Revisions to Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone, 63860-63878 [2011-26521]
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a privilege that protects from disclosure
documents and information about the
content of those documents that are the
product of a voluntary environmental
assessment. The Privilege Law does not
extend to documents or information (1)
That are generated or developed before
the commencement of a voluntary
environmental assessment; (2) that are
prepared independently of the
assessment process; (3) that demonstrate
a clear, imminent and substantial
danger to the public health or
environment; or (4) that are required by
law.
On January 12, 1998, the
Commonwealth of Virginia Office of the
Attorney General provided a legal
opinion that states that the Privilege
Law, Va. Code Sec. 10.1–1198,
precludes granting a privilege to
documents and information ‘‘required
by law,’’ including documents and
information ‘‘required by Federal law to
maintain program delegation,
authorization or approval,’’ since
Virginia must ‘‘enforce Federally
authorized environmental programs in a
manner that is no less stringent than
their Federal counterparts * * *.’’ The
opinion concludes that ‘‘[r]egarding
§ 10.1–1198, therefore, documents or
other information needed for civil or
criminal enforcement under one of these
programs could not be privileged
because such documents and
information are essential to pursuing
enforcement in a manner required by
Federal law to maintain program
delegation, authorization or approval.’’
Virginia’s Immunity Law, Va. Code
Sec. 10.1–1199, provides that ‘‘[t]o the
extent consistent with requirements
imposed by Federal law,’’ any person
making a voluntary disclosure of
information to a state agency regarding
a violation of an environmental statute,
regulation, permit, or administrative
order is granted immunity from
administrative or civil penalty. The
Attorney General’s January 12, 1998
opinion states that the quoted language
renders this statute inapplicable to
enforcement of any Federally authorized
programs, since ‘‘no immunity could be
afforded from administrative, civil, or
criminal penalties because granting
such immunity would not be consistent
with Federal law, which is one of the
criteria for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its
program consistent with the Federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
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have any impact on Federal
enforcement authorities, EPA may at
any time invoke its authority under the
CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the
requirements or prohibitions of the state
plan, independently of any state
enforcement effort. In addition, citizen
enforcement under section 304 of the
CAA is likewise unaffected by this, or
any, state audit privilege or immunity
law.
IV. Proposed Action
EPA is proposing to approve the
Virginia SIP revision for the adoption of
the new 1-hour primary SO2 NAAQS at
a level of 75 ppb to the state regulations,
which was submitted on July 12, 2011.
EPA is soliciting public comments on
the issues discussed in this document.
These comments will be considered
before taking final action.
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely 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);
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• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the proposed approval of
the adoption of the 1-hour primary SO2
NAAQS into Virginia’s regulation 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, Intergovernmental
relations, Reporting and recordkeeping
requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 3, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2011–26628 Filed 10–13–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 97
[EPA–HQ–OAR–2009–0491; FRL–9479–1]
RIN 2060–AR22
Revisions to Federal Implementation
Plans To Reduce Interstate Transport
of Fine Particulate Matter and Ozone
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing or seeking
comment on revisions to the final
Transport Rule promulgated on August
8, 2011. These revisions address
discrepancies in unit-specific modeling
assumptions that affect the proper
calculation of Transport Rule state
budgets and assurance levels in Florida,
Louisiana, Michigan, Mississippi,
Nebraska, New Jersey, New York, Texas,
and Wisconsin, as well as new unit setasides in Arkansas and Texas. EPA is
SUMMARY:
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also proposing to revise allowance
allocations to specific units covered by
certain consent decrees that restrict the
use of those allowances. These
important technical fixes maintain the
Transport Rule’s ability to achieve the
elimination of significant contribution
and interference with maintenance as
quantified by the proper application of
these methodologies.
EPA is also proposing to amend the
assurance penalty provisions of the rule
to make them effective beginning
January 1, 2014, rather than in 2012, in
order to promote the development of
allowance market liquidity as these
revisions are finalized. EPA believes
that deferring the effective date of the
assurance provisions would provide
additional confidence and would not
compromise the air quality goals of the
program.
In addition, we are proposing to
correct typographical errors in the rule.
Comments: Comments must be
received on or before November 14,
2011 unless a public hearing is
requested in which event comments
must be received on or before November
28, 2011.
Public Hearing: On October 12, 2011,
EPA published a document announcing
that if a public hearing on this proposal
is requested by October 19, 2011, it will
be held on October 28, 2011, at 9 a.m.
at USEPA. Please refer to the public
hearing notice published at 76 FR 63251
for additional information on the public
hearing.
EPA will provide further information
about the hearing on its Web page if a
hearing is requested. Oral testimony
will be limited to the subject matter of
the proposal, the scope of which is
discussed below. Any member of the
public may file a written statement by
the close of the comment period.
DATES:
Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2009–0491, by one of the
following methods:
ADDRESSES:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• Mail: Air and Radiation Docket and
Information Center, U.S. Environmental
Protection Agency, Mailcode: 2822T,
1200 Pennsylvania Avenue, NW.,
Washington, DC 20460.
• Hand Delivery: Air and Radiation
Docket, EPA West Building, Room 3334,
1301 Constitution Avenue, NW.,
Washington, DC 20460. Such deliveries
are only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OAR–2009–
0491. 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.
Category
NAICS code
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Industry .................................................................................
This table is not intended to be
exhaustive, but rather to provide a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities which EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in this table could also be
regulated. To determine whether your
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Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Air and Radiation Docket, EPA West
Building, Room 3334, 1301 Constitution
Avenue, NW., Washington, DC 20460.
The Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744, and
the telephone number for the Air and
Radiation Docket is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT:
Gabrielle Stevens, U.S. Environmental
Protection Agency, Clean Air Markets
Division, MC 6204J, Ariel Rios Building,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460, telephone (202)
343–9252, e-mail at
stevens.gabrielle@epa.gov. Electronic
copies of this document can be accessed
through the EPA Web site at: https://
epa.gov/crossstaterule.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Regulated Entities. Entities regulated
by this action primarily are fossil fuelfired boilers, turbines, and combined
cycle units that serve generators that
produce electricity for sale or cogenerate
electricity for sale and steam. Regulated
categories and entities include:
Examples of potentially regulated industries
Electric service providers.
facility, company, business,
organization, etc., is regulated by this
action, you should carefully examine
the applicability criteria in §§ 97.404,
97.504, and 97.604 of title 40 of the
Code of Federal Regulations. If you have
questions regarding the applicability of
this action to a particular entity, consult
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the person listed in the preceding FOR
section.
