Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Clean Air Interstate Rule, 27731-27737 [E9-13725]
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was delinquent for a period of less than
ten years. The amendment to the law
allows for the collection of debt by
offsetting nontax payments without any
time limitation and applies to any debt
outstanding on or after the date of the
enactment of the Act.
Although this statutory change does
not directly apply to the offset of tax
refund payments, we are nevertheless
proposing to amend this regulation to
mirror the statutory change because the
regulatory time limitation contained in
this regulation was intended to create
uniformity in the way non-judicial
offsets were conducted. Because there
was no logical reason why the ten-year
limitation applicable to the offset of
nontax payments should not apply to
non-judicial offsets under other statutes
which did not contain their own
limitations period, this regulation
applied a ten-year limitation on the
collection of debt by tax refund offset.
However, now that the ten-year
limitation has been eliminated for the
offset of nontax payments, the rationale
for including a ten-year limitation in
this rule no longer applies.
The proposed changes to this rule
remove the limitations period by
explicitly stating that no time limitation
shall apply, and explain that by
removing the time limitation, all debts,
including debts that were ineligible for
collection by offset prior to the removal
of the limitations period, may now be
collected by tax refund offset.
Additionally, to avoid any undue
hardship, we are proposing the addition
of a notice requirement applicable to
debts that were previously ineligible for
collection by offset because they had
been outstanding for more than ten
years. For these debts, creditor agencies
must certify to FMS that a notice of
intent to offset was sent to the debtor
after the debt became ten years
delinquent. This notice of intent to
offset is intended to alert the debtor that
his debt may now be collected by offset
and allows the debtor additional
opportunities to dispute the debt, enter
into a repayment agreement or
otherwise avoid offset. This requirement
will apply even in a case where notice
was sent prior to the debt becoming ten
years old. This requirement applies only
with respect to debts that were
previously ineligible for collection by
offset because of the time limitation and
does not apply to debts, such as
Department of Education student loan
debts, that could be collected by offset
without regard to any time limitation
prior to this regulatory change.
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II. Procedural Analyses
Request for Comment on Plain Language
Executive Order 12866 requires each
agency in the Executive branch to write
regulations that are simple and easy to
understand. We invite comment on how
to make the proposed rule clearer. For
example, you may wish to discuss: (1)
Whether we have organized the material
to suit your needs; (2) whether the
requirements of the rules are clear; or (3)
whether there is something else we
could do to make these rules easier to
understand.
Regulatory Planning and Review
The proposed rule does not meet the
criteria for a ‘‘significant regulatory
action’’ as defined in Executive Order
12866. Therefore, the regulatory review
procedures contained therein do not
apply.
Regulatory Flexibility Act Analysis
It is hereby certified that the proposed
rule will not have a significant
economic impact on a substantial
number of small entities. This rule
merely removes the ten-year time
limitation on the collection of debts by
tax refund offset. Moreover, the
provisions contained in this proposed
rule would primarily affect federal
creditor agencies and impose no
additional costs to small entities.
Accordingly, a regulatory flexibility
analysis under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) is
not required.
List of Subjects in 31 CFR Part 285
Administrative practice and
procedure, Child support, Child welfare,
Claims, Credits, Debts, Disability
benefits, Federal employees,
Garnishment of wages, Hearing and
appeal procedures, Loan programs,
Privacy, Railroad retirement, Railroad
unemployment insurance, Salaries,
Social Security benefits, Supplemental
Security Income (SSI), Taxes, Veterans’
benefits, Wages.
For the reasons set forth in the
preamble, we propose to amend 31 CFR
part 285 as follows:
PART 285—DEBT COLLECTION
AUTHORITIES UNDER THE DEBT
COLLECTION IMPROVEMENT ACT OF
1996
27731
2. In § 285.2, remove paragraph
(d)(1)(ii), redesignate paragraphs
(d)(1)(iii) through (d)(1)(v) as paragraphs
(d)(1)(ii) through (d)(1)(ii) through
(d)(1)(iv) respectively, and add
paragraph (d)(6) as follows:
§ 285.2 Offset of tax refund payments to
collect past-due, legally enforceable nontax
debt.
*
*
*
*
*
(d) * * *
(6)(i) Creditor agencies may submit
debts to FMS for collection by tax
refund offset irrespective of the amount
of time the debt has been outstanding.
Accordingly, all nontax debts, including
debts that were delinquent for ten years
or longer prior to [INSERT DATE 30
DAYS AFTER PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER] may be collected by tax
refund offset.
(ii) For debts outstanding more than
ten years on or before [INSERT DATE 30
DAYS AFTER PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER], creditor agencies must
certify to FMS that the notice of intent
to offset described in paragraph
(d)(1)(iii)(B) of this section was sent to
the debtor after the debt became ten
years delinquent. This requirement will
apply even in a case where notice was
also sent prior to the debt becoming ten
years delinquent, but does not apply to
any debt that could be collected by
offset without regard to any time
limitation prior to [INSERT DATE 30
DAYS AFTER PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER].
*
*
*
*
*
Dated: May 29, 2009.
Gary Grippo,
Acting Fiscal Assistant Secretary.
[FR Doc. E9–13604 Filed 6–10–09; 8:45 am]
BILLING CODE 4810–35–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2009–0033; FRL–8916–8]
Approval and Promulgation of Air
Quality Implementation Plans; West
Virginia; Clean Air Interstate Rule
1. The authority citation for part 285
continues to read as follows:
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
Authority: 5 U.S.C. 5514; 26 U.S.C. 6402;
31 U.S.C. 321, 3701, 3711, 3716, 3719,
3720A, 3720B, 3720D; 42 U.S.C. 664; E.O.
13019, 61 FR 51763, 3 CFR, 1996 Comp., p.
216.
SUMMARY: EPA is proposing to approve
a revision to the West Virginia State
Implementation Plan (SIP). This
revision addresses the requirements of
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EPA’s Clean Air Interstate Rule (CAIR),
and recodifies and revises provisions
pertaining to internal combustion
engines and cement kilns that are
subject to the nitrogen oxides (NOX) SIP
Call. Although the D.C. Circuit found
CAIR to be flawed, the rule was
remanded without vacatur and thus
remains in place. Thus, EPA is
continuing to take action on CAIR 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
ozone in any downwind state. CAIR
establishes budgets for SO2 and NOX for
States that contribute significantly to
nonattainment 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 EPAadministered cap-and-trade programs
addressing SO2, NOX annual, and NOX
ozone season emissions. In the SIP
revision that EPA is proposing to
approve, West Virginia will meet CAIR
requirements by participating in these
cap-and-trade programs. EPA is
proposing to approve the SIP revision,
as interpreted and clarified herein, as
fully implementing the CAIR
requirements for West Virginia.
DATES: Written comments must be
received on or before July 13, 2009.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2009–0033 by one of the
following methods:
A. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
B. E-mail:
fernandez.cristina@epa.gov.
C. Mail: EPA–R03–OAR–2009–0033,
Cristina Fernandez, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S.
Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previouslylisted EPA Region III address. 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–R03–OAR–2009–
0033. EPA’s policy is that all comments
received will be included in the public
docket without change, and may be
made available online at https://
www.regulations.gov, including any
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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 https://
www.regulations.gov or e-mail. The
https://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 https://
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, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the
electronic docket are listed in the
https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
i.e., 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 in https://
www.regulations.gov or in hard copy
during normal business hours at the Air
Protection Division, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103. Copies of the State submittal are
available at the West Virginia
Department of Environmental
Protection, Division of Air Quality, 601
57th Street, SE., Charleston, West
Virginia 25304.
FOR FURTHER INFORMATION CONTACT:
Marilyn Powers, (215) 814–2308, or by
e-mail at powers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action Is EPA Proposing?
II. What Is the Regulatory History of CAIR
and the CAIR Federal Implementation
Plans (FIPs)?
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III. What Are the General Requirements of
CAIR and the CAIR FIPs?
IV. What Are the Types of CAIR SIP
Submittals?
V. Analysis of West Virginia’s CAIR SIP
Submittal
A. State Budgets for Allowance Allocations
B. CAIR Cap-and-Trade Programs
C. Applicability Provisions
D. NOX Allowance Allocations
E. Allocation of NOX Allowances from
Compliance Supplement Pool
F. Individual Opt-in Units
G. Additional Interpretations
VI. Proposed Action
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing?
