[Federal Register Volume 82, Number 184 (Monday, September 25, 2017)]
[Rules and Regulations]
[Pages 44525-44527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20341]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2016-0574; FRL-9968-15-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Removal of Clean Air Interstate Rule Trading Programs
Replaced by Cross-State Air Pollution Rule Trading Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to approve two state implementation plan (SIP) revisions
submitted by the State of West Virginia. These revisions pertain to two
West Virginia regulations that established trading programs under the
Clean Air Interstate Rule (CAIR). The EPA-administered trading programs
under CAIR were discontinued on December 31, 2014 upon the
implementation of the Cross-State Air Pollution Rule (CSAPR), which was
promulgated by EPA to replace CAIR. CSAPR established federal
implementation plans (FIPs) for 23 states, including West Virginia. The
submitted SIP revisions request removal of regulations that implemented
the CAIR annual nitrogen oxide (NOX) and annual sulfur
dioxide (SO2) trading programs from the West Virginia SIP
(as CSAPR has supplanted CAIR). West Virginia's SIP revision submittal
requesting removal of a regulation that implemented the CAIR ozone
season trading program will be addressed in a separate action. EPA is
approving these SIP revisions in accordance with the requirements of
the Clean Air Act (CAA).
DATES: This rule is effective on December 26, 2017 without further
notice, unless EPA receives adverse written comment by October 25,
2017. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2016-0574 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by
email at [email protected].
SUPPLEMENTARY INFORMATION: On July 13, 2016, the State of West
Virginia, through the West Virginia Department of Environmental
Protection (WVDEP), submitted three SIP revisions requesting EPA remove
from its SIP three regulations that implemented the CAIR (70 FR 25162,
May 12, 2005) trading programs: Regulation 45CSR39--Control of Annual
Nitrogen Oxides Emissions, Regulation 45CSR40--Control of Ozone Season
Nitrogen Oxides Emissions, and Regulation 45CSR41--Control of Annual
Sulfur Dioxide Emissions. This action pertains to the two submittals
that remove 45CSR39 and 45CSR41, the CAIR annual NOX and
annual SO2 trading programs, respectively, from the West
Virginia SIP. The submittal pertaining to removal of the CAIR ozone
season NOX trading program is not a part of this action and
will be addressed in a separate action.
I. Background
In 2005, EPA promulgated CAIR (70 FR 25162, May 12, 2005) to
address transported emissions that significantly contributed to
downwind states' nonattainment and interfered with maintenance of the
1997 ozone and fine particulate matter (PM2.5) national
ambient air quality standards (NAAQS). CAIR required 28 states,
including West Virginia, to reduce emissions of NOX and
SO2, precursors to the formation of ambient ozone and
PM2.5. Under CAIR, EPA established federal implementation
plans (FIPs) comprised of separate cap and trade programs for annual
NOX, ozone season NOX, and annual SO2.
States could comply with the requirements of CAIR by remaining on the
FIP, which applied only to electric generating units (EGUs), or by
submitting a CAIR SIP revision that included as trading sources EGUs
and certain non-EGUs \1\ that formerly traded in the NOX
Budget Trading Program under the NOX SIP Call.\2\ West
Virginia submitted, and EPA approved, a CAIR SIP revision that included
EGUs and certain non-EGUs as part of the State's regulation for the
CAIR ozone season trading program as well as EGUs in the CAIR annual
trading program for NOX and SO2. See 74 FR 38536
(August 4, 2009).
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\1\ These non-EGUs are defined in the NOX SIP Call as
stationary, fossil fuel-fired boilers, combustion turbines, or
combined cycle systems with a maximum design heat input greater than
250 million British thermal units per hour (MMBtu/hr).
\2\ In October 1998, EPA finalized the ``Finding of Significant
Contribution and Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of Reducing Regional
Transport of Ozone''--commonly called the NOX SIP Call.
See 63 FR 57356 (October 27, 1998).
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The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially vacated CAIR in 2008,\3\ but
ultimately remanded the rule to EPA without vacatur to preserve the
environmental benefits provided by CAIR.\4\ The ruling allowed CAIR to
remain in effect temporarily until a replacement rule consistent with
the Court's opinion was developed. While EPA worked on developing a
replacement rule, the CAIR program continued as planned with the
NOX annual and ozone season programs
[[Page 44526]]
beginning in 2009 and the SO2 annual program beginning in
2010.
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\3\ North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
\4\ North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008).
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On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's
remand, EPA promulgated the CSAPR to replace CAIR to address the
interstate transport of emissions contributing to nonattainment and
interfering with maintenance of the two air quality standards covered
by CAIR as well as the 2006 PM2.5 NAAQS. The rule also
contained provisions that would sunset CAIR-related obligations on a
schedule coordinated with the implementation of CSAPR compliance
requirements. CSAPR was to become effective January 1, 2012; however,
the timing of CSAPR's implementation was impacted by a number of court
actions.
Numerous parties filed petitions for review of CSAPR in the D.C.
Circuit, and on December 30, 2011, the D.C. Circuit stayed CSAPR prior
to its implementation and ordered EPA to continue administering CAIR on
an interim basis.\5\ On August 21, 2012, the court issued its ruling,
vacating and remanding CSAPR to EPA and ordering continued
implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696
F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was
reversed by the United States Supreme Court on April 29, 2014, and the
case was remanded to the D.C. Circuit to resolve remaining issues in
accordance with the Supreme Court's ruling. EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit
affirmed CSAPR in most respects.
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\5\ Order of Dec. 30, 2011, in EME Homer City Generation, L.P.
v. EPA, D.C. Cir. No. 11-1302.
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Throughout the initial round of D.C. Circuit proceedings and the
ensuing Supreme Court proceedings, the stay on CSAPR remained in place,
and EPA continued to implement CAIR. Following the April 2014 Supreme
Court decision, EPA filed a motion asking the D.C. Circuit to lift the
stay in order to allow CSAPR to replace CAIR in an equitable and
orderly manner while further D.C. Circuit proceedings were held to
resolve remaining claims from petitioners. Additionally, EPA's motion
requested delay, by three years, of all CSAPR compliance deadlines that
had not passed as of the approval date of the stay. On October 23,
2014, the D.C. Circuit granted EPA's request,\6\ and on December 3,
2014 (79 FR 71663), in an interim final rule, EPA set the updated
effective date of CSAPR as January 1, 2015 and delayed the
implementation of CSAPR Phase I to 2015 and CSAPR Phase 2 to 2017. In
accordance with the interim final rule, the sunset date for CAIR was
December 31, 2014, and EPA began implementing CSAPR on January 1, 2015.
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\6\ Order, Document #1518738, EME Homer City Generation, L.P. v.
EPA, No. 11-1302 (D.C. Cir. issued Oct. 23, 2014).
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Starting in January 2015, the CSAPR FIP trading programs for annual
NOX, ozone season NOX and annual SO2
were applicable in West Virginia. Thus, since January 1, 2015, the West
Virginia regulations, 45CSR39 and 45CSR41, that implemented the CAIR
trading programs became obsolete with none of these obsolete programs
providing any emission reductions.\7\
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\7\ EPA notes that 45CSR40--Control of Ozone Season Nitrogen
Oxides Emissions is also obsolete and not affecting emission
reductions. However, EPA will act on West Virginia's request to
remove 45CSR40 from the SIP in a separate action.
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II. Summary of SIP Revisions and EPA Analysis
WVDEP submitted two SIP revisions on July 13, 2016 that requested
the removal from the West Virginia SIP of the State's regulations
(45CSR39 and 45CSR41) which implemented respectively the CAIR annual
NOX and annual SO2 trading programs. As noted
previously, the annual NOX and SO2 reduction
programs to address interstate transport of emissions from EGUs for the
1997 and 2006 PM2.5 NAAQS have been replaced by the CSAPR
FIP. Because the removal of 45CSR39 and 41 remove moot CAIR provisions
which have been replaced by CSAPR which is at least as stringent as
CAIR, the removal of 45CSR39 and 41 from the West Virginia SIP has no
expected emissions impact on any pollutant and thus is not expected to
interfere with reasonable further progress, any NAAQS or any other CAA
requirement. The removal of 45CSR39 and 41 from the West Virginia SIP
is in accordance with section 110(l) of the CAA. Therefore, EPA
determines it is appropriate for these two regulations to be removed in
their entirety from the West Virginia SIP as the regulations contain
obsolete provisions which no longer provide any emission limitations
on, or reductions of, any pollutant.
III. Final Action
EPA is approving the two July 13, 2016 West Virginia SIP revision
submissions which seek removal from the West Virginia SIP of Regulation
45CSR39 that implemented the CAIR annual NOX trading program
and Regulation 45CSR41 that implemented the CAIR annual SO2
trading program. Removal of these two regulations from the West
Virginia SIP is in accordance with section 110 of the CAA. EPA is
publishing this rule without prior proposal because EPA views this as a
noncontroversial amendment and anticipates no adverse comment. However,
in the ``Proposed Rules'' section of this issue of the Federal
Register, EPA is publishing a separate document that will serve as the
proposal to approve the SIP revision if adverse comments are filed.
This rule will be effective on December 26, 2017 without further notice
unless EPA receives adverse comment by October 25, 2017. If EPA
receives adverse comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. EPA will address all public comments in a subsequent final rule
based on the proposed rule. EPA will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time. Please note that if EPA receives adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, EPA may adopt as final those
provisions of the rule that are not the subject of an adverse comment.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
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);
[[Page 44527]]
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 removing West Virginia regulations 45CSR39
and 45CSR41 from the West Virginia SIP 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.
B. Submission to Congress and the Comptroller General
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.
C. Petitions for Judicial Review
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 November 24, 2017. 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of this issue of the Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking action.
This action approving West Virginia SIP revision submittals to
remove obsolete CAIR annual trading program provisions 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: September 11, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart XX--West Virginia
Sec. 52.2520 [Amended]
0
2. In Sec. 52.2520, the first table in paragraph (c) is amended by:
0
a. Removing the table heading and the entries for ``[45 CSR] Series
39''.
0
b. Removing the table heading and the entries for ``[45 CSR] Series
41''.
[FR Doc. 2017-20341 Filed 9-22-17; 8:45 am]
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