until replaced by an approved SIP.
Subsequently, the U.S. Court of Appeals for the D.C. Circuit held
that EPA had not properly addressed possible errors in the analysis
supporting EPA's decision that Minnesota should be included in the CAIR
region for fine particulate matter (PM2.5). EPA is proposing
to stay the effectiveness of CAIR and the CAIR FIP with respect to
sources in Minnesota only, while EPA conducts a notice-and-comment
rulemaking addressing this issue and its impact on the inclusion of
Minnesota in CAIR.
DATES: Comments must be received on or before June 11, 2009. If anyone
contacts us requesting a public hearing by May 22, 2009, we will hold a
public hearing approximately 30 days after publication in the Federal
Register. Additional information about the hearing would be published
in a subsequent Federal Register notice.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0021, by one of the following methods:
www.regulations.gov. Follow the on-line instructions for
submitting comments.
E-mail: [email protected]. Attention Docket ID No.
EPA-HQ-OAR-2009-0021.
Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2009-0021.
Mail: EPA Docket Center, EPA West (Air Docket), Attention
Docket ID No. EPA-HQ-OAR-2009-0021, Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center (Air Docket), Attention
Docket ID No. EPA-HQ-OAR-2009-0021, Environmental Protection Agency,
1301 Constitution Avenue, NW., Room 3334; Washington, DC. Such
deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0021. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters and any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the 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: Tim Smith, Air Quality Planning
Division,
[[Page 22148]]
Office of Air Quality Planning and Standards, Mail Code C539-04,
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number: 919-541-4718; fax number: 919-541-0824; e-mail
address: [email protected].
To request a public hearing, please contact Pam Long, Air Quality
Planning Division, Office of Air Quality Planning and Standards, Mail
Code C504-03, Environmental Protection Agency, Research Triangle Park,
North Carolina 27711; telephone number: 919-541-0641; fax number: 919-
541-5509 no later than May 22, 2009 to request a hearing.
SUPPLEMENTARY INFORMATION:
Outline
I. Background
II. What is the Scope of this Proposal?
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
I. Background
On May 12, 2005, EPA issued the CAIR. (70 FR 25162; May 12, 2005).
In this rule, EPA found that 28 states and DC contribute significantly
to nonattainment of the national ambient air quality standards (NAAQS)
for fine particles and/or ozone in downwind states. The CAIR rule
required these upwind states to revise their SIPs to include control
measures to reduce emissions of SO2 and/or NOX.
One of the states included in the CAIR region for fine particles 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. Minnesota was not included in the CAIR
ozone region.
On April 28, 2006, EPA issued the CAIR FIP rule. (71 FR 25330;
April 28 2006). In this rule, EPA promulgated FIPs to implement the
emission reduction requirements of the CAIR in all states covered by
CAIR. The Agency issued the FIP requirements to provide a federal
backstop for CAIR during the time period necessary for states to
develop SIPs. EPA decided to adopt, as the FIP for each state in the
CAIR region (including Minnesota), the SIP model trading programs in
the final CAIR, modified slightly to allow for federal instead of state
implementation.
A number of petitioners brought legal challenges to various aspects
of the CAIR, and of the CAIR FIP rule, in the U.S. Court of Appeals for
the D.C. Circuit. Among the parties challenging the rule was Minnesota
Power, an electric utility operating in Minnesota, who argued that EPA
erred in including the State of Minnesota in the CAIR region for
PM2.5. On July 11, 2008, in North Carolina v. EPA, 531 F.3d
896, 926-30 (D .C . Cir. 2008), the Court ruled on these challenges.
The Court granted Minnesota Power's petition because it concluded that
EPA had failed to fully address alleged errors in its analysis for the
State of Minnesota. The Court also noted that in EPA's CAIR analysis,
Minnesota's contribution to PM2.5 was 0.20 [mu]g/m\3\, the
exact minimum level for inclusion.
On September 24, 2008, EPA filed a petition for rehearing with the
D.C. 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 the State of Minnesota. This letter was also
submitted to the Court during briefing on the petitions for rehearing.
On December 23, 2008, the D.C. Circuit granted EPA's petition for
rehearing only to the extent it remanded the case without vacatur. This
decision will allow CAIR to remain in effect until EPA develops a
replacement rule consistent with the July 11, 2008 opinion.
II. What is the Scope of this Proposal?
EPA intends to conduct further rulemaking[s] in response to the DC
Circuit Court's remand of the CAIR rule. As part of that process, the
Agency will evaluate the claimed errors in its contribution analysis
for the State of Minnesota, and will provide notice-and-comment
opportunity to the general public on our evaluation. Accordingly, in
this action, EPA is proposing to stay the effectiveness of CAIR and the
CAIR FIP with respect to the State of Minnesota and sources in the
State of Minnesota only, during the pendency of the notice-and-comment
rulemaking proceedings that will address whether Minnesota should be
included in the CAIR region for PM2.5.
EPA notes that allocations of CAIR NOX allowances for
existing Minnesota sources for 2009 have already been recorded in the
allowance tracking system under the annual NOX trading
program in the CAIR FIP. EPA believes that, if the effectiveness of
CAIR and the CAIR FIP were stayed as proposed with respect to Minnesota
and sources in Minnesota, then all allowance allocations already
recorded for Minnesota sources in order to implement the CAIR FIP
should be removed from the annual NOX trading program.
