[Federal Register Volume 74, Number 228 (Monday, November 30, 2009)]
[Rules and Regulations]
[Pages 62496-62499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28416]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2009-0454; FRL-9086-2]
Approval and Promulgation of Air Quality Implementation Plans;
North Carolina; 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 North
Carolina State Implementation Plan (SIP) submitted by the State of
North Carolina through the North Carolina Department of Environment and
Natural Resources on June 20, 2008. This revision addresses the
requirements of EPA's Clean Air Interstate Rule (CAIR). Although the DC
Circuit Court found CAIR to be flawed, the rule was remanded without
vacatur and thus remains in place. EPA is continuing to approve CAIR
provisions into SIPs as appropriate. CAIR, as promulgated, requires
States to reduce emissions of sulfur dioxide (SO2) and
nitrogen oxides (NOX) that significantly contribute to, or
interfere with maintenance of, the national ambient air quality
standards (NAAQS) for fine particulates and/or
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ozone in any downwind State. CAIR establishes budgets for
SO2 and NOX in States that contribute
significantly to nonattainment of the NAAQS in downwind States and
requires the significantly contributing States to submit SIP revisions
that implement these budgets. States have the flexibility to choose
which control measures to adopt to achieve the budgets, including
participation in EPA administered cap-and-trade programs addressing
SO2, NOX annual, and NOX ozone season
emissions. In the SIP revision that EPA is approving today, North
Carolina has met the CAIR requirements by electing to participate in
the EPA-administered cap-and-trade programs addressing SO2,
NOX annual, and NOX ozone season emissions.
Consequently, this SIP revision approval will automatically replace and
withdraw the CAIR Federal Implementation Plans (FIP) currently in place
for North Carolina.
DATES: Effective Date: The final rule is effective on November 30,
2009.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R04-OAR-2009-0454. 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: Deanne Grant, 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. The telephone number is (404)
562-9291. Ms. Grant can also be reached via electronic mail at
[email protected]. For information relating to the North Carolina
SIP, please contact Ms. Nacosta Ward at (404) 562-9140. Ms. Ward can
also be reached via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. EPA's Action
II. Background
III. Final Action
IV. What Is the Effective Date?
V. Statutory and Executive Order Reviews
I. EPA's Action
EPA is taking final action to approve North Carolina's full SIP
revision, submitted on June 20, 2008, as meeting the applicable CAIR
requirements by requiring certain electric generating units (EGUs) to
participate in the EPA-administrated CAIR cap-and-trade programs
addressing SO2, NOX annual and NOX
ozone season emissions. As a consequence of the SIP approval, the CAIR
FIPs concerning SO2, NOX annual, and
NOX ozone season emissions for North Carolina are
automatically withdrawn, deleting and reserving the provisions in Part
52 that establish the CAIR FIPs for North Carolina.
EPA proposed to approve North Carolina's request to amend the SIP
on August 7, 2009 (74 FR 39592). In that proposal, EPA also stated that
upon final approval of the SIP, the FIP would be automatically
withdrawn. The comment period closed on September 8, 2009. One comment
in support of this action was received, as well as one source-specific
comment which was not directly related to the rulemaking. That source-
specific comment was withdrawn by the commenter shortly after the
public comment period closed. EPA is finalizing the approval as
proposed based on the rationale stated in the proposal and in this
final action.
II. Background
On June 20, 2008, North Carolina submitted a full SIP revision to
meet the requirements of CAIR as promulgated on May 12, 2005. The SIP
revision adopts the budgets established for the State in CAIR. The
NOX annual budget from 2009 through 2014 is 62,183 tons, and
51,819 tons from 2015 and thereafter; the NOX ozone season
budget from 2009 through 2014 is 28,392 tons, and 23,660 tons from 2015
and thereafter; and the SO2 annual budget from 2009 through
2014 is 137,342 tons, and 96,139 tons from 2015 and thereafter.
Additionally, because North Carolina has chosen to include all non-EGUs
in the State's NOX SIP call trading program, the CAIR
NOX ozone season budget will be increased annually by 2,443
tons to account for such NOX SIP Call trading sources. These
budgets are the total amounts of allowances available for allocation
for each year under EPA-administered cap-and-trade programs in North
Carolina.
EPA notes that, in North Carolina v. EPA, 531 F.3d 836 (DC Cir.
