[Federal Register Volume 74, Number 226 (Wednesday, November 25, 2009)]
[Rules and Regulations]
[Pages 61535-61537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28148]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 97
[EPA-R04-OAR-2009-0765; FRL-8984-6]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Implementation Plans; Tennessee; Clean Air
Interstate Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve revisions to the
Tennessee State Implementation Plan (SIP) submitted by the State of
Tennessee through the Tennessee Department of Environment and
Conservation (TDEC) on July 13, 2009. This revision incorporates
provisions related to the implementation of EPA's Clean Air Interstate
Rule (CAIR), promulgated on May 12, 2005, subsequently revised on April
28, 2006, and December 13, 2006, and the CAIR Federal Implementation
Plan (FIP) concerning sulfur dioxides (SO2), nitrogen oxides
(NOX) annual, and NOX ozone season emissions for
the State of Tennessee, promulgated on April 28, 2006, and subsequently
revised December 13, 2006.
DATES: Effective Date: This final rule is effective November 25, 2009.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2009-0765. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, i.e.,
Confidential Business Information 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 Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Twunjala Bradley, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, Region 4, U.S. Environmental Protection Agency, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. Bradley can be
reached by telephone at (404) 562-9352 and by electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. EPA's Action
II. Background
III. Final Action
IV. Effective Date
V. Statutory and Executive Order Reviews
I. EPA's Action
EPA is taking final action to approve a revision to Tennessee's
SIP, submitted by Tennessee on July 13, 2009, as clarified herein, that
is modifying the application of certain provisions of the CAIR FIP
concerning NOX ozone season emissions. (As discussed in the
notice of proposed rulemaking for this submission, this less
comprehensive CAIR SIP is termed an abbreviated SIP.) Tennessee is
subject to the CAIR FIPs that implement the CAIR requirements by
requiring certain energy generating units (EGUs) to participate in the
EPA administered CAIR cap-and-trade programs addressing SO2,
NOX annual, and NOX ozone season emissions. This
SIP revision provides a methodology for allocating NOX
allowances for the NOX ozone season trading program for
NOX SIP Call trading sources that are not EGUs as defined by
CAIR, but are subject to the CAIR NOX ozone season trading
program. The CAIR FIPs provide that this methodology will be used to
allocate NOX Ozone Season allowances to sources in
Tennessee. Consistent with the flexibility provided in the FIPs, these
provisions will also be used to replace or supplement, as appropriate,
the corresponding provisions in the CAIR FIP for Tennessee. EPA is also
approving technical corrections to the CAIR NOX Ozone Season
Trading Program opt-in provisions, as noted in the August 20, 2007,
approval. Since EPA will no longer administer the NOX Budget
Trading Program, Tennessee has chosen to terminate its Budget Trading
program rules (TAPCR Rule 1200-03-27-.06). EPA is, therefore, approving
provisions which terminate the State's NOX Budget Trading
Program because those requirements are now addressed by the CAIR
NOX Ozone Season FIP, as modified by the State's abbreviated
SIP. Finally, EPA is not making any changes to the CAIR FIP, but is
amending the appropriate appendices to note EPA's approval of
Tennessee's SIP revision.
II. Background
On February 11, 2009, Tennessee adopted a revision to its CAIR
NOX Ozone Season Trading Program, and on July 13, 2009,
submitted a request to EPA for approval of these revisions into the
SIP. That request was revised on September 21, 2009, and supplemented
by a letter to EPA dated September 24, 2009, clarifying portions of the
submittal.
The CAIR FIPs established budgets for Tennessee as 50,973 (2009-
2014) and 42,478 (2015-thereafter) tons for NOX annual
emissions, 22,842 (2009-2014) and 19,035 (2015-thereafter) tons for
NOX ozone season emissions and 137,216 (2010-2014) and
96,051 (2015-thereafter) tons for SO2 emissions. In
Tennessee's SIP revision, submitted on July 13, 2009, Tennessee has
chosen to include all NOX SIP Call trading sources that are
not EGUs under CAIR in the CAIR NOX ozone season trading
program. As a result of this SIP revision, the CAIR NOX
ozone season budget will be increased annually by 5,666 tons to account
for such NOX SIP Call trading sources. The total Tennessee
CAIR NOX ozone season budgets are therefore, 28,508 (2009-
2014) and 24,701 (2015-thereafter) tons. EPA is approving Tennessee
State trading budgets under TAPCR 1200-3-27-.11(2)(c).
EPA published a notice of proposed rulemaking to approve
Tennessee's revisions to the CAIR SIP on October 14, 2009, (74 FR
52717). EPA did not receive any comments during the public comment
period for the proposed rulemaking.
EPA notes that, in North Carolina v. EPA, 531 F.3d 836 (DC Cir.
Jul.11, 2008) at 916-21, the Court determined, among other things, that
the state SO2 and NOX
[[Page 61536]]
budget established in CAIR were arbitrary and capricious\1\. However,
the action approved today is consistent with the Court's decision to
leave CAIR in place to ``temporarily preserve the environmental values
covered by CAIR'' pending EPA's development and promulgation of a
replacement rule that remedies CAIR's flaws. North Carolina v. EPA, 550
F.3d at 1178. Pursuant to the Court's ruling, EPA is developing a new
rule that will undergo notice and comment which will result in a final
replacement rule for CAIR. In the meantime, EPA is implementing CAIR by
approving SIP revisions that are consistent with CAIR (such as the
provisions setting state SO2 and NOX budgets for
the CAIR trading programs) in order to ``temporarily preserve'' the
environmental benefits achievable under the CAIR trading programs.
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\1\ The Court also determined that the CAIR trading programs
were unlawful (id. at 906-8) and that the treatment of title IV
allowances in CAIR was unlawful (id. at 921-23). For the same
reasons that EPA is approving the provisions of Tennessee's SIP
revision that use the SO2 and NOX budgets set
in CAIR, EPA is also approving, as discussed below, Tennessee's SIP
revision to the extent the SIP revision adopts the CAIR trading
programs, including the provisions addressing applicability,
allowance allocations, and use of title IV allowances.
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III. Final Action
EPA is taking final action to approve Tennessee's SIP revision that
includes an abbreviated CAIR SIP submitted on July 13, 2009, as
clarified herein. Tennessee is covered by the CAIR FIPs which require
participation in the EPA administered CAIR FIP cap and trade programs
for SO2, NOX annual, and NOX ozone
season emissions. Under this SIP revision and consistent with the
flexibility given to the States in the FIPs, EPA is approving
Tennessee's CAIR NOX ozone season provisions expanding the
current applicability provisions in the CAIR NOX ozone
season trading program to include units that are not otherwise subject
to the trading program but are subject to Tennessee's NOX
Budget Trading Program; revisions to the allocation methodology
provisions (interpreted as discussed above) in the CAIR NOX
ozone season trading program to cover these units; and corrections to
the CAIR NOX ozone season trading program opt-in provisions
(as discussed above).
As provided for in the CAIR FIP, the provisions in the abbreviated
SIP revision will replace or supplement the corresponding provisions of
the CAIR FIPs in Tennessee. The abbreviated SIP revision meets the
applicable requirements in 40 CFR 51.123(ee), with regard to
NOX ozone season emissions. EPA is not making any changes to
the CAIR FIP, but is amending the appropriate appendices to note EPA's
approval of Tennessee's SIP revision.
This action also approves the termination of the State's
NOX Budget Trading Program as discussed in Section 1.
IV. What Is the Effective Date
An expedited effective date for this action is authorized under
both 5 U.S.C. 553(d)(1), which provides that rule actions may become
effective less than 30 days after publication if the rule ``grants or
recognizes an exemption or relieves a restriction'' and section 5
U.S.C. 553(d)(3), which allows an effective date less than 30 days
after publication ``as otherwise provided by the agency for good cause
found and published with the rule.'' EPA finds that there is good cause
for this approval to become effective upon publication.
CAIR SIP approvals relieve States and CAIR sources within States
from being subject to provisions in the CAIR FIPs that otherwise would
apply to them, allowing States to implement CAIR based on their SIP-
approved State rule. The relief from these obligations is sufficient
reason to allow an expedited effective date of the rule under 5 U.S.C.
553(d)(1). In addition, Tennessee's relief from these obligations
provides good cause to make this rule effective immediately upon
publication, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day
waiting period prescribed in 5 U.S.C. 553(d) is to give affected
parties a reasonable time to adjust their behavior and prepare before
the final rule takes effect. Where, as here, the final rule relieves
obligations rather than imposes obligations, affected parties, such as
the State of Tennessee and CAIR sources within the State, do not need
time to adjust and prepare before the rule takes effect.
V. Statutory and Executive Order Reviews
Under the Clean Air Act (CAA), the Administrator is required to
approve a SIP submission that complies with the provisions of the Act
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the CAA. Accordingly,
this action merely approves State law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
State law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 1312 (64 FR 43255, August 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because applications of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
[[Page 61537]]
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 25, 2010. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2) of the CAA.)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Electric
utilities, Intergovernmental relations, Incorporation by reference,
Carbon monoxide, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur dioxide.
40 CFR Part 97
Environmental protection, Air pollution control, Electric
utilities, Intergovernmental relations, Incorporation by reference,
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur dioxide.
Dated: November 16, 2009.
J. Scott Gordon,
Acting Regional Administrator, Region 4.
0
40 CFR parts 52 and 97 are amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart RR--Tennessee
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2. In Sec. 52.2220(c), Table 1 is amended under Chapter 1200-3-27, by
revising the entry for ``Section 1200-3-27.11'' to read as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
Table 1--EPA-Approved Tennessee Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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* * * * * * *
Chapter 1200-3-27 Nitrogen Oxides
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* * * * * * *
Section 1200-3-27.11.............. CAIR NOX Ozone Season 10/4/09 11/25/09 [Insert ..............
Trading Program. citation of
publication].
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* * * * *
PART 97--[AMENDED]
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3. The authority citation for part 97 continues to read as follows:
Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et
seq.
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4. Appendix A to Subpart AAAA is amended by adding the entry
``Tennessee'' in alphabetical order to read as follows:
Appendix A to Subpart AAAA of Part 97--States With Approved State
Implementation Plan Revisions Concerning Applicability
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Tennessee
[FR Doc. E9-28148 Filed 11-24-09; 8:45 am]
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