FURTHER INFORMATION CONTACT
B. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, an electronic copy of this
proposal will also be available on the
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World Wide Web. Following signature
by the EPA Administrator, a copy of this
action will be posted on the transport
rule Web site https://www.epa.gov/
airtransport.
C. What should I consider as I prepare
my comments for EPA?
1. Submitting CBI. Do not submit this
information to EPA through https://
www.regulations.gov or email. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2. Send or deliver
information identified as CBI only to the
following address: Roberto Morales,
OAQPS Document Control Officer
(C404–02), U.S. EPA, Research Triangle
Park, NC 27711, Attention Docket ID
No. EPA–HQ–OAR–2009–0491.
2. Tips for preparing your comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
• Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
• Describe any assumptions and
provide any technical information and/
or data that you used.
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
• Make sure to submit your
comments by the comment period
deadline identified.
D. How is this preamble organized?
I. General Information
A. Does this action apply to me?
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B. Where can I get a copy of this document
and other related information?
C. What should I consider as I prepare my
comments for EPA?
D. How is the preamble organized?
II. Summary of Proposed Rule and
Background
III. Specific Revisions
A. Budgets/New Unit Set-Aside Revisions
B. Allowance Allocation Revisions to Units
Covered by Existing Utility Consent
Decrees
C. Amend the Assurance Penalty
Provisions To Make Them Effective
Starting in 2014
D. Correct Typographical Errors
IV. Recordation of Transport Rule
Allowances
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
II. Summary of Proposed Rule and
Background
EPA has identified errors or potential
errors in unit-specific modeling
assumptions that affect the proper
calculation of Transport Rule state
budgets in Florida, Louisiana, Michigan,
Mississippi, Nebraska, New Jersey, New
York, Texas, and Wisconsin, as well as
new unit set-asides in Arkansas and
Texas. EPA is proposing to take the
following distinct actions to revise
individual state budgets and new-unit
set asides: (1) Revise Michigan’s annual
NOX budget to account for an
erroneously assumed selective catalytic
reduction (SCR) emission control device
at one unit; (2) revise Nebraska’s annual
NOX budget to account for an
erroneously assumed SCR emission
control device at one unit; (3) revise the
Texas SO2 budget to account for
erroneously assumed flue gas
desulphurization (FGD, or scrubber)
emission control devices at three units
and revised assumptions regarding flue
gas treatment in existing scrubbers at
seven units; (4) revise the Arkansas
ozone-season new unit set-aside to
account for erroneously omitted
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projected emissions from one new unit;
(5) revise the Texas new unit set-aside
to account for erroneously omitted
projected emissions for SO2, ozoneseason NOX, and annual NOX; (6) revise
New Jersey’s ozone season NOX, annual
NOX, and SO2 budgets to account for an
erroneously assumed FGD and SCR
emission control devices at one unit,
and taking into account operational
constraints likely to necessitate noneconomic generation at six facilities; (7)
revise Wisconsin’s SO2 and annual NOX
budgets to account for erroneously
assumed FGD and SCR devices at two
units; (8) revise New York’s SO2, annual
NOX, and ozone season NOX budgets
taking into account operational
constraints likely to necessitate noneconomic generation at ten units; (9)
revise Louisiana’s ozone season NOX
budget taking into account operational
constraints likely to necessitate noneconomic generation at twelve units;
(10) revise Mississippi’s ozone season
NOX budget taking into account
operational constraints likely to
necessitate non-economic generation at
four units; (11) revise the Texas annual
NOX and ozone season NOX budgets
taking into account operational
constraints likely to necessitate noneconomic generation at seven units; and
(12) revise Florida’s ozone-season NOX
budget taking into account the
unavailability of a previously operating
nuclear unit. See section III.A of this
preamble for further explanation of
these revisions.
These proposed revisions to state
budgets also entail revisions to the
affected states’ assurance levels, as the
variability limits for each state are
calculated as a percentage of the
applicable budget. See the final
Transport Rule, 76 FR 48208, 48267–68,
August 8, 2011 (explaining variability
limit derivation). The purpose of these
revisions is to establish state budgets
and new unit set-asides that are
consistent with the proper application
of methodologies established in the final
Transport Rule.
The resulting budgets maintain
significant emission reductions from
historic levels and are consistent with
the final Transport Rule’s methodology
for defining significant contribution and
interference with maintenance. The
changes represent the proper
application of the methodology
established in the final Transport Rule.
No changes to that methodology are
being proposed, and EPA is not
reopening the methodology established
in the final Transport Rule for public
comment. EPA is also not proposing any
change to the levels of stringency (i.e.,
cost per ton) selected in the final
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Transport Rule’s determination of
significant contribution and interference
with maintenance and is not reopening
that issue for public comment. See
‘‘Significant Contribution Assessment
TSD’’ in the docket for this rulemaking
for a demonstration of how the revisions
in this rulemaking represent the proper
application of and are consistent with
the methodology developed in the final
Transport Rule.
It is EPA’s intent, in conducting this
rulemaking, to make the revisions in
this proposal as well as to conduct a
clearly defined, time-limited process by
which any similarly justified revisions
to the final Transport Rule state budgets
are identified and effectuated in a
timely and expeditious manner. To that
end, EPA is seeking that all relevant
information that may support similar
revisions be submitted in full by the
comment deadline on this rulemaking,
such that the Agency may consider
whether a subsequent and timely
rulemaking should address any further
revisions to the final Transport Rule
state budgets. EPA believes that the
likelihood of additional substantive
revisions merited to the Transport Rule
state budgets is limited, considering that
EPA has already conducted several
notice-and-comment processes through
initial proposal of the Transport Rule
and multiple notices of data availability
(NODAs) to prompt the public to
provide the relevant input information
that informs the calculation of the
Transport Rule state budgets. Please see
section III.A of this preamble for a more
detailed description of the type of
information EPA is requesting in
comments on this rulemaking for this
purpose.