July 11, 2008) at 916-21, the Court determined, among other things,
that the State SO2 and NOX budgets 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 vs. EPA, 550 F.3d at 1178.
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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 North Carolina's SIP
revision that use the SO2 and NOX budgets set
in CAIR, EPA is also approving, as discussed below, North Carolina'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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As noted above, in accordance with 40 CFR 52.35 and 52.36, EPA's
action approving North Carolina's SIP automatically withdraws the CAIR
FIPs for SO2, NOX annual and NOX ozone
season emissions for North Carolina sources.
The August 7, 2009, notice proposed EPA's approval of North
Carolina's methodology for allocating NOX allowances for the
NOX annual and NOX ozone season trading programs,
which will be used to allocate NOX allowance to sources in
North Carolina, instead of the Federal allocation methodology provided
in the FIP. A detailed discussion of CAIR requirements, North
Carolina's CAIR submittals and EPA's rationale for approval of the
North Carolina SIP revision may be found in the proposed rulemaking
notice.
III. Final Action
EPA is taking final action to approve North Carolina's full CAIR
SIP revision submitted on June 20, 2008. Under this SIP revision, the
State is choosing to participate in the EPA-administered cap-and-trade
programs for SO2, and NOX emissions. EPA has
determined that the SIP revision meets the applicable requirements in
40 CFR 51.123(o) and (aa), with regard to NOX annual and
NOX ozone season emissions, and 40 CFR 51.124(o), with
regard to SO2 emissions. EPA has determined that the SIP as
revised will meet the requirements of CAIR. This
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action also withdraws the CAIR FIP for North Carolina.
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. This action
will allow the State to implement CAIR to include its non-electric
generating units in the NOX ozone season program, implement
its allowance allocations and remove the opt-in provisions of the FIP.
V. Statutory and Executive Order Reviews
Under the 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 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule 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).
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 29, 2010. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Electric
utilities, Intergovernmental relations, Incorporation by reference,
Carbon monoxide, Nitrogen oxides, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur dioxide.
Dated: November 17, 2009.
J. Scott Gordon,
Acting Regional Administrator, Region 4.
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40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart II--North Carolina
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2. Section 52.1770(c), Table 1 is amended, under Subchapter 2D by:
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a. Adding in numerical order revised entries in Section .2400 for
``.2403,'' ``.2405,'' ``.2412.''
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b. Adding in numerical order, new entries in Section .2400 for
``.2401,'' ``.2402,'' ``.2404,'' ``.2406,'' ``.2407,'' ``.2408,''
``.2409,'' ``.2410,'' ``.2411,'' ``.2413.''
Sec. 52.1770 Identification of plan.
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(c) * * *
Table 1--EPA Approved North Carolina Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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Subchapter 2D Air Pollution Control Requirement
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Section .2400 Clean Air Interstate Rules
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Sect. 2401................ Purpose and 5/1/08 11/30/09 [Insert
Applicability. citation of
publication].
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Sect. 2402................ Definitions.......... 5/1/08 11/30/09 [Insert
citation of
publication].
Sect .2403................ Nitrogen Oxide 5/1/08 11/30/09 [Insert
Emissions. citation of
publication].
Sect. 2404................ Sulfur Dioxide....... 5/1/08 11/30/09 [Insert
citation of
publication].
Sect. 2405................ Nitrogen Oxide 5/1/08 11/30/09 [Insert
Emissions During citation of
Ozone Season. publication].
Sect. 2406................ Permitting........... 7/1/06 11/30/09 [Insert
citation of
publication].
Sect. 2407................ Monitoring, 5/1/08 11/30/09 [Insert
Reporting, and citation of
Recordkeeping. publication].
Sect. 2408................ Trading Program and 7/1/06 11/30/09 [Insert
Banking. citation of
publication].
Sect. 2409................ Designated 5/1/08 11/30/09 [Insert
Representative. citation of
publication].
Sect. 2410................ Computation of Time.. 7/1/06 11/30/09 [Insert
citation of
publication].
Sect. 2411................ Opt-In Provisions.... 7/1/06 11/30/09 [Insert
citation of
publication].
Sect. 2412................ New Unit Growth...... 5/1/08 11/30/09 [Insert
citation of
publication].
Sect. 2413................ Periodic Review and 7/1/06 11/30/09 [Insert
Reallocations. citation of
publication].
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[FR Doc. E9-28416 Filed 11-27-09; 8:45 am]
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