Under the proposed stay, Minnesota sources would not need to use
their recorded allowance allocations to authorize their annual
NOX emissions. Unless these allowances were removed from the
trading program, 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 for use by sources in the states that, under the
proposed stay, would continue to be subject to CAIR and/or the CAIR FIP
(i.e., the CAIR region except Minnesota). As a result, the total amount
of allowances available for sources in these states would exceed the
sum of the annual NOX trading budgets under CAIR and the
CAIR FIP for these states.
In order to preserve, under the proposed stay, the annual
NOX emission reductions that were intended to be achieved
under CAIR and the CAIR FIP and were reflected in the state annual
NOX trading budgets under those rules, EPA proposes to
require each Minnesota source with recorded allowance allocations under
the annual NOX trading program to hold an amount of
allowances issued for the same year as the recorded allowances (e.g.,
2009) equal to the amount of the recorded allocations. EPA also
proposes that the Administrator deduct, and thereby retire, these
required allowance holdings and that no additional allowance
allocations from the state annual NOx trading budget for
Minnesota be recorded.
EPA understands that at least one Minnesota source has traded some
of its recorded allowance allocations. However, EPA believes that the
most reasonable approach for removing Minnesota sources' recorded
allowance allocations from the trading program is to require these
sources to provide to the Administrator for deduction the allowances
that must be removed. Each Minnesota source would accomplish this by
continuing to hold allocated
[[Page 22149]]
allowances and, to the extent necessary to replace allocated allowances
that it traded, obtaining other allowances issued for the same year as
its traded allowances. Because all CAIR NOX allowances
issued for a given year (e.g., 2009) under the annual NOX
trading program in CAIR and the CAIR FIP are fungible, deduction of the
proper amount of CAIR NOX allowances issued for that year
has the desired effect whether the deducted allowances are Minnesota
sources' originally allocated allowances or allowances that were
obtained from other sources. EPA believes that a deadline of June 30,
2009 for Minnesota sources to hold the required allowances for
deduction would provide sufficient time for Minnesota sources to obtain
the proper amount of CAIR NOX allowances. While EPA's
preference is to remove these allowances from the trading program as
quickly as possible, the Agency will consider a later deadline if
public comments indicate that an earlier deadline places an
unreasonable burden on Minnesota sources who must re-acquire traded
allowances.
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 (EO) 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 new
obligations or enforceable duties on any state, local or tribal
governments or the private sector. Therefore, it does not impose an
information collection burden.
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 which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
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 imposes no enforceable duty on any State local or
tribal governments or the private sector. This action simply does not
impose any new obligations or enforceable duties on any state, local or
tribal governments or the private sector. 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
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
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 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 or the private sector. 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 solicits comment on this proposed rule
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 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. Thus,
Executive Order 13175 does not apply to this action.
EPA specifically solicits additional comment on this proposed
action from Tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets EO 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 EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it imposes no new requirements.
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.
[[Page 22150]]
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 OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering 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 (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 its programs,
policies, and activities on minorities and low-income populations in
the United States.
The EPA has determined that this proposed 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 regulatory requirements.
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: May 6, 2009.
Lisa P. Jackson,
Administrator.
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 proposed
to be amended as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
2. Section 51.123 is amended by adding a new paragraph (a)(3) 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)(1) * * *
(3) Notwithstanding the other provisions of this section, the
effectiveness of such provisions as they relate to the State of
Minnesota is stayed as of [the effective date of the final rule].
* * * * *
3. Section 51.124 is amended by:
a. Redesignating paragraph (a) as paragraph (a)(1); and
b. Adding a new paragraph (a)(2) 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)(1) * * *
(2) Notwithstanding the other provisions of this section, the
effectiveness of such provisions as they relate to the State of
Minnesota is stayed as of [the effective date of the final rule].
* * * * *
4. Section 51.125 is amended by adding a new paragraph (a)(3) 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, the
effectiveness of such provisions as they relate to the State of
Minnesota is stayed as of [the effective date of the final rule].
* * * * *
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
5. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
6. Section 52.35 is amended by adding a new paragraph (e) 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, the
effectiveness of such paragraph as it relates to sources in the State
of Minnesota is stayed as of [the effective date of the final rule],
except as provided in Sec. 52.1240(b)(1).
7. Section 52.36 is amended by adding a new paragraph (d) 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, the
effectiveness of such paragraph as it relates to sources in the State
of Minnesota is stayed as of [the effective date of the final rule].
8. Section 52.1240 is amended by adding a new paragraph (b) 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,
(1) The effectiveness of such paragraph as it relates to sources in
the State of Minnesota is stayed as of [the effective date of the final
rule], except that the owner and operator of each such source 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
June 30, 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 June 30, 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
[[Page 22151]]
compliance account under paragraph (b)(1) of this section.
(3) Starting no later than [the effective date of the final rule],
the Administrator will not record any allocation of CAIR NOX
allowances in the State trading budget for Minnesota for any year.
9. Section 52.1241 is amended by:
a. Redesignating the introductory text as paragraph (a); and
b. Adding a new paragraph (b) 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, the
effectiveness of such paragraph as it relates to sources in the State
of Minnesota is stayed as of [the effective date of the final rule].
[FR Doc. E9-11107 Filed 5-11-09; 8:45 am]
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