EPA is also proposing revisions to
allowance allocations at certain units in
six states that are affected by existing
utility consent decrees. EPA has
identified provisions in certain utility
consent decrees which the Agency
believes would restrict the use of
Transport Rule allowances allocated to
certain units and effectively make
certain Transport Rule reduction
requirements marginally more stringent
than intended by making certain
allowances intended for compliance
purposes unavailable. When
establishing the state budgets under the
final Transport Rule, EPA successfully
accounted for the emission reduction
requirements of these consent decrees;
therefore, the Transport Rule state
budgets sustain the environmental
protection secured by those existing
utility consent decrees. However, when
dividing those state budgets into
individual unit-level allowance
allocations, EPA included allowance
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allocations to certain units that exceed
those units’ allowable emissions under
the terms of the applicable consent
decree. Under these conditions, the
consent decree provisions of concern
identified in this proposal would
determine the quantity of allocated
allowances in excess of allowable
emissions at the unit in question and
prevent them from being available for
compliance use by any source under the
Transport Rule programs. Because EPA
has already secured the environmental
improvements required by the consent
decrees by incorporating their emission
reductions into the Transport Rule state
budgets, there is no environmental need
to prevent the allowances from being
used for compliance by sources subject
to the Transport Rule aside from those
sources whose emissions are restricted
by the terms of the consent decrees to
which they are subject. Therefore, EPA
is proposing to revise Transport Rule
unit-level allowance allocations to the
specific units affected by these consent
decrees to reflect their maximum
allowable emissions, such that none of
the allowances affected by the
provisions of concern are unnecessarily
removed from use for compliance by
other units. While EPA intends to
perform this revision to benefit program
implementation, EPA does not believe
resolution of this issue is a necessary
precondition for successful
implementation of and compliance with
the Transport Rule programs in 2012,
because as described in section IV of
this preamble, notwithstanding these
proposed revisions, EPA will still be
able to distribute 99.7 percent of all
existing unit allowances under the state
budgets established in the final
Transport Rule by that rule’s November
7 deadline. See section III.B of this
preamble for further explanation of this
revision.
EPA is also proposing in this action
to amend the assurance penalty
provisions of the Transport Rule to
make them effective January 1, 2014.
This change takes account of the fact
that the revisions described above are
being proposed, and any information
described above concerning requested
additional revisions may be submitted,
close to the commencement of the
Transport Rule programs. The proposed
amendment to the assurance provisions
is intended to promote the development
of allowance market liquidity as these
revisions are finalized, thereby
smoothing the transition from the Clean
Air Interstate Rule (CAIR) programs to
the Transport Rule programs in 2012.
See section III.C of this preamble for
further explanation of this revision.
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EPA is also proposing to correct
typographical errors in certain sections
of rule text in parts 52 and 97 in the
final Transport Rule. See section III.D of
this preamble for further explanation of
these corrections.
III. Specific Revisions
A. Budget and New Unit Set-Aside
Revisions
After the final Transport Rule was
published, EPA identified discrepancies
in certain data assumptions that
substantially affected the calculation of
a few states’ budgets in the final rule.
Therefore, EPA is proposing the
following revisions:
(1) Increase Michigan’s 2012 and 2014
annual NOX budgets in accordance with
a revision to the final Transport Rule
analysis that erroneously assumed that
an SCR exists at Monroe Unit 2.
EPA is proposing to revise Michigan’s
2012 and 2014 annual NOX budgets in
accordance with a revision to the final
Transport Rule analysis that erroneously
assumed an SCR exists at Monroe Unit
2. This SCR is planned, but is not
expected to be online in 2012 or 2014.
Therefore, EPA is proposing to adjust its
2012 and 2014 projections to reflect
projected emissions without an SCR at
this unit. This would result in a 5,228
ton increase in the state’s annual NOX
budget. See ‘‘Technical Revisions and
Adjustments to State Budgets TSD’’ in
the docket for this rulemaking for a
quantitative demonstration of this
proposed revision, as well as for the
impacts this revision would have on the
state’s assurance level, new unit setaside, and Indian country new unit setaside, and ‘‘Revisions to Unit Level
Allocations under the FIP’’ in the docket
for a quantitative demonstration of the
effect of this revision on unit-level
allocations under the FIP.
This revised assumption about
Monroe Unit 2 would also affect the
calculation of Michigan’s potential
ozone-season NOX budget (as well as the
state’s assurance level, new unit setaside, Indian country new unit setaside, and unit-level allocations under
the FIP) if that state is included in the
Transport Rule ozone-season NOX
program as previously proposed (76 FR
40662, July 11, 2011). EPA will address
this issue, along with other public
comments submitted on that
rulemaking, when the Agency finalizes
that rulemaking later this year.
(2) Increase Nebraska’s 2012 and 2014
annual NOX budgets in accordance with
a revision to the final Transport Rule
analysis that erroneously assumed that
an SCR exists at Nebraska City Unit 1.
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EPA is proposing to increase
Nebraska’s 2012 and 2014 annual NOX
budgets in accordance with a revision to
the final Transport Rule analysis that
erroneously assumed that an SCR exists
at Nebraska City Unit 1. There is no SCR
that is present, planned, or under
construction at the unit. Therefore, EPA
is proposing to adjust its baseline
emission projections for the state to
reflect projected emissions without an
SCR at this unit. This adjustment results
in an increase of 3,599 tons to the state’s
annual NOX budget. See ‘‘Technical
Revisions and Adjustments to State
Budgets TSD’’ in the docket for this
rulemaking for a quantitative
demonstration of this proposed revision,
as well as for the impacts this revision
would have on the state’s assurance
level, new unit set-aside, and Indian
country new unit set-aside, and
‘‘Revisions to Unit Level Allocations
under the FIP’’ in the docket to this
rulemaking for a quantitative
demonstration of the effect of this
proposed revision on unit-level
allocations under the FIP.
(3) Increase the Texas 2012 and 2014
SO2 budgets in accordance with a
revision to the final Transport Rule
analysis that erroneously assumed that
scrubbers exist at W.A. Parish Unit 6,
J.T. Deely Unit 1, and J.T. Deely Unit 2,
and that assumed full flue gas treatment
in existing scrubbers at Martin Lake,
Monticello, Sandow, W.A. Parish, and
Oklaunion facilities.
EPA is proposing to address several
revisions to the modeling assumptions
affecting the calculation of the Texas
SO2 budget. In particular, EPA is
proposing to increase the Texas SO2
budget in accordance with a revision to
the final Transport Rule analysis that
erroneously assumed flue-gas
desulfurization (FGD) technology is
installed on J.T. Deely Units 1 and 2 and
W.A. Parish Unit 6 by 2012. At the time
that EPA conducted its final Transport
Rule analysis to determine state
budgets, EPA had information (both
from public sources, as cited below, as
well as from a private subscription-only
power sector pollution control database)
showing that FGD retrofits for these
sources were originally planned or
announced to be installed by 2012.1 2
However, newer information shows that
1 Corporate Sustainability Report’’, CPS Energy,
2010. P.57. Retrieved from https://
www.cpsenergy.com/files/
Sustainability_Report.pdf.