EPA is proposing to approve the SIP
revision submitted by West Virginia on
April 22, 2008, as interpreted and
clarified herein, as meeting the
applicable CAIR requirements by
requiring certain electric generating
units (EGUs) to participate in the EPAadministered CAIR cap-and-trade
programs addressing SO2, NOX annual,
and NOX ozone season emissions. EPA
is also proposing to approve
recodification and revision of provisions
that address NOX ozone season emission
reduction requirements for internal
combustion engines and cement kilns,
updated only to revise NOX SIP Call
references to CAIR references. These
provisions for internal combustion
engines and cement kilns were
previously approved as part of West
Virginia regulation 45CSR1. 45CSR1 set
forth the requirements for both: nonEGUs that were part of the NOX Budget
Trading Program, and non-EGUs that
were not part of the trading program but
instead had specific emission
requirements. EPA will no longer
administer the NOX Budget Trading
program after 2008, therefore West
Virginia chose to sunset its NOX Budget
Trading Program rules by repealing
45CSR1 and 45CSR26 (which applied to
EGUs) in their entirety. The units that
participated in the NOX Budget Trading
Program in 45CSR1 and 45CSR26 will
now be subject to the requirements of
the CAIR trading program, as proposed
in this action. The provisions for
internal combustion engines and cement
kilns have been recodified into separate
sections of 45CSR40 (sections 45–40–90
and 45–40–100, respectively).
II. What Is the Regulatory History of the
CAIR and the CAIR FIPs?
EPA published CAIR on May 12, 2005
(70 FR 25162). In this rule, EPA
determined that 28 States and the
District of Columbia contribute
significantly to nonattainment and
interfere with maintenance of the
NAAQS for fine particles (PM2.5) and/or
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8-hour ozone in downwind States in the
eastern part of the country. As a result,
EPA required those upwind States to
revise their SIPs to include control
measures that reduce emissions of SO2,
which is a precursor to PM2.5 formation,
and/or NOX, which is a precursor to
both ozone and PM2.5 formation. For
jurisdictions that contribute
significantly to downwind PM2.5
nonattainment, CAIR sets annual Statewide emission reduction requirements
(i.e., budgets) for SO2 and annual Statewide emission reduction requirements
for NOX. Similarly, for jurisdictions that
contribute significantly to 8-hour ozone
nonattainment, CAIR sets State-wide
emission reduction requirements or
budgets for NOX for the ozone season
(May 1st to September 30th). Under
CAIR, States may implement these
reduction requirements by participating
in the EPA-administered cap-and-trade
programs or by adopting any other
control measures.
CAIR explains to subject States what
must be included in SIPs to address the
requirements of section 110(a)(2)(D) of
the Clean Air Act (CAA) with regard to
interstate transport with respect to the
8-hour ozone and PM2.5 NAAQS. EPA
made national findings, effective on
May 25, 2005, that the States had failed
to submit SIPs meeting the requirements
of section 110(a)(2)(D). The SIPs were
due in July 2000, 3 years after the
promulgation of the 8-hour ozone and
PM2.5 NAAQS. These findings started a
2-year clock for EPA to promulgate a FIP
to address the requirements of section
110(a)(2)(D). Under CAA section
110(c)(1), EPA may issue a FIP anytime
after such findings are made and must
do so within two years unless a SIP
revision correcting the deficiency is
approved by EPA before the FIP is
promulgated.
On April 28, 2006, EPA promulgated
FIPs for all States covered by CAIR in
order to ensure the emissions reductions
required by CAIR are achieved on
schedule. The CAIR FIPs require EGUs
to participate in the EPA-administered
CAIR SO2, NOX annual, and NOX ozone
season trading programs, as appropriate.
The CAIR FIP SO2, NOX annual, and
NOX ozone season trading programs
impose essentially the same
requirements as, and are integrated
with, the respective CAIR SIP trading
programs. The integration of the FIP and
SIP trading programs means that these
trading programs will work together to
create effectively a single trading
program for each regulated pollutant
(SO2, NOX annual, and NOX ozone
season) in all States covered by the
CAIR FIP or SIP trading program for that
pollutant. Further, as provided in a rule
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published by EPA on November 7, 2007,
a State’s CAIR FIPs are automatically
withdrawn when EPA approves a SIP
revision, in its entirely and without any
conditions, as fully meeting the
requirements of CAIR. Where only
portions of the SIP revision are
approved, the corresponding portions of
the FIPs are automatically withdrawn
and the remaining portions of the FIP
stay in place. Finally, the CAIR FIPs
also allow States to submit abbreviated
SIP revisions that, if approved by EPA,
will automatically replace or
supplement certain CAIR FIP provisions
(e.g., the methodology for allocating
NOX allowances to sources in the State),
while the CAIR FIP remains in place for
all other provisions.
On April 28, 2006, EPA published
two additional CAIR-related final rules
that added the States of Delaware and
New Jersey to the list of States subject
to CAIR for PM2.5 and announced EPA’s
final decisions on reconsideration of
five issues, without making any
substantive changes to the CAIR
requirements.
On October 19, 2007, EPA amended
CAIR and the CAIR FIPs to clarify the
definition of ‘‘cogeneration unit’’ and
thus the applicability of the CAIR
trading program to cogeneration units.
There are no sources in West Virginia
that are affected by the clarification of
this definition, however, West Virginia
must still revise their rules to address
this clarification and submit the revised
rule as a SIP revision.
EPA was sued by a number of parties
on various aspects of CAIR, and on July
11, 2008, the U.S. Court of Appeals for
the District of Columbia Circuit issued
its decision to vacate and remand both
CAIR and the associated CAIR FIPs in
their entirety. North Carolina v. EPA,
531 F.3d 836 (DC Cir. Jul. 11, 2008).
However, in response to EPA’s petition
for rehearing, the Court issued an order
remanding CAIR to EPA without
vacating either CAIR or the CAIR FIPs.
North Carolina v. EPA, 550 F.3d 1176
(DC Cir. Dec. 23, 2008). The Court
thereby left CAIR in place in order to
‘‘temporarily preserve the
environmental values covered by CAIR’’
until EPA replaces it with a rule
consistent with the Court’s opinion. Id.
at 1178. The Court directed EPA to
‘‘remedy CAIR’s flaws’’ consistent with
its July 11, 2008 opinion, but declined
to impose a schedule on EPA for
completing that action. Id. Therefore,
CAIR and the CAIR FIP are currently in
effect in West Virginia.
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27733
III. What Are the General Requirements
of CAIR and the CAIR FIPs?
CAIR establishes State-wide emission
budgets for SO2 and NOX and is to be
implemented in two phases. The first
phase of NOX reductions starts in 2009
and continues through 2014, while the
first phase of SO2 reductions starts in
2010 and continues through 2014. The
second phase of reductions for both
NOX and SO2 starts in 2015 and
continues thereafter. CAIR requires
States to implement the budgets by
either: (1) Requiring EGUs to participate
in the EPA-administered cap-and-trade
programs; or (2) adopting other control
measures of the State’s choosing and
demonstrating that such control
measures will result in compliance with
the applicable State SO2 and NOX
budgets.
The May 12, 2005 and April 28, 2006
CAIR rules provide model rules that
States must adopt (with certain limited
changes, if desired) if they want to
participate in the EPA-administered
trading programs.
With two exceptions, only States that
choose to meet the requirements of
CAIR through methods that exclusively
regulate EGUs are allowed to participate
in the EPA-administered trading
programs. One exception is for States
that adopt the opt-in provisions of the
model rules to allow non-EGUs
individually to opt into the EPAadministered trading programs. The
other exception is for States that include
all non-EGUs from their NOX SIP Call
trading programs in their CAIR NOX
ozone season trading programs.
IV. What Are the Types of CAIR SIP
Submittals?
States have the flexibility to choose
the type of control measures they will
use to meet the requirements of CAIR.
EPA anticipates that most States will
choose to meet the CAIR requirements
by selecting an option that requires
EGUs to participate in the EPAadministered CAIR cap-and-trade
programs. For such States, EPA has
provided two approaches for submitting
and obtaining approval for CAIR SIP
revisions. States may submit full SIP
revisions that adopt the model CAIR
cap-and-trade rules. If approved, these
SIP revisions will fully replace the CAIR
FIPs. Alternatively, States may submit
abbreviated SIP revisions. These SIP
revisions will not replace the CAIR FIPs;
however, the CAIR FIPs provide that,
when approved, the provisions in these
abbreviated SIP revisions will be used
instead of or in conjunction with, as
appropriate, the corresponding
provisions of the CAIR FIPs (e.g., the
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NOX allowance allocation
methodology).
A State submitting a full SIP revision
may either adopt regulations that are
substantively identical to the model
rules or incorporate by reference the
model rules. CAIR provides that States
may only make limited changes to the
model rules if the States want to
participate in the EPA-administered
trading programs. A full SIP revision
may change the model rules only by
altering their applicability and
allowance allocation provisions to:
1. Include all NOX SIP Call trading
sources that are not EGUs under CAIR
in the CAIR NOX ozone season trading
program;
2. Provide for State allocation of NOX
annual or ozone season allowances
using a methodology chosen by the
State;
3. Provide for State allocation of NOX
annual allowances from the compliance
supplement pool (CSP) using the State’s
choice of allowed, alternative
methodologies; or
4. Allow units that are not otherwise
CAIR units to opt individually into the
CAIR SO2, NOX annual, or NOX ozone
season trading programs under the optin provisions in the model rules. An
approved CAIR full SIP revision
addressing EGUs’ SO2, NOX annual, or
NOX ozone season emissions will
replace the CAIR FIP for that State for
the respective EGU emissions. As
discussed above, EPA approval in full,
without any conditions, of a CAIR full
SIP revision causes the CAIR FIPs to be
automatically withdrawn.
V. Analysis of West Virginia’s CAIR SIP
Submittal
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A. State Budgets for Allowance
Allocations
The CAIR NOX annual and ozone
season budgets were developed from
historical heat input data for EGUs.
Using these data, EPA calculated annual
and ozone season regional heat input
values, which were multiplied by 0.15
lb/mmBtu, for phase 1 and 0.125 lb/
mmBtu, for phase 2, to obtain regional
NOX budgets for 2009–2014 and for
2015 and thereafter, respectively. EPA
derived the State NOX annual and ozone
season budgets from the regional
budgets using State heat input data
adjusted by fuel factors.
The CAIR State SO2 budgets were
derived by discounting the tonnage of
emissions authorized by annual
allowance allocations under the Acid
Rain Program under title IV of the CAA.
Under CAIR, each allowance allocated
in the Acid Rain Program for the years
in phase 1 of CAIR (2010 through 2014)
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authorizes 0.5 ton of SO2 emissions in
the CAIR trading program, and each
Acid Rain Program allowance allocated
for the years in phase 2 of CAIR (2015
and thereafter) authorizes 0.35 ton of
SO2 emissions in the CAIR trading
program.
In today’s action, EPA is proposing to
approve West Virginia’s SIP revision
that adopts the budgets established for
the State in CAIR. These budgets are:
74,220 tons for NOX annual emissions
from 2009 through 2014 and 61,850 tons
from 2015 and thereafter; 26,859 tons
for NOX ozone season emissions from
2009 through 2014 and 26,525 tons from
2015 and thereafter; and 215,881 tons
for SO2 annual emissions from 2009
through 2014 and 151,117 tons from
2015 and thereafter. Additionally, the
CAIR NOX ozone season budget would
be increased annually by 2,184 tons to
account for NOX SIP Call trading
sources that are not EGUs under CAIR,
but are included in the CAIR NOX ozone
season trading program. West Virginia’s
SIP revision sets these budgets as the
total amounts of allowances available
for allocation for each year under the
EPA-administered cap-and-trade
programs.
EPA notes that, in North Carolina, id.
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, as
discussed above, the Court also decided
to remand CAIR but to leave the rule in
place in order to ‘‘temporarily preserve
the environmental values covered by
CAIR’’ pending EPA’s development and
promulgation of a replacement rule that
remedies CAIR’s flaws. Id. at 1178. EPA
had indicated to the Court that
development and promulgation of a
replacement rule would take about two
years. Reply in Support of Petition for
Rehearing or Rehearing en Banc at 5
(filed Nov. 17, 2008 in North Carolina
v. EPA, Case No. 05–1224, DC Cir.). The
process at EPA of developing a proposal
that will undergo notice and comment
and result in a final replacement rule is
ongoing. In the meantime, consistent
with the Court’s orders, EPA is
implementing CAIR by approving State
SIP revisions that are consistent with
CAIR (such as the provisions setting
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 proposing approval of the provisions of West
Virginia’s SIP revision that use the SO2 and NOX
budgets set in CAIR, EPA is also proposing
approval, as discussed below, of West Virginia’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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State SO2 and NOX budgets for the CAIR
trading programs) in order to
‘‘temporarily preserve’’ the
environmental benefits achievable
under the CAIR trading programs. North
Carolina, 550 F.3d at 1178.
B. CAIR Cap-and-Trade Programs
The CAIR NOX annual and ozoneseason model trading rules both largely
mirror the structure of the NOX SIP Call
model trading rule in 40 CFR part 96,
subparts A through I. While the
provisions of the NOX annual and
ozone-season model rules are similar,
there are some differences. For example,
the NOX annual model rule (but not the
NOX ozone season model rule) provides
for a CSP, which is discussed below,
and under which allowances may be
awarded for early reductions of NOX
annual emissions. As a further example,
the NOX ozone season model rule
reflects the fact that the CAIR NOX
ozone season trading program replaces
the NOX SIP Call trading program after
the 2008 ozone season and is
coordinated with the NOX SIP Call
program. The NOX ozone season model
rule provides incentives for early
emissions reductions by allowing
banked, pre-2009 NOX SIP Call
allowances to be used for compliance in
the CAIR NOX ozone-season trading
program. In addition, States have the
option of continuing to meet their NOX
SIP Call requirement by participating in
the CAIR NOX ozone season trading
program and including all their NOX SIP
Call trading sources in that program.
The provisions of the CAIR SO2
model rule are also similar to the
provisions of the NOX annual and ozone
season model rules. However, the SO2
model rule is coordinated with the
ongoing Acid Rain SO2 cap-and-trade
program under CAA title IV. The SO2
model rule uses the title IV allowances
for compliance, with each allowance
allocated for 2010–2014 authorizing
only 0.50 ton of emissions and each
allowance allocated for 2015 and
thereafter authorizing only 0.35 ton of
emissions. Banked title IV allowances
allocated for years before 2010 can be
used at any time in the CAIR SO2 capand-trade program, with each such
allowance authorizing 1 ton of
emissions. Title IV allowances are to be
freely transferable among sources
covered by the Acid Rain Program and
sources covered by the CAIR SO2 capand-trade program.
EPA also used the CAIR model
trading rules as the basis for the trading
programs in the CAIR FIPs. The CAIR
FIP trading rules are virtually identical
to the CAIR model trading rules, with
changes made to account for Federal
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rather than State implementation. The
CAIR model SO2, NOX annual, and NOX
ozone season trading rules and the
respective CAIR FIP trading rules are
designed to work together as integrated
SO2, NOX annual, and NOX ozone
season trading programs.
In the SIP revision, West Virginia
chooses to implement its CAIR budgets
by requiring EGUs to participate in EPAadministered cap-and-trade programs
for SO2, NOX annual, and NOX ozone
season emissions. West Virginia has
adopted a full SIP revision that adopts,
with certain allowed changes discussed
below, the CAIR model cap-and-trade
rules for SO2, NOX annual, and NOX
ozone season emissions.
C. Applicability Provisions
In general, the CAIR model trading
rules apply to any stationary, fossil-fuelfired boiler or stationary, fossil-fuelfired combustion turbine serving at any
time, since the later of November 15,
1990 or the start-up of the unit’s
combustion chamber, a generator with
nameplate capacity of more than 25
MWe producing electricity for sale.
Under the CAIR model trading rules,
exemptions are provided for a unit
otherwise covered by these general
applicability criteria that is a
cogeneration unit meeting a specified
limit on its electricity sales or that is a
solid waste incineration unit meeting a
specified limit on combustion of fossil
fuel. In the applicability section of each
of West Virginia’s CAIR trading rules,
these exemptions are set forth in
subsection 4.2, which begins with the
phrase ‘‘[w]ith limited exception’’ and
then goes on to state that units meeting
the exemption criteria that are set forth
are not CAIR units. EPA interprets this
phrase to mean, in each of West
Virginia’s CAIR trading rules, that the
provisions in subsection 4.2 that set
forth the exemptions for cogeneration
units and solid waste incineration units
are the ‘‘limited exceptions’’ to the
general applicability criteria in
subsection 4.1 and that these provisions
are not altered by the reference to
‘‘limited exception’’ and are intended to
be the same as the exemptions set forth
in the CAIR model trading rules. In
other words, there are no exceptions to
the general applicability criteria other
than those listed in subsection 4.2, and
all units meeting the exemption criteria
in subsection 4.2 are not CAIR units. In
a letter submitted to EPA on April 30,
2008, the West Virginia Department of
Environmental Protection adopted this
interpretation.
States have the option of bringing in,
for the CAIR NOX ozone season program
only, those units in the State’s NOX SIP
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Call trading program that are not EGUs
as defined under CAIR. EPA advises
States exercising this option to add the
applicability provisions in the State’s
NOX SIP Call trading rule for non-EGUs
to the applicability provisions in 40 CFR
96.304 in order to include in the CAIR
NOX ozone season trading program all
units required to be in the State’s NOX
SIP Call trading program that are not
already included under 40 CFR 96.304.
Under this option, the CAIR NOX ozone
season program must cover all large
industrial boilers and combustion
turbines, as well as any small EGUs (i.e.
units serving a generator with a
nameplate capacity of 25 MWe or less)
that the State currently requires to be in
the NOX SIP Call trading program.
West Virginia has chosen to expand
the applicability provisions of the CAIR
NOX ozone season trading program to
include all non-EGUs in the State’s NOX
SIP Call trading program, including the
only unit (PPG Natrium Plant Unit 002)
that opted into the State’s NOX SIP Call
trading program. Under 40 CFR
51.123(aa)(2)(i), a State may include ‘‘all
non-EGUs subject to’’ the State’s NOX
SIP Call trading program. EPA believes
that, although the unit voluntarily
entered the State’s NOX SIP Call trading
program, West Virginia properly
included this unit in the CAIR NOX
ozone season trading program because
the unit became subject to that trading
program in 2003, installed emission
controls for compliance with program
requirements, and has continued to
participate in the program through 2008.
Consistent with the fact (discussed
below) that West Virginia’s SIP revision
does not allow for opt-in units in the
CAIR NOX ozone season trading
program, the SIP revision treats this unit
like any other CAIR unit and does not
give this unit the option of leaving the
CAIR NOX ozone season trading
program.
Further, in connection with the
inclusion, as CAIR units in the CAIR
NOX ozone season trading program, of
non-EGUs in the State’s NOX SIP Call
trading program, West Virginia’s SIP
revision includes (in subsection 2.37.b)
a special definition of ‘‘commence
operation’’ for such non-EGUs that
become CAIR units after they have
commenced operation. Section 45–
2.37.b incorrectly references
‘‘subsections 4.2 or 4.3,’’ which were
renumbered in the latest version of West
Virginia’s SIP revision as ‘‘subsections
4.3 or 4.4.’’ Because this appears to be
a scrivener’s error, EPA interprets the
references to be to ‘‘subsections 4.3 or
4.4.’’ In a letter submitted to EPA on
April 30, 2008, the West Virginia
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Department of Environmental Protection
adopted this interpretation.
D. NOX Allowance Allocations
Under the NOX allowance allocation
methodology in the CAIR model trading
rules and in the CAIR FIP, NOX annual
and ozone season allowances are
allocated to units that have operated for
five years, based on heat input data from
a three-year period that are adjusted for
fuel type by using fuel factors of 1.0 for
coal, 0.6 for oil, and 0.4 for other fuels.
The CAIR model trading rules and the
CAIR FIP also provide a new unit setaside from which units without five
years of operation are allocated
allowances based on the units’ prior
year emissions.
States may establish in their SIP
submissions a different NOX allowance
allocation methodology that will be
used to allocate allowances to sources in
the States if certain requirements are
met concerning the timing of
submission of units’ allocations to the
Administrator for recordation and the
total amount of allowances allocated for
each control period. In adopting
alternative NOX allowance allocation
methodologies, States have flexibility
with regard to:
1. The cost to recipients of the
allowances, which may be distributed
for free or auctioned;
2. The frequency of allocations;
3. The basis for allocating allowances,
which may be distributed, for example,
based on historical heat input or electric
and thermal output; and
4. The use of allowance set-asides
and, if used, their size.
West Virginia has chosen to distribute
NOX annual and NOX ozone season
allowances in a manner substantively
identical to that in the Part 96 model
rule. The State’s NOX ozone season
allocation provisions have been
modified only to the extent necessary to
add requirements associated with West
Virginia’s option to bring its non-EGUs
into the CAIR NOX ozone season trading
program.
E. Allocation of NOX Allowances From
Compliance Supplement Pool
The CAIR establishes a CSP to
provide an incentive for early
reductions in NOX annual emissions.
The CSP consists of 200,000 CAIR NOX
annual allowances of vintage 2009 for
the entire CAIR region, and a State’s
share of the CSP is based upon the
projected magnitude of the emission
reductions required by CAIR in that
State. States may distribute CSP
allowances, one allowance for each ton
of early reduction, to sources that make
NOX reductions during 2007 or 2008
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beyond what is required by any
applicable State or Federal emission
limitation. States also may distribute
CSP allowances based upon a
demonstration of need for an extension
of the 2009 deadline for implementing
emission controls.
The CAIR annual NOX model trading
rule establishes specific methodologies
for allocations of CSP allowances. States
may choose an allowed, alternative CSP
allocation methodology to be used to
allocate CSP allowances to sources in
the States.
West Virginia’s compliance
supplement pool is comprised of 4,898
allowances. West Virginia has chosen to
modify the provisions of the CAIR NOX
annual model trading rule concerning
the allocation of allowances from the
CSP. West Virginia has chosen to
distribute CSP allowances to any CAIR
NOX Annual unit in the State whose
average annual NOX emission rate for
2007 or 2008 is less than 0.25 lb/mmBtu
and whose NOX averaging plan (if the
unit is included in an Acid Rain
Program NOX averaging plan under 40
CFR 76.11) for that year has an actual
weighted average NOX emission rate
that is equal to or less than the actual
weighted average NOX emission rate for
the year before the unit achieves NOX
emission reductions in 2007 or 2008.
F. Individual Opt-in Units
The opt-in provisions of the CAIR SIP
model trading rules allow certain nonEGUs (i.e., boilers, combustion turbines,
and other stationary fossil-fuel-fired
devices) that do not meet the
applicability criteria for a CAIR trading
program to participate voluntarily in
(i.e., opt into) the CAIR trading program.
A non-EGU may opt into one or more
of the CAIR trading programs. In order
to qualify to opt into a CAIR trading
program, a unit must vent all emissions
through a stack and be able to meet
monitoring, recordkeeping, and
recording requirements of 40 CFR part
75. The owners and operators seeking to
opt a unit into a CAIR trading program
must apply for a CAIR opt-in permit. If
the unit is issued a CAIR opt-in permit,
the unit becomes a CAIR unit, is
allocated allowances, and must meet the
same allowance-holding and emissions
monitoring and reporting requirements
as other units subject to the CAIR
trading program. The opt-in provisions
provide for two methodologies for
allocating allowances for opt-in units,
one methodology that applies to opt-in
units in general and a second
methodology that allocates allowances
only to opt-in units that the owners and
operators intend to repower before
January 1, 2015.
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States have several options
concerning the opt-in provisions. States
may adopt the CAIR opt-in provisions
entirely or may adopt them but exclude
one of the methodologies for allocating
allowances. States may also decline to
adopt the opt-in provisions at all. West
Virginia has declined to adopt the optin provisions.
G. Additional Interpretations
1. References to NOX Emitting
Equipment in Section 45–40–9
West Virginia’s SIP revision includes
provisions (in sections 45–40–90 and
45–40–100) addressing NOX ozone
season emission reduction requirements
for internal combustion engines and
cement kilns, none of which sources are
included in the CAIR NOX ozone season
trading program. The NOX ozone season
emission reduction requirements in
these sections—which have been moved
from the portion of West Virginia’s rules
addressing the NOX SIP Call to the
portion addressing CAIR—are identical
to those previously approved in West
Virginia’s SIP for purposes of meeting
requirements under the NOX SIP Call,
except that references to the NOX SIP
Call trading program are replaced by
references to the CAIR NOX ozone
season trading program. EPA is
therefore proposing to approve the
recodification and revision of sections
45–40–90 and 45–40–100, as interpreted
and clarified below.
Some of the language in section 45–
40–90 could be interpreted as being
inconsistent with the above-discussed
CAIR trading program applicability
provisions in section 45–40–4 in West
Virginia’s SIP revision. Specifically,
subsections 90.1, 90.4.d, 90.4.g, and
90.4.i refer to stationary internal
combustion engines and ‘‘other
significant NOX emitting equipment’’
located at facilities controlled by the
same owner or operator. Section 90.1
states that both of these categories of
equipment ‘‘will not be * * * subject to
the CAIR NOX Ozone Season Trading
Program requirements under sections 4
through 88.’’ Subsections 90.4.g and
90.4.i include similar language stating
the ‘‘other significant NOX emitting
equipment’’ will not be subject to
trading program requirements; however,
these sections clarify that the ‘‘other
significant NOX emitting equipment’’
that is not subject to the trading program
requirements is only to equipment ‘‘that
is not a CAIR NOX Ozone Season unit
under section 4’’ (i.e., section 45–40–4).
Subsections 90.1 and 90.4.d lack this
clarifying language. Section 45–40–4
does not exempt from the CAIR NOX
ozone season trading program ‘‘other
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significant NOX emitting equipment’’
covered by section 45–40–90. Therefore,
if subsections 90.1 and 90.4.d. were
interpreted to exempt ‘‘other significant
NOX emitting equipment’’ regardless of
whether it is covered by the CAIR
trading programs, these subsections
would be inconsistent with section 45–
40–4. In order for West Virginia to
participate in the CAIR trading program
as the State clearly intends, the
applicability of the CAIR trading
program to ‘‘significant NOX emitting
equipment’’ must be determined by
section 45–40–4 (not section 45–40–90).
EPA interprets all references to ‘‘other
significant NOX emitting equipment’’ in
section 45–40–90 to be limited to such
equipment that is not a CAIR NOX
Ozone Season unit under section 45–
40–4. In a letter submitted to EPA on
April 30, 2008, the West Virginia
Department of Environmental Protection
adopted this interpretation.
2. Treatment of CAIR Allowances
Allocated to Opt-in Units
Having chosen not to allow units to
opt into the CAIR trading programs,
West Virginia properly removed from its
CAIR trading rules most of the
provisions that are in the CAIR model
trading rules and address CAIR opt-in
units. However, while, as discussed
above, West Virginia has the option of
participating in the CAIR trading
programs with or without allowing units
in its jurisdiction to opt into the trading
programs, other States also have that
option, and some States have chosen to
allow units in their respective
jurisdictions to opt in. Consequently,
any CAIR SO2 unit, including those in
West Virginia, may obtain CAIR SO2
allowances allocated to a CAIR opt-in
unit and use them to comply with the
allowance-holding requirements in the
CAIR SO2 trading program. Under the
CAIR SO2 model trading rule,
compliance with these requirements is
determined in two steps: First, CAIR
units that are also Acid Rain units must
show compliance consistent with the
Acid Rain Program allowance-holding
requirement and so can use only title IV
allowances; and second, all CAIR units
must then show compliance with the
CAIR trading program allowanceholding requirement using either title IV
allowances or CAIR SO2 allowances
allocated to CAIR opt-in units. Language
in the compliance provisions of the
CAIR SO2 model trading rule states
explicitly when CAIR SO2 allowances
allocated to CAIR opt-in units can and
cannot be used. West Virginia’s SIP
inadvertently omitted this language
from section 45–41–54, apparently
because the language refers to the CAIR
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opt-in unit provisions. However, West
Virginia’s rule still requires compliance
initially with the Acid Rain Program
requirement set forth in sections 73.35
and 77.5 of the Acid Rain Program rules,
which themselves require the use of
only title IV allowances. Consequently,
EPA interprets subsections 54.2.a.1 and
54.2.a.2 to allow only for the use of title
IV allowances. Moreover, since West
Virginia’s rule defines ‘‘CAIR SO2
allowance’’ as including allowances
allocated to CAIR opt-in units, EPA
interprets subsections 54.2.a.3, 54.2.b,
54.2.b.2, and 54.4.a to allow for the use
of title IV allowances and allowances
allocated to CAIR opt-in units. In a letter
submitted to EPA on April 30, 2008, the
West Virginia Department of
Environmental Protection adopted this
interpretation.
VI. Proposed Action
EPA is proposing to approve West
Virginia’s full CAIR SIP revision
submitted on April 22, 2008, as
interpreted and clarified herein. EPA is
proposing to approve the recodification
and revision of provisions (in sections
45–40–90 and 45–40–100) addressing
NOX ozone season emission reduction
requirements for internal combustion
engines and cement kilns, none of
which are included in the CAIR trading
programs. Under the SIP revision, West
Virginia is choosing to participate in the
EPA-administered CAIR cap-and-trade
programs for SO2, NOX annual, and NOX
ozone season emissions. The SIP
revision, as interpreted and clarified
herein, meets the applicable
requirements of CAIR, set forth 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 is
soliciting public comments on the
issues discussed in this document.
These comments will be considered
before taking final action.
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VII. Statutory and Executive Order
Reviews
Under the Clean Air Act, 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 Clean Air Act.
Accordingly, this action merely
proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
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14:24 Jun 10, 2009
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• 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 Clean Air Act;
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 proposed approval of
West Virginia’s SIP revision to meet the
requirements of CAIR 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.
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.
Authority: 42 U.S.C. 7401 et seq.
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27737
Dated: May 29, 2009.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. E9–13725 Filed 6–10–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2008–0831–200825(b);
FRL–8915–6]
Approval and Promulgation of
Implementation Plans Georgia: State
Implementation Plan Revision
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA is proposing to approve
the State Implementation Plan (SIP)
revision submitted by the Georgia
Department of Natural Resources,
through the Georgia Environmental
Protection Division, on June 25, 2008.
The revisions include modifications to
Georgia’s Air Quality Rules found at
Chapters 391–3–1–.01, and 391–3–1–
.02, pertaining to ‘‘Definitions,’’ and
‘‘Emission Limitations and Standards,’’
respectively. This action is being taken
pursuant to section 110 of the Clean Air
Act.
In the Final Rules Section of this
Federal Register, EPA is approving the
State’s SIP revision as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this rule, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period
on this document. Any parties
interested in commenting on this
document should do so at this time.
DATES: Written comments must be
received on or before July 13, 2009.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2008–0831, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. E-mail: harder.stacy@epa.gov.
3. Fax: 404–562–9019.
4. Mail: ‘‘EPA–R04–OAR–2008–
0831,’’ Regulatory Development Section,
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]]>Agencies
[Federal Register Volume 74, Number 111 (Thursday, June 11, 2009)]
[Proposed Rules]
[Pages 27731-27737]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13725]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2009-0033; FRL-8916-8]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Clean Air Interstate Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve a revision to the West Virginia
State Implementation Plan (SIP). This revision addresses the
requirements of
[[Page 27732]]
EPA's Clean Air Interstate Rule (CAIR), and recodifies and revises
provisions pertaining to internal combustion engines and cement kilns
that are subject to the nitrogen oxides (NOX) SIP Call.
Although the D.C. Circuit found CAIR to be flawed, the rule was
remanded without vacatur and thus remains in place. Thus, EPA is
continuing to take action on CAIR 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 ozone in any downwind state. CAIR establishes budgets for
SO2 and NOX for States that contribute
significantly to nonattainment 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 proposing to approve, West
Virginia will meet CAIR requirements by participating in these cap-and-
trade programs. EPA is proposing to approve the SIP revision, as
interpreted and clarified herein, as fully implementing the CAIR
requirements for West Virginia.
DATES: Written comments must be received on or before July 13, 2009.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2009-0033 by one of the following methods:
A. https://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: fernandez.cristina@epa.gov.
C. Mail: EPA-R03-OAR-2009-0033, Cristina Fernandez, Chief, Air
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
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-R03-OAR-
2009-0033. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at https://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 https://www.regulations.gov or e-mail. The https://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 https://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, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in https://www.regulations.gov or in hard copy during normal business hours at the
Air Protection Division, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the
State submittal are available at the West Virginia Department of
Environmental Protection, Division of Air Quality, 601 57th Street,
SE., Charleston, West Virginia 25304.
FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by
e-mail at powers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action Is EPA Proposing?
II. What Is the Regulatory History of CAIR and the CAIR Federal
Implementation Plans (FIPs)?
III. What Are the General Requirements of CAIR and the CAIR FIPs?
IV. What Are the Types of CAIR SIP Submittals?
V. Analysis of West Virginia's CAIR SIP Submittal
A. State Budgets for Allowance Allocations
B. CAIR Cap-and-Trade Programs
C. Applicability Provisions
D. NOX Allowance Allocations
E. Allocation of NOX Allowances from Compliance
Supplement Pool
F. Individual Opt-in Units
G. Additional Interpretations
VI. Proposed Action
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing?
EPA is proposing to approve the SIP revision submitted by West
Virginia on April 22, 2008, as interpreted and clarified herein, as
meeting the applicable CAIR requirements by requiring certain electric
generating units (EGUs) to participate in the EPA-administered CAIR
cap-and-trade programs addressing SO2, NOX
annual, and NOX ozone season emissions. EPA is also
proposing to approve recodification and revision of provisions that
address NOX ozone season emission reduction requirements for
internal combustion engines and cement kilns, updated only to revise
NOX SIP Call references to CAIR references. These provisions
for internal combustion engines and cement kilns were previously
approved as part of West Virginia regulation 45CSR1. 45CSR1 set forth
the requirements for both: non-EGUs that were part of the
NOX Budget Trading Program, and non-EGUs that were not part
of the trading program but instead had specific emission requirements.
EPA will no longer administer the NOX Budget Trading program
after 2008, therefore West Virginia chose to sunset its NOX
Budget Trading Program rules by repealing 45CSR1 and 45CSR26 (which
applied to EGUs) in their entirety. The units that participated in the
NOX Budget Trading Program in 45CSR1 and 45CSR26 will now be
subject to the requirements of the CAIR trading program, as proposed in
this action. The provisions for internal combustion engines and cement
kilns have been recodified into separate sections of 45CSR40 (sections
45-40-90 and 45-40-100, respectively).
II. What Is the Regulatory History of the CAIR and the CAIR FIPs?
EPA published CAIR on May 12, 2005 (70 FR 25162). In this rule, EPA
determined that 28 States and the District of Columbia contribute
significantly to nonattainment and interfere with maintenance of the
NAAQS for fine particles (PM2.5) and/or
[[Page 27733]]
8-hour ozone in downwind States in the eastern part of the country. As
a result, EPA required those upwind States to revise their SIPs to
include control measures that reduce emissions of SO2, which
is a precursor to PM2.5 formation, and/or NOX,
which is a precursor to both ozone and PM2.5 formation. For
jurisdictions that contribute significantly to downwind
PM2.5 nonattainment, CAIR sets annual State-wide emission
reduction requirements (i.e., budgets) for SO2 and annual
State-wide emission reduction requirements for NOX.
Similarly, for jurisdictions that contribute significantly to 8-hour
ozone nonattainment, CAIR sets State-wide emission reduction
requirements or budgets for NOX for the ozone season (May
1st to September 30th). Under CAIR, States may implement these
reduction requirements by participating in the EPA-administered cap-
and-trade programs or by adopting any other control measures.
CAIR explains to subject States what must be included in SIPs to
address the requirements of section 110(a)(2)(D) of the Clean Air Act
(CAA) with regard to interstate transport with respect to the 8-hour
ozone and PM2.5 NAAQS. EPA made national findings, effective
on May 25, 2005, that the States had failed to submit SIPs meeting the
requirements of section 110(a)(2)(D). The SIPs were due in July 2000, 3
years after the promulgation of the 8-hour ozone and PM2.5
NAAQS. These findings started a 2-year clock for EPA to promulgate a
FIP to address the requirements of section 110(a)(2)(D). Under CAA
section 110(c)(1), EPA may issue a FIP anytime after such findings are
made and must do so within two years unless a SIP revision correcting
the deficiency is approved by EPA before the FIP is promulgated.
On April 28, 2006, EPA promulgated FIPs for all States covered by
CAIR in order to ensure the emissions reductions required by CAIR are
achieved on schedule. The CAIR FIPs require EGUs to participate in the
EPA-administered CAIR SO2, NOX annual, and
NOX ozone season trading programs, as appropriate. The CAIR
FIP SO2, NOX annual, and NOX ozone
season trading programs impose essentially the same requirements as,
and are integrated with, the respective CAIR SIP trading programs. The
integration of the FIP and SIP trading programs means that these
trading programs will work together to create effectively a single
trading program for each regulated pollutant (SO2,
NOX annual, and NOX ozone season) in all States
covered by the CAIR FIP or SIP trading program for that pollutant.
Further, as provided in a rule published by EPA on November 7, 2007, a
State's CAIR FIPs are automatically withdrawn when EPA approves a SIP
revision, in its entirely and without any conditions, as fully meeting
the requirements of CAIR. Where only portions of the SIP revision are
approved, the corresponding portions of the FIPs are automatically
withdrawn and the remaining portions of the FIP stay in place. Finally,
the CAIR FIPs also allow States to submit abbreviated SIP revisions
that, if approved by EPA, will automatically replace or supplement
certain CAIR FIP provisions (e.g., the methodology for allocating
NOX allowances to sources in the State), while the CAIR FIP
remains in place for all other provisions.
On April 28, 2006, EPA published two additional CAIR-related final
rules that added the States of Delaware and New Jersey to the list of
States subject to CAIR for PM2.5 and announced EPA's final
decisions on reconsideration of five issues, without making any
substantive changes to the CAIR requirements.
On October 19, 2007, EPA amended CAIR and the CAIR FIPs to clarify
the definition of ``cogeneration unit'' and thus the applicability of
the CAIR trading program to cogeneration units. There are no sources in
West Virginia that are affected by the clarification of this
definition, however, West Virginia must still revise their rules to
address this clarification and submit the revised rule as a SIP
revision.
EPA was sued by a number of parties on various aspects of CAIR, and
on July 11, 2008, the U.S. Court of Appeals for the District of
Columbia Circuit issued its decision to vacate and remand both CAIR and
the associated CAIR FIPs in their entirety. North Carolina v. EPA, 531
F.3d 836 (DC Cir. Jul. 11, 2008). However, in response to EPA's
petition for rehearing, the Court issued an order remanding CAIR to EPA
without vacating either CAIR or the CAIR FIPs. North Carolina v. EPA,
550 F.3d 1176 (DC Cir. Dec. 23, 2008). The Court thereby left CAIR in
place in order to ``temporarily preserve the environmental values
covered by CAIR'' until EPA replaces it with a rule consistent with the
Court's opinion. Id. at 1178. The Court directed EPA to ``remedy CAIR's
flaws'' consistent with its July 11, 2008 opinion, but declined to
impose a schedule on EPA for completing that action. Id. Therefore,
CAIR and the CAIR FIP are currently in effect in West Virginia.
III. What Are the General Requirements of CAIR and the CAIR FIPs?
CAIR establishes State-wide emission budgets for SO2 and
NOX and is to be implemented in two phases. The first phase
of NOX reductions starts in 2009 and continues through 2014,
while the first phase of SO2 reductions starts in 2010 and
continues through 2014. The second phase of reductions for both
NOX and SO2 starts in 2015 and continues
thereafter. CAIR requires States to implement the budgets by either:
(1) Requiring EGUs to participate in the EPA-administered cap-and-trade
programs; or (2) adopting other control measures of the State's
choosing and demonstrating that such control measures will result in
compliance with the applicable State SO2 and NOX
budgets.
The May 12, 2005 and April 28, 2006 CAIR rules provide model rules
that States must adopt (with certain limited changes, if desired) if
they want to participate in the EPA-administered trading programs.
With two exceptions, only States that choose to meet the
requirements of CAIR through methods that exclusively regulate EGUs are
allowed to participate in the EPA-administered trading programs. One
exception is for States that adopt the opt-in provisions of the model
rules to allow non-EGUs individually to opt into the EPA-administered
trading programs. The other exception is for States that include all
non-EGUs from their NOX SIP Call trading programs in their
CAIR NOX ozone season trading programs.
IV. What Are the Types of CAIR SIP Submittals?
States have the flexibility to choose the type of control measures
they will use to meet the requirements of CAIR. EPA anticipates that
most States will choose to meet the CAIR requirements by selecting an
option that requires EGUs to participate in the EPA-administered CAIR
cap-and-trade programs. For such States, EPA has provided two
approaches for submitting and obtaining approval for CAIR SIP
revisions. States may submit full SIP revisions that adopt the model
CAIR cap-and-trade rules. If approved, these SIP revisions will fully
replace the CAIR FIPs. Alternatively, States may submit abbreviated SIP
revisions. These SIP revisions will not replace the CAIR FIPs; however,
the CAIR FIPs provide that, when approved, the provisions in these
abbreviated SIP revisions will be used instead of or in conjunction
with, as appropriate, the corresponding provisions of the CAIR FIPs
(e.g., the
[[Page 27734]]
NOX allowance allocation methodology).
A State submitting a full SIP revision may either adopt regulations
that are substantively identical to the model rules or incorporate by
reference the model rules. CAIR provides that States may only make
limited changes to the model rules if the States want to participate in
the EPA-administered trading programs. A full SIP revision may change
the model rules only by altering their applicability and allowance
allocation provisions to:
1. Include all NOX SIP Call trading sources that are not
EGUs under CAIR in the CAIR NOX ozone season trading
program;
2. Provide for State allocation of NOX annual or ozone
season allowances using a methodology chosen by the State;
3. Provide for State allocation of NOX annual allowances
from the compliance supplement pool (CSP) using the State's choice of
allowed, alternative methodologies; or
4. Allow units that are not otherwise CAIR units to opt
individually into the CAIR SO2, NOX annual, or
NOX ozone season trading programs under the opt-in
provisions in the model rules. An approved CAIR full SIP revision
addressing EGUs' SO2, NOX annual, or
NOX ozone season emissions will replace the CAIR FIP for
that State for the respective EGU emissions. As discussed above, EPA
approval in full, without any conditions, of a CAIR full SIP revision
causes the CAIR FIPs to be automatically withdrawn.
V. Analysis of West Virginia's CAIR SIP Submittal
A. State Budgets for Allowance Allocations
The CAIR NOX annual and ozone season budgets were
developed from historical heat input data for EGUs. Using these data,
EPA calculated annual and ozone season regional heat input values,
which were multiplied by 0.15 lb/mmBtu, for phase 1 and 0.125 lb/mmBtu,
for phase 2, to obtain regional NOX budgets for 2009-2014
and for 2015 and thereafter, respectively. EPA derived the State
NOX annual and ozone season budgets from the regional
budgets using State heat input data adjusted by fuel factors.
The CAIR State SO2 budgets were derived by discounting
the tonnage of emissions authorized by annual allowance allocations
under the Acid Rain Program under title IV of the CAA. Under CAIR, each
allowance allocated in the Acid Rain Program for the years in phase 1
of CAIR (2010 through 2014) authorizes 0.5 ton of SO2
emissions in the CAIR trading program, and each Acid Rain Program
allowance allocated for the years in phase 2 of CAIR (2015 and
thereafter) authorizes 0.35 ton of SO2 emissions in the CAIR
trading program.
In today's action, EPA is proposing to approve West Virginia's SIP
revision that adopts the budgets established for the State in CAIR.
These budgets are: 74,220 tons for NOX annual emissions from
2009 through 2014 and 61,850 tons from 2015 and thereafter; 26,859 tons
for NOX ozone season emissions from 2009 through 2014 and
26,525 tons from 2015 and thereafter; and 215,881 tons for
SO2 annual emissions from 2009 through 2014 and 151,117 tons
from 2015 and thereafter. Additionally, the CAIR NOX ozone
season budget would be increased annually by 2,184 tons to account for
NOX SIP Call trading sources that are not EGUs under CAIR,
but are included in the CAIR NOX ozone season trading
program. West Virginia's SIP revision sets these budgets as the total
amounts of allowances available for allocation for each year under the
EPA-administered cap-and-trade programs.
EPA notes that, in North Carolina, id. 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, as discussed above, the Court also decided to
remand CAIR but to leave the rule in place in order to ``temporarily
preserve the environmental values covered by CAIR'' pending EPA's
development and promulgation of a replacement rule that remedies CAIR's
flaws. Id. at 1178. EPA had indicated to the Court that development and
promulgation of a replacement rule would take about two years. Reply in
Support of Petition for Rehearing or Rehearing en Banc at 5 (filed Nov.
17, 2008 in North Carolina v. EPA, Case No. 05-1224, DC Cir.). The
process at EPA of developing a proposal that will undergo notice and
comment and result in a final replacement rule is ongoing. In the
meantime, consistent with the Court's orders, EPA is implementing CAIR
by approving State 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.
North Carolina, 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 proposing approval of the provisions of West
Virginia's SIP revision that use the SO2 and
NOX budgets set in CAIR, EPA is also proposing approval,
as discussed below, of West Virginia'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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B. CAIR Cap-and-Trade Programs
The CAIR NOX annual and ozone-season model trading rules
both largely mirror the structure of the NOX SIP Call model
trading rule in 40 CFR part 96, subparts A through I. While the
provisions of the NOX annual and ozone-season model rules
are similar, there are some differences. For example, the
NOX annual model rule (but not the NOX ozone
season model rule) provides for a CSP, which is discussed below, and
under which allowances may be awarded for early reductions of
NOX annual emissions. As a further example, the
NOX ozone season model rule reflects the fact that the CAIR
NOX ozone season trading program replaces the NOX
SIP Call trading program after the 2008 ozone season and is coordinated
with the NOX SIP Call program. The NOX ozone
season model rule provides incentives for early emissions reductions by
allowing banked, pre-2009 NOX SIP Call allowances to be used
for compliance in the CAIR NOX ozone-season trading program.
In addition, States have the option of continuing to meet their
NOX SIP Call requirement by participating in the CAIR
NOX ozone season trading program and including all their
NOX SIP Call trading sources in that program.
The provisions of the CAIR SO2 model rule are also
similar to the provisions of the NOX annual and ozone season
model rules. However, the SO2 model rule is coordinated with
the ongoing Acid Rain SO2 cap-and-trade program under CAA
title IV. The SO2 model rule uses the title IV allowances
for compliance, with each allowance allocated for 2010-2014 authorizing
only 0.50 ton of emissions and each allowance allocated for 2015 and
thereafter authorizing only 0.35 ton of emissions. Banked title IV
allowances allocated for years before 2010 can be used at any time in
the CAIR SO2 cap-and-trade program, with each such allowance
authorizing 1 ton of emissions. Title IV allowances are to be freely
transferable among sources covered by the Acid Rain Program and sources
covered by the CAIR SO2 cap-and-trade program.
EPA also used the CAIR model trading rules as the basis for the
trading programs in the CAIR FIPs. The CAIR FIP trading rules are
virtually identical to the CAIR model trading rules, with changes made
to account for Federal
[[Page 27735]]
rather than State implementation. The CAIR model SO2,
NOX annual, and NOX ozone season trading rules
and the respective CAIR FIP trading rules are designed to work together
as integrated SO2, NOX annual, and NOX
ozone season trading programs.
In the SIP revision, West Virginia chooses to implement its CAIR
budgets by requiring EGUs to participate in EPA-administered cap-and-
trade programs for SO2, NOX annual, and
NOX ozone season emissions. West Virginia has adopted a full
SIP revision that adopts, with certain allowed changes discussed below,
the CAIR model cap-and-trade rules for SO2, NOX
annual, and NOX ozone season emissions.
C. Applicability Provisions
In general, the CAIR model trading rules apply to any stationary,
fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion
turbine serving at any time, since the later of November 15, 1990 or
the start-up of the unit's combustion chamber, a generator with
nameplate capacity of more than 25 MWe producing electricity for sale.
Under the CAIR model trading rules, exemptions are provided for a unit
otherwise covered by these general applicability criteria that is a
cogeneration unit meeting a specified limit on its electricity sales or
that is a solid waste incineration unit meeting a specified limit on
combustion of fossil fuel. In the applicability section of each of West
Virginia's CAIR trading rules, these exemptions are set forth in
subsection 4.2, which begins with the phrase ``[w]ith limited
exception'' and then goes on to state that units meeting the exemption
criteria that are set forth are not CAIR units. EPA interprets this
phrase to mean, in each of West Virginia's CAIR trading rules, that the
provisions in subsection 4.2 that set forth the exemptions for
cogeneration units and solid waste incineration units are the ``limited
exceptions'' to the general applicability criteria in subsection 4.1
and that these provisions are not altered by the reference to ``limited
exception'' and are intended to be the same as the exemptions set forth
in the CAIR model trading rules. In other words, there are no
exceptions to the general applicability criteria other than those
listed in subsection 4.2, and all units meeting the exemption criteria
in subsection 4.2 are not CAIR units. In a letter submitted to EPA on
April 30, 2008, the West Virginia Department of Environmental
Protection adopted this interpretation.
States have the option of bringing in, for the CAIR NOX
ozone season program only, those units in the State's NOX
SIP Call trading program that are not EGUs as defined under CAIR. EPA
advises States exercising this option to add the applicability
provisions in the State's NOX SIP Call trading rule for non-
EGUs to the applicability provisions in 40 CFR 96.304 in order to
include in the CAIR NOX ozone season trading program all
units required to be in the State's NOX SIP Call trading
program that are not already included under 40 CFR 96.304. Under this
option, the CAIR NOX ozone season program must cover all
large industrial boilers and combustion turbines, as well as any small
EGUs (i.e. units serving a generator with a nameplate capacity of 25
MWe or less) that the State currently requires to be in the
NOX SIP Call trading program.
West Virginia has chosen to expand the applicability provisions of
the CAIR NOX ozone season trading program to include all
non-EGUs in the State's NOX SIP Call trading program,
including the only unit (PPG Natrium Plant Unit 002) that opted into
the State's NOX SIP Call trading program. Under 40 CFR
51.123(aa)(2)(i), a State may include ``all non-EGUs subject to'' the
State's NOX SIP Call trading program. EPA believes that,
although the unit voluntarily entered the State's NOX SIP
Call trading program, West Virginia properly included this unit in the
CAIR NOX ozone season trading program because the unit
became subject to that trading program in 2003, installed emission
controls for compliance with program requirements, and has continued to
participate in the program through 2008. Consistent with the fact
(discussed below) that West Virginia's SIP revision does not allow for
opt-in units in the CAIR NOX ozone season trading program,
the SIP revision treats this unit like any other CAIR unit and does not
give this unit the option of leaving the CAIR NOX ozone
season trading program.
Further, in connection with the inclusion, as CAIR units in the
CAIR NOX ozone season trading program, of non-EGUs in the
State's NOX SIP Call trading program, West Virginia's SIP
revision includes (in subsection 2.37.b) a special definition of
``commence operation'' for such non-EGUs that become CAIR units after
they have commenced operation. Section 45-2.37.b incorrectly references
``subsections 4.2 or 4.3,'' which were renumbered in the latest version
of West Virginia's SIP revision as ``subsections 4.3 or 4.4.'' Because
this appears to be a scrivener's error, EPA interprets the references
to be to ``subsections 4.3 or 4.4.'' In a letter submitted to EPA on
April 30, 2008, the West Virginia Department of Environmental
Protection adopted this interpretation.
D. NOX Allowance Allocations
Under the NOX allowance allocation methodology in the
CAIR model trading rules and in the CAIR FIP, NOX annual and
ozone season allowances are allocated to units that have operated for
five years, based on heat input data from a three-year period that are
adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for
oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR
FIP also provide a new unit set-aside from which units without five
years of operation are allocated allowances based on the units' prior
year emissions.
States may establish in their SIP submissions a different
NOX allowance allocation methodology that will be used to
allocate allowances to sources in the States if certain requirements
are met concerning the timing of submission of units' allocations to
the Administrator for recordation and the total amount of allowances
allocated for each control period. In adopting alternative
NOX allowance allocation methodologies, States have
flexibility with regard to:
1. The cost to recipients of the allowances, which may be
distributed for free or auctioned;
2. The frequency of allocations;
3. The basis for allocating allowances, which may be distributed,
for example, based on historical heat input or electric and thermal
output; and
4. The use of allowance set-asides and, if used, their size.
West Virginia has chosen to distribute NOX annual and
NOX ozone season allowances in a manner substantively
identical to that in the Part 96 model rule. The State's NOX
ozone season allocation provisions have been modified only to the
extent necessary to add requirements associated with West Virginia's
option to bring its non-EGUs into the CAIR NOX ozone season
trading program.
E. Allocation of NOX Allowances From Compliance Supplement
Pool
The CAIR establishes a CSP to provide an incentive for early
reductions in NOX annual emissions. The CSP consists of
200,000 CAIR NOX annual allowances of vintage 2009 for the
entire CAIR region, and a State's share of the CSP is based upon the
projected magnitude of the emission reductions required by CAIR in that
State. States may distribute CSP allowances, one allowance for each ton
of early reduction, to sources that make NOX reductions
during 2007 or 2008
[[Page 27736]]
beyond what is required by any applicable State or Federal emission
limitation. States also may distribute CSP allowances based upon a
demonstration of need for an extension of the 2009 deadline for
implementing emission controls.
The CAIR annual NOX model trading rule establishes
specific methodologies for allocations of CSP allowances. States may
choose an allowed, alternative CSP allocation methodology to be used to
allocate CSP allowances to sources in the States.
West Virginia's compliance supplement pool is comprised of 4,898
allowances. West Virginia has chosen to modify the provisions of the
CAIR NOX annual model trading rule concerning the allocation
of allowances from the CSP. West Virginia has chosen to distribute CSP
allowances to any CAIR NOX Annual unit in the State whose
average annual NOX emission rate for 2007 or 2008 is less
than 0.25 lb/mmBtu and whose NOX averaging plan (if the unit
is included in an Acid Rain Program NOX averaging plan under
40 CFR 76.11) for that year has an actual weighted average
NOX emission rate that is equal to or less than the actual
weighted average NOX emission rate for the year before the
unit achieves NOX emission reductions in 2007 or 2008.
F. Individual Opt-in Units
The opt-in provisions of the CAIR SIP model trading rules allow
certain non-EGUs (i.e., boilers, combustion turbines, and other
stationary fossil-fuel-fired devices) that do not meet the
applicability criteria for a CAIR trading program to participate
voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may
opt into one or more of the CAIR trading programs. In order to qualify
to opt into a CAIR trading program, a unit must vent all emissions
through a stack and be able to meet monitoring, recordkeeping, and
recording requirements of 40 CFR part 75. The owners and operators
seeking to opt a unit into a CAIR trading program must apply for a CAIR
opt-in permit. If the unit is issued a CAIR opt-in permit, the unit
becomes a CAIR unit, is allocated allowances, and must meet the same
allowance-holding and emissions monitoring and reporting requirements
as other units subject to the CAIR trading program. The opt-in
provisions provide for two methodologies for allocating allowances for
opt-in units, one methodology that applies to opt-in units in general
and a second methodology that allocates allowances only to opt-in units
that the owners and operators intend to repower before January 1, 2015.
States have several options concerning the opt-in provisions.
States may adopt the CAIR opt-in provisions entirely or may adopt them
but exclude one of the methodologies for allocating allowances. States
may also decline to adopt the opt-in provisions at all. West Virginia
has declined to adopt the opt-in provisions.
G. Additional Interpretations
1. References to NOX Emitting Equipment in Section 45-40-9
West Virginia's SIP revision includes provisions (in sections 45-
40-90 and 45-40-100) addressing NOX ozone season emission
reduction requirements for internal combustion engines and cement
kilns, none of which sources are included in the CAIR NOX
ozone season trading program. The NOX ozone season emission
reduction requirements in these sections--which have been moved from
the portion of West Virginia's rules addressing the NOX SIP
Call to the portion addressing CAIR--are identical to those previously
approved in West Virginia's SIP for purposes of meeting requirements
under the NOX SIP Call, except that references to the
NOX SIP Call trading program are replaced by references to
the CAIR NOX ozone season trading program. EPA is therefore
proposing to approve the recodification and revision of sections 45-40-
90 and 45-40-100, as interpreted and clarified below.
Some of the language in section 45-40-90 could be interpreted as
being inconsistent with the above-discussed CAIR trading program
applicability provisions in section 45-40-4 in West Virginia's SIP
revision. Specifically, subsections 90.1, 90.4.d, 90.4.g, and 90.4.i
refer to stationary internal combustion engines and ``other significant
NOX emitting equipment'' located at facilities controlled by
the same owner or operator. Section 90.1 states that both of these
categories of equipment ``will not be * * * subject to the CAIR
NOX Ozone Season Trading Program requirements under sections
4 through 88.'' Subsections 90.4.g and 90.4.i include similar language
stating the ``other significant NOX emitting equipment''
will not be subject to trading program requirements; however, these
sections clarify that the ``other significant NOX emitting
equipment'' that is not subject to the trading program requirements is
only to equipment ``that is not a CAIR NOX Ozone Season unit
under section 4'' (i.e., section 45-40-4). Subsections 90.1 and 90.4.d
lack this clarifying language. Section 45-40-4 does not exempt from the
CAIR NOX ozone season trading program ``other significant
NOX emitting equipment'' covered by section 45-40-90.
Therefore, if subsections 90.1 and 90.4.d. were interpreted to exempt
``other significant NOX emitting equipment'' regardless of
whether it is covered by the CAIR trading programs, these subsections
would be inconsistent with section 45-40-4. In order for West Virginia
to participate in the CAIR trading program as the State clearly
intends, the applicability of the CAIR trading program to ``significant
NOX emitting equipment'' must be determined by section 45-
40-4 (not section 45-40-90). EPA interprets all references to ``other
significant NOX emitting equipment'' in section 45-40-90 to
be limited to such equipment that is not a CAIR NOX Ozone
Season unit under section 45-40-4. In a letter submitted to EPA on
April 30, 2008, the West Virginia Department of Environmental
Protection adopted this interpretation.
2. Treatment of CAIR Allowances Allocated to Opt-in Units
Having chosen not to allow units to opt into the CAIR trading
programs, West Virginia properly removed from its CAIR trading rules
most of the provisions that are in the CAIR model trading rules and
address CAIR opt-in units. However, while, as discussed above, West
Virginia has the option of participating in the CAIR trading programs
with or without allowing units in its jurisdiction to opt into the
trading programs, other States also have that option, and some States
have chosen to allow units in their respective jurisdictions to opt in.
Consequently, any CAIR SO2 unit, including those in West
Virginia, may obtain CAIR SO2 allowances allocated to a CAIR
opt-in unit and use them to comply with the allowance-holding
requirements in the CAIR SO2 trading program. Under the CAIR
SO2 model trading rule, compliance with these requirements
is determined in two steps: First, CAIR units that are also Acid Rain
units must show compliance consistent with the Acid Rain Program
allowance-holding requirement and so can use only title IV allowances;
and second, all CAIR units must then show compliance with the CAIR
trading program allowance-holding requirement using either title IV
allowances or CAIR SO2 allowances allocated to CAIR opt-in
units. Language in the compliance provisions of the CAIR SO2
model trading rule states explicitly when CAIR SO2
allowances allocated to CAIR opt-in units can and cannot be used. West
Virginia's SIP inadvertently omitted this language from section 45-41-
54, apparently because the language refers to the CAIR
[[Page 27737]]
opt-in unit provisions. However, West Virginia's rule still requires
compliance initially with the Acid Rain Program requirement set forth
in sections 73.35 and 77.5 of the Acid Rain Program rules, which
themselves require the use of only title IV allowances. Consequently,
EPA interprets subsections 54.2.a.1 and 54.2.a.2 to allow only for the
use of title IV allowances. Moreover, since West Virginia's rule
defines ``CAIR SO2 allowance'' as including allowances
allocated to CAIR opt-in units, EPA interprets subsections 54.2.a.3,
54.2.b, 54.2.b.2, and 54.4.a to allow for the use of title IV
allowances and allowances allocated to CAIR opt-in units. In a letter
submitted to EPA on April 30, 2008, the West Virginia Department of
Environmental Protection adopted this interpretation.
VI. Proposed Action
EPA is proposing to approve West Virginia's full CAIR SIP revision
submitted on April 22, 2008, as interpreted and clarified herein. EPA
is proposing to approve the recodification and revision of provisions
(in sections 45-40-90 and 45-40-100) addressing NOX ozone
season emission reduction requirements for internal combustion engines
and cement kilns, none of which are included in the CAIR trading
programs. Under the SIP revision, West Virginia is choosing to
participate in the EPA-administered CAIR cap-and-trade programs for
SO2, NOX annual, and NOX ozone season
emissions. The SIP revision, as interpreted and clarified herein, meets
the applicable requirements of CAIR, set forth 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 is soliciting public comments on the issues discussed in
this document. These comments will be considered before taking final
action.
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, 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 Clean Air Act.
Accordingly, this action merely proposes to approve state law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed 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 Clean Air Act; 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 proposed approval of West Virginia's SIP revision
to meet the requirements of CAIR 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.
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 29, 2009.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. E9-13725 Filed 6-10-09; 8:45 am]
BILLING CODE 6560-50-P