2 Business Wire, (2006). NRG Announces
Comprehensive Repowering Initiative [Press
release]. Retrieved from https://phx.corporate-ir.net/
phoenix.zhtml?c=121544&p=irolnewsArticle_Print&ID=874575&highlight.
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these FGDs are no longer scheduled to
be installed in 2012.
A number of facilities in Texas
currently face limitations regarding the
amount of flue gas that can be treated in
their existing FGDs. In the final
Transport Rule analysis, EPA relied on
the SO2 removal efficiency that these
facilities reported at their scrubbers to
the Energy Information Administration
(EIA). However, EPA has now
determined that the facilities’ reports
only intended to address the removal
efficiency for the portion of the flue gas
treated in the scrubber. For this reason,
that removal efficiency should not be
applied to the total amount of sulfur
combusted in the coal consumed (as
some of the flue gas at these units must
be vented without being treated in the
scrubber as originally constructed).
When the SO2 removal rates are
decreased to reflect the reported
operational constraint of each affected
scrubber’s flue gas treatment, the
projected emission level for Texas, after
all significant contribution identified in
the final Transport Rule is addressed,
correspondingly rises.
Therefore, in accordance with the
revised unit-level input assumptions
regarding existing scrubbers and flue gas
treatment at the Texas units described
above, EPA is proposing to increase the
state’s 2012 and 2014 SO2 budgets each
by 70,067 tons. See ‘‘Technical
Revisions and Adjustments to State
Budgets TSD’’ in the docket for this
rulemaking for a quantitative
demonstration of how each of these
unit-level adjustments affects the
calculation of this proposed revision, as
well as for the impacts this revision
would have on the state’s assurance
levels, new unit set-aside, and Indian
country new unit set-aside.
(4) Increase Arkansas’ ozone-season
NOX new unit set-aside in accordance
with a revision to the final Transport
Rule’s calculation of the new unit setaside that erroneously omitted Plum
Point Unit 1’s projected emissions.
EPA is not proposing to adjust
Arkansas’ ozone season NOX budget in
this rulemaking. However, EPA is
proposing to adjust the portion of that
budget dedicated to the new unit setaside account. In the final Transport
Rule, EPA had determined a 2 percent
new unit set-aside for ozone season NOX
in the state. That value would be
changed to 5 percent in this rulemaking.
The revision is consistent with the new
unit set-aside methodology described in
the final rule. The updated value simply
reflects the revised classification of one
unit to be treated as a new unit for
purposes of unit-level allowance
allocation. This unit, Plum Point Unit 1,
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commenced commercial operation on or
after January 1, 2010, and therefore
should be considered a new unit under
the final Transport Rule’s unit-level
allocation methodology (76 FR 48290);
however, the final Transport Rule
erroneously omitted this unit’s
projected emissions from the calculation
of Arkansas’ ozone-season NOX new
unit set-aside. Including this unit’s
projected emissions in the calculation
would yield a revised new unit set-aside
of 5 percent of the state’s budget instead
of the previous 2 percent value. See the
‘‘Technical Revisions and Adjustments
to State Budgets TSD’’ in the docket for
this rulemaking for a quantitative
demonstration of this proposed revision.
This proposed revision to Arkansas’
new unit set-aside would necessarily
result in changes to allowance
allocations to existing units. See
‘‘Revisions to Unit Level Allocations
under the FIP’’ tables in the docket to
this rulemaking for a quantitative
demonstration of the effect of this
revision on unit-level allocations under
the FIP.
(5) Increase Texas’ ozone-season NOX,
annual NOX, and SO2 new unit setasides in accordance with a revision to
the final Transport Rule’s calculations
of the new unit set-asides that
erroneously omitted Oak Grove Unit 2’s
projected emissions.
EPA is also proposing a revision to
the calculation of the new unit setasides for ozone-season NOX, annual
NOX, and SO2 in Texas. The updated
values would simply reflect the revised
classification of one unit to be treated as
a new unit for purposes of unit-level
allowance allocation. This unit, Oak
Grove Unit 2, commenced commercial
operation on or after January 1, 2010,
and therefore should be considered a
new unit under the final Transport
Rule’s unit-level allocation
methodology; however, the final
Transport Rule erroneously omitted this
unit’s projected emissions from the
calculation of Texas’s ozone-season
NOX, annual NOX, and SO2 new unit
set-asides. Including this unit’s
projected emissions in the calculation
would yield revised new unit set-asides
of 4 percent of the state’s ozone-season
NOX budget, 4 percent of the state’s
annual NOX budget, and 5 percent of the
state’s SO2 budget. See the ‘‘Technical
Revisions and Adjustments to State
Budgets TSD’’ in the docket for this
rulemaking for a quantitative
demonstration of this proposed revision.
(6) Increase New Jersey’s 2012 and
2014 ozone-season NOX, annual NOX,
and SO2 budgets in accordance with
revisions to the final Transport Rule
analysis that erroneously assumed that
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an SCR and scrubber exist at BL
England Unit 1 and to reflect
operational constraints likely to
necessitate non-economic dispatch at
six other facilities in 2012.
EPA is proposing to revise New
Jersey’s ozone-season NOX, annual NOX,
and SO2 budgets in accordance with
revisions to assumed control
technologies at BL England Unit 1 as
well as operational constraints affecting
units at six other facilities. The SCR and
scrubber that had been planned to be
installed at BL England Unit 1, and
which EPA assumed would be in place
in 2012, are not actually required by a
New Jersey administrative order until
December 2013. Furthermore, the
agreement limits operation of the unit to
the ozone season. Therefore, EPA is
proposing to adjust New Jersey’s 2012
state budgets to reflect projected
emissions without an SCR or scrubber at
this unit and its operation only during
the ozone season.
EPA is also proposing revisions to
New Jersey’s state budgets based on
information demonstrating that northern
New Jersey is an out-of-merit-order
dispatch area, meaning that units in that
area are frequently dispatched out of
regional economic order as a result of
short-run limitations on the ability to
meet local electricity demand with
generation from outside the area.
Conditions in this out-of-merit-order
dispatch area are likely to necessitate
what would otherwise be non-economic
generation at six New Jersey plants
(Bergen, Edison, Essex, Kearny, Linden,
and Sewaren Generating Stations) in the
immediate future. EPA did not consider
these immediate-term conditions in its
calculation of the New Jersey emission
budgets in the final Transport Rule. EPA
is proposing to adjust New Jersey’s
emission budgets based on analysis of
the frequency these units have recently
been called to run for non-economic
purposes, according to data provided by
the utility operating those units.
For this proposal, EPA has calculated
the net change in the state’s 2012 and
2014 total emissions (that inform the
state budgets) to account for increased
generation (and related emissions) from
the specific units affected by the
immediate-term non-economic
constraints described above, as well as
for a corresponding reduction in
generation (and related emissions) at
other units within the state, to maintain
the electricity supply and demand
equilibrium modeled in the final
Transport Rule.
EPA re-calculated the emissions from
BL England Unit 1 and the six plants
with non-economic generation to
account for the input assumption
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changes described above. These
calculations yield increases to the New
Jersey 2012 state budgets for SO2 of
2,096 tons, annual NOX of 420 tons, and
ozone-season NOX of 592 tons; and 2014
state budget increases for annual NOX of
112 tons, and ozone-season NOX of 195
tons. See ‘‘Technical Revisions and
Adjustments to State Budgets TSD’’ in
the docket for this rulemaking for a
quantitative demonstration of this
proposed revision, as well as for the
impacts this revision would have on the
state’s assurance level and new unit setaside, and ‘‘Revisions to Unit Level
Allocations under the FIP’’ in the docket
for a quantitative demonstration of the
effect of this revision on unit-level
allocations under the FIP.
(7) Increase Wisconsin’s 2014 SO2
budget and 2012 and 2014 annual NOX
budget in accordance with a revision to
the final Transport Rule analysis that
erroneously assumed that an FGD exists
at Weston Unit 3, wet FGDs (instead of
dry FGDs) exist at Columbia Units 1 and
2, and a SCR exists at John P. Madgett
Unit 1.
EPA is proposing to increase
Wisconsin’s SO2 budget in accordance
with revisions to the Weston Unit 3 and
Columbia Units 1 and 2 FGD status in
2014. EPA had assumed that a scrubber
would be available at Weston Unit 3 in
2014 in its base case modeling. There is
no FGD expected to be online at the
facility in 2014. The final Transport
Rule did not assume an operating
scrubber at Weston Unit 3 in 2012, but
did assume the FGD would be in place
and operating by 2014. Therefore, EPA
is proposing to adjust Wisconsin’s 2014
SO2 budget to reflect the unit’s
operation without an FGD in 2014.
EPA had also assumed that the two
scrubbers being installed at Columbia
Units 1 and 2 were wet scrubbers.
Instead, dry scrubbers have been
planned and approved at these units. In
EPA’s modeling, the assumed removal
rate of a new wet scrubber is 96 percent
and a new dry scrubber is 92 percent.
Therefore, the 2014 modeled remedy
emissions from these units would be
twice their current amount, if the
assumption of wet scrubbers was
changed to dry scrubbers for the facility.
No change is needed for 2012 since EPA
did not model any scrubbers operating
at those units in that year.
To account for these adjustments,
EPA is proposing to increase the
Wisconsin SO2 budget by a total of
7,757 tons in 2014.
EPA is also proposing to increase
Wisconsin’s annual NOX budget in 2012
and 2014. EPA had assumed a SCR
would be installed at John P. Madgett
Unit 1 in 2012 in its budget
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63865
determination and remedy modeling.
There is no SCR expected to be online
in 2012 or 2014 at the unit. Therefore,
EPA is proposing to adjust Wisconsin’s
annual NOX budgets to reflect the unit’s
operation without a SCR. This would
result in a 2,473 ton increase to the
state’s annual NOX budget.
The revised assumptions about John
P. Madgett Unit 1 would also affect the
calculation of Wisconsin’s potential
ozone-season NOX budget (as well as the
state’s assurance level, new unit setaside, Indian country new unit setaside, and unit-level allocations under
the FIP) if that state is included in the
Transport Rule ozone-season NOX
program as previously proposed (76 FR
40662, July 11, 2011). EPA will address
this issue, along with other public
comments submitted on that
rulemaking, when the Agency finalizes
that rulemaking later this year.
See the ‘‘Technical Revisions and
Adjustments to State Budgets TSD’’ in
the docket for this rulemaking for a
quantitative demonstration of this
proposed revision, as well as for the
impacts this revision would have on the
state’s assurance level, new unit setaside, and Indian country new unit setaside, and ‘‘Revisions to Unit Level
Allocations under the FIP’’ in the docket
for a quantitative demonstration of the
effect of this revision on unit-level
allocations under the FIP.
(8) Increase New York’s 2012 and
2014 ozone-season NOX, annual NOX,
and SO2 budgets in accordance with a
revision to the final Transport Rule
analysis that did not reflect operational
constraints likely to necessitate noneconomic dispatch at certain units.
EPA is proposing to increase the New
York state ozone-season NOX, annual
NOX, and SO2 budgets in accordance
with revisions to the assumed operation
of several specific units in 2012, to
satisfy three specific immediate-term
operational constraints documented by
the New York Independent System
Operator (NYISO). These three
constraints are referred to here as the
N–1–1 Contingency, the Minimum Oil
Burn Rules, and out-of-merit-order
dispatch conditions, which collectively
affect the likely 2012 and 2014
operations of specific units in the New
York City and Long Island areas.
The N–1–1 Contingency requires that
certain units be available to deliver
generation with advance notice of only
30 seconds at certain times during the
year. These specific units require
several hours to reach the necessary
level of generation under these
contingency circumstances; therefore,
the contingency requirement frequently
necessitates their ongoing operation
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whether or not the contingency is
actually triggered at any given time.
Based on information published by
NYISO, EPA identified Arthur Kill
Generating Station, Ravenswood, and
Astoria Generating Station as needing to
maintain minimum generation levels at
two units in each facility to meet the N–
1–1 Contingency constraint.
The Minimum Oil Burn Rules require
that certain units be able to immediately
burn oil in the event of a natural gas
supply disruption to the New York City
and Long Island area infrastructure.
Some units are incapable of
immediately switching fuel, so they
must burn a minimum amount of oil on
an ongoing basis when operating to
comply with this requirement. EPA
determined that the Minimum Oil Burn
Rules would require residual fuel oil
consumption at the Arthur Kill
Generating Station, Ravenswood,
Astoria Generating Station, and
Northport facilities. Based on
information published by the NYISO,
EPA determined that these units would
burn oil in 2012 and 2014 at the same
proportion of total projected heat input
as shown for the share of historic heat
input reported as residual fuel oil at
those facilities.
Data presented in the NYISO 2010
Comprehensive Area Transmission
Review Study and the NYISO Operating
Study, Summer 2011, demonstrate that
Long Island is an out-of-merit-order
dispatch area, meaning that units in that
area are frequently dispatched out of
regional economic order as a result of
short-run limitations on the ability to
meet local electricity demand with
generation from outside the area.
Conditions in this out-of-merit-order
dispatch area are likely to necessitate in
the immediate future what would
otherwise be non-economic generation
at 3 units at the Northport facility.
For this proposal, EPA has calculated
the net change in the state’s total
emissions (that inform the state budgets)
to account for increased generation (and
related emissions) from the specific
units affected by the immediate-term
non-economic constraints described
above, as well as for a corresponding
reduction in generation (and related
emissions) at other units within the
state, to maintain the electricity supply
and demand equilibrium modeled in the
final Transport Rule. These calculations
yield increases to the New York 2012
and 2014 state budgets for SO2 of 3,527
tons, annual NOX of 3,485 tons, and
ozone-season NOX of 1,911 tons. See
‘‘Technical Revisions and Adjustments
to State Budgets TSD’’ in the docket for
this rulemaking for a quantitative
demonstration of this proposed revision,
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as well as for the impacts this revision
would have on the state’s assurance
levels, new unit set-aside, and Indian
country new unit set-aside.
(9) Increase Louisiana’s 2012 and
2014 ozone-season NOX budgets in
accordance with a revision to the final
Transport Rule analysis to reflect
operational constraints likely to
necessitate non-economic dispatch at
twelve units.
EPA is proposing revisions to
Louisiana’s 2012 and 2014 state ozone
season NOX budgets based on
information demonstrating that the West
of the Atchafalaya Basin (WOTAB),
Downstream of Gypsy (DSG), and Amite
South regions of Louisiana are out-ofmerit-order dispatch areas, meaning that
units in those areas are frequently
dispatched out of regional economic
order as a result of short-run limitations
on the ability to meet local electricity
demand with generation from outside
the area. Conditions in these out-ofmerit-order dispatch areas are likely to
necessitate what would otherwise be
non-economic generation at five
Louisiana plants (R.S. Nelson, Nine
Mile Point, Michoud, Little Gypsy, and
Waterford) in the immediate future. EPA
did not consider these immediate-term
conditions in its calculation of the
Louisiana emission budget in the final
Transport Rule. EPA is proposing to
adjust Louisiana’s ozone season NOX
emission budget based on analysis
projecting the minimum frequency these
units will have to run in the immediate
term for non-economic purposes,
according to data provided by the utility
operating those units.
For this proposal, EPA has calculated
the net change in the state’s total
emissions (that inform the state budgets)
to account for increased generation (and
related emissions) from the specific
units affected by the immediate-term
non-economic constraints described
above, as well as for a corresponding
reduction in generation (and related
emissions) at other units within the
state, to maintain the electricity supply
and demand equilibrium modeled in the
final Transport Rule.
EPA re-calculated the emissions from
the five plants with non-economic
generation to account for the input
assumption changes described above.
These calculations yield increases to
Louisiana’s 2012 and 2014 state budgets
for ozone-season NOX of 4,231 tons. See
‘‘Technical Revisions and Adjustments
to State Budgets TSD’’ in the docket for
this rulemaking for a quantitative
demonstration of this proposed revision,
as well as for the impacts this revision
would have on the state’s assurance
level, new unit set-aside, and Indian
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Sfmt 4702
country new unit set-aside, and
‘‘Revisions to Unit Level Allocations
under the FIP’’ in the docket for a
quantitative demonstration of the effect
of this revision on unit-level allocations
under the FIP.
(10) Increase Mississippi’s 2012 and
2014 ozone-season NOX budgets in
accordance with a revision to the final
Transport Rule analysis to reflect
operational constraints likely to
necessitate non-economic dispatch at
certain units.
EPA is proposing revisions to
Mississippi’s state ozone season NOX
budget based on information
demonstrating that the Mississippi
Region is an out-of-merit-order dispatch
area, meaning that units in that area are
frequently dispatched out of regional
economic order as a result of short-run
limitations on the ability to meet local
electricity demand with generation from
outside the area. Conditions in this outof-merit-order dispatch area are likely to
necessitate what would otherwise be
non-economic generation at three
Mississippi plants (Rex Brown, Gerald
Andrus, and Baxter Wilson) in the
immediate future. EPA did not consider
these immediate-term conditions in its
calculation of the Mississippi emission
budget in the final Transport Rule. EPA
is proposing to adjust Mississippi’s 2012
and 2014 ozone season NOX emission
budgets based on analysis projecting the
minimum frequency these units will
have to run in the immediate-term for
non-economic purposes, according to
data provided by the utility operating
those units.
For this proposal, EPA has calculated
the net change in the state’s total
emissions (that inform the state budgets)
to account for increased generation (and
related emissions) from the specific
units affected by the immediate-term
non-economic constraints described
above, as well as for a corresponding
reduction in generation (and related
emissions) at other units within the
state, to maintain the electricity supply
and demand equilibrium modeled in the
final Transport Rule.
EPA re-calculated the emissions from
the three plants with non-economic
generation to account for the input
assumption changes described above.
These calculations yield increases to
Mississippi’s 2012 and 2014 state
budgets for ozone-season NOX of 2,136
tons. See ‘‘Technical Revisions and
Adjustments to State Budgets TSD’’ in
the docket for this rulemaking for a
quantitative demonstration of this
proposed revision, as well as for the
impacts this revision would have on the
state’s assurance level, new unit setaside, and Indian country new unit set-
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aside, and ‘‘Revisions to Unit Level
Allocations under the FIP’’ in the docket
for a quantitative demonstration of the
effect of this revision on unit-level
allocations under the FIP.
(11) Increase Texas’s 2012 and 2014
annual and ozone-season NOX budgets
in accordance with a revision to the
final Transport Rule analysis to reflect
operational constraints likely to
necessitate non-economic dispatch at
certain units.
EPA is proposing revisions to Texas’s
2012 and 2014 state annual and ozone
season NOX budgets based on
information demonstrating that the West
of the Atchafalaya Basin (WOTAB) and
Western Regions are out-of-merit-order
dispatch areas, meaning that units in
those areas are frequently dispatched
out of regional economic order as a
result of short-run limitations on the
ability to meet local electricity demand
with generation from outside the area.
Conditions in these out-of-merit-order
dispatch areas are likely to necessitate
what would otherwise be non-economic
generation at two Texas plants (Lewis
Creek and Sabine) in the immediate
future. EPA did not consider these
immediate-term conditions in its
calculation of the Texas emission
budgets in the final Transport Rule. EPA
is proposing to adjust Texas’s emission
budgets based on analysis projecting the
minimum frequency these units will
have to run in the immediate-term for
non-economic purposes, according to
data provided by the utility operating
those units.
For this proposal, EPA has calculated
the net change in the state’s total
emissions (that inform the state budgets)
to account for increased generation (and
related emissions) from the specific
units affected by the immediate-term
non-economic constraints described
above, as well as for a corresponding
reduction in generation (and related
emissions) at other units within the
state, to maintain the electricity supply
and demand equilibrium modeled in the
final Transport Rule.
EPA re-calculated the emissions from
the two plants with non-economic
generation to account for the input
assumption changes described above.
These calculations yield increases to
Texas’s 2012 and 2014 state budgets for
annual NOX of 1,375 tons and ozoneseason NOX of 1,375 tons. See
‘‘Technical Revisions and Adjustments
to State Budgets TSD’’ in the docket for
this rulemaking for a quantitative
demonstration of this proposed revision,
as well as for the impacts this revision
would have on the state’s assurance
level, new unit set-aside, and Indian
country new unit set-aside, and
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‘‘Revisions to Unit Level Allocations
under the FIP’’ in the docket for a
quantitative demonstration of the effect
of this revision on unit-level allocations
under the FIP.
(12) Increase Florida’s 2012 ozoneseason NOX budget in accordance with
a revision to the final Transport Rule
analysis to reflect the unavailability of
Crystal River Unit 3, a nuclear unit.
EPA’s power sector analysis in the
final Transport Rule that informed its
calculation of Florida’s state ozoneseason budget included generation from
Crystal River Unit 3, a nuclear unit that
has operated historically. However,
utilities in Florida have notified EPA
that this unit will be offline for repairs
throughout 2012 and is expected to
return to service in 2013. As such, EPA
expects that the generation previously
projected in the Transport Rule analysis
from this unit in 2012 will necessarily
have a different origin with different
emission consequences that should be
considered in the calculation of
Florida’s ozone-season NOX state
budget. EPA has calculated that this
replacement generation would yield an
increase of 819 tons of ozone-season
NOX in 2012 and is proposing to
increase Florida’s 2012 ozone-season
NOX budget by 819 tons, accordingly.
See ‘‘Technical Revisions and
Adjustments to State Budgets TSD’’ in
the docket for this rulemaking for a
quantitative demonstration of this
proposed revision, as well as for the
impacts this revision would have on the
state’s assurance level, new unit setaside, and Indian country new unit setaside, and ‘‘Revisions to Unit Level
Allocations under the FIP’’ in the docket
for a quantitative demonstration of the
effect of this revision on unit-level
allocations under the FIP.
EPA has also received and is making
available in the public docket for this
proposal additional unit-level
information provided by Florida
utilities addressing assumptions of each
unit’s ability to control ozone-season
NOX. EPA requests comment on all
aspects of the data in the docket,
including whether the emission data
provided in this information is a more
accurate representation of achievable
NOX emission rates in 2012, and
whether using this data would be
consistent with the methodology used
in the Transport Rule. EPA specifically
requests comment on whether this
information could support a further
revision to the state’s ozone-season NOX
budget, and if so, how such a revision
should be calculated. See ‘‘Information
Submitted by Florida Utilities’’ in the
docket for this rulemaking.
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63867
Further Explanation on Revisions and
Request for Comments. All of the
proposed revisions to state budgets and
new unit set-asides described above
would correspondingly affect unit-level
allowance allocations in the states
involved. Specifically, any changes to
the levels of new unit set-asides or state
budgets would be carried through to
unit-level allocations based on the final
Transport Rule allocation methodology
for existing units (including any
amendments made to specific unit-level
allocations in this rulemaking,
described below). For example, if a state
budget would increase, then the share of
that increase going to existing units
would be apportioned based on the final
Transport Rule’s allocation
methodology to existing units (aside
from specific unit-level allocation
adjustments included in this proposal
pertinent to utility consent decrees,
discussed below in section III.B of this
preamble). Unit-level allocations to
potential covered sources under the
Transport Rule have been updated to
reflect all of the proposed revisions
described in this proposal and are set
forth in the ‘‘Revisions to Unit Level
Allocations under the FIP’’ TSD in the
docket for this rulemaking.
EPA evaluated the likely air quality
impacts of the revisions presented above
using the air quality assessment tool, on
a state-by-state and case-by-case basis,
for the SO2 budget increases in 2014 for
Texas, New York, and Wisconsin, and
compared those estimates to the final
Transport Rule air quality analysis. The
results do not change the conclusions
that EPA made about the
appropriateness of controlling upwind
emissions at the cost-effective
thresholds selected in the final
Transport Rule to successfully quantify
and eliminate significant contribution to
nonattainment and interference with
maintenance at downwind receptors.
For more information, this evaluation
can be found in the ‘‘Significant
Contribution Assessment Technical
Support Document’’ in the docket for
this rulemaking.
For this proposal, EPA also assessed
this proposal’s revisions to annual NOX
and ozone-season NOX state budgets
against each state’s total NOX emission
inventories which informed the air
quality projections in the final
Transport Rule analysis. The annual
NOX budget increases for Michigan,
Nebraska, New Jersey, New York, Texas,
and Wisconsin are 5,228, 3,599, 112,
3,485, 1,375 and 2,473 tons,
respectively. Comparing those budget
increases to the total 2014 annual NOX
emission inventories in those states
under the final Transport Rule’s control
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scenario analysis, EPA calculates that
these revisions represent increases of
1.2 percent, 2.1 percent, 0.1 percent, 0.8
percent, 0.1 percent, and 1.0 percent,
respectively, of the total annual NOX
emission inventories for those states in
the final Transport Rule’s 2014 control
scenario analysis. See the ‘‘Significant
Contribution Assessment TSD’’ in the
docket for this rulemaking for more
details. These increases represent only a
small portion of each state’s total NOX
emissions.
The ozone-season NOX budget
increases in 2014 for Louisiana,
Mississippi, New Jersey, New York, and
Texas are 4,231, 2,136, 195, 1,911, and
1,375 tons, respectively. Comparing
those budget increases to the total 2014
ozone-season NOX emission inventories
in those states under the final Transport
Rule’s control scenario analysis, EPA
calculates that these revisions represent
increases of 2.2 percent, 2.4 percent, 0.2
percent, 1.0 percent, and 0.2 percent,
respectively, of the total ozone-season
NOX emission inventories for those
states in the final Transport Rule’s 2014
control scenario analysis. See the
‘‘Significant Contribution Assessment
TSD’’ in the docket for this rulemaking
for more details. These increases
represent only a small portion of each
state’s total ozone-season NOX
emissions.
EPA requests comment on the revised
unit-level and utility-system operational
information described above and on the
corresponding proposed revisions in
state budgets, variability limits, new
unit set-asides, Indian country new unit
set-asides, and unit-level allocations
resulting from the application of such
revised information using the
methodologies set forth in the final
Transport Rule for developing state
budgets, variability limits, new unit setasides, Indian country new unit setasides, and unit-level allocations. EPA
is not requesting comment on those
methodologies set forth in the final
Transport Rule. For example, EPA is not
seeking comment on the methodology
by which existing unit allocations are
determined with regard to any given
Transport Rule state budget.3
3 Further, EPA notes that the proposed rule text
includes tables that are complete in that they show,
for each Transport Rule trading program, both (i)
The amounts for certain state budgets, new unit setasides, Indian country set-asides, and state
variability limits that reflect proposed revisions
discussed in this notice; and (ii) the amounts for
other state budgets, new unit set-asides, Indian
country set-asides, and state variability limits
amounts that do not reflect any proposed revisions
discussed in this notice. Except as discussed below
in this section of the notice, EPA is not requesting
comment on those budgets, new unit set-asides,
Indian country set-asides, and variability limits that
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Moreover, EPA recognizes that parties
may be aware of other immediate-term
unit-specific operational constraints not
accounted for in the final Transport
Rule whose inclusion may warrant
revisions in state budgets, with
associated revisions to the state
assurance levels and unit-level
allocations for existing units. EPA has
already provided several
opportunities—through the proposed
Transport Rule and subsequent notices
of data availability—for the public,
including stakeholders, to present unitlevel information demonstrating
constraints on immediate-term
operations. However, EPA will accept—
by the deadline for comment on this
proposal—submission of additional
unit-level operational information that
would have a material impact on the
calculation of Transport Rule state
budgets (with associated impacts on
corresponding assurance levels and
unit-level allocations for existing units).
For this purpose, EPA intends a
‘‘material impact’’ to reflect a
corresponding recalculation of the
relevant state budget that would be at
least 1 percent different from that
budget’s value as calculated in the final
Transport Rule (76 FR 48208, August 8,
2011). EPA remains focused on
successful implementation of the
Transport Rule programs and does not
believe that a change of less than 1
percent in a state’s budget would be a
meaningful action to further this goal.
As a result, EPA encourages
commenters to consider whether or not
revisions to a given unit’s or group of
units’ input assumptions would yield a
material impact of at least a 1 percent
difference in the calculation of the
relevant state budget before submitting
this information to EPA for review.
EPA is therefore accepting for review
information provided in comments on
this rulemaking specifically addressing
the following topics for specific electric
generating units:
(1) Post-combustion pollution control
equipment (such as SCRs and FGDs)
assumed in the final Transport Rule
are shown in the proposed rule text tables but that
do not reflect the proposed revisions discussed in
this notice. For example, the budget and new unit
set-aside revisions discussed in this section of the
notice involve only a limited number of states (i.e.,
Arkansas, Florida, Louisiana, Michigan,
Mississippi, Nebraska, New Jersey, New York,
Texas, and Wisconsin). Except as discussed below
in this section of the notice, EPA is not reopening,
or requesting comment on, amounts in the proposed
rule text tables for any other states. By further
example, this section of the notice discusses a
revision of Arkansas’ new unit set-aside, but not of
Arkansas’ budget. Except as discussed below in this
section of the notice, EPA is not requesting
comment on the amount of Arkansas’ budget.
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analyses to be present by 2012 at the
unit in question; and/or
(2) Immediate-term (i.e., binding on
2012) operational requirements
necessitating non-economic generation
at the unit in question, including data
that demonstrate why the unit in
question is required to generate in the
immediate term for reasons other than
the regional economic sale of electricity,
and how often during the ozone season
and during the calendar year that such
non-economic generation is necessitated
from that unit.
EPA will review information provided
in comments addressing the topics
described above and will determine if
any of the information merits a
subsequent proposal of revisions to the
Transport Rule programs beyond the
actions presented in this proposal.
B. Allowance Allocation Revisions to
Units Covered by Existing Utility
Consent Decrees
After the final Transport Rule was
published, EPA determined that while
the state budgets accurately
incorporated the emission reduction
requirements of existing utility consent
decrees, the unit-level allowance
allocations under the Transport Rule
FIPs did not properly account for
provisions in those consent decrees that
effectively require the surrender, or
restrict the trading, of ‘‘excess’’
Transport Rule allowances. As a result,
Transport Rule allowance allocations to
certain units may unintentionally
reduce the availability of some of those
allowances to other sources, given the
restrictions on the use of those
allowances by the initial recipient unit
imposed by the applicable consent
decree.
In today’s action, EPA is proposing to
add a constraint on Transport Rule unitlevel allowance allocations designed to
reflect the maximum allowable
emissions at the units affected by
existing utility consent decrees which
contain annual tonnage limits and
require the surrender or restrict trading
of Transport Rule allowances allocated
in excess of annual tonnage limits. See
‘‘Assessment of Impact of Consent
Decree Annual Tonnage Limits on
Transport Rule Allocations TSD’’ in the
docket for this rulemaking for
information on the consent decrees
covered by the proposed addition of the
new constraint for purposes of
determining unit-level allocations.
The addition of this constraint would
align unit level allocations for units
described in several existing Federallyenforceable consent decrees with the
annual tonnage limits in those decrees.
This constraint would prevent heat
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input-based allocations from exceeding
the terms of Federally-enforceable
consent decrees that contain annual
tonnage limits for SO2 and/or NOX.
Because existing consent decrees that
establish annual tonnage limits for SO2
and/or NOX do so at the system or
facility level, EPA calculated unit-level
annual tonnage limit equivalents (unitlevel caps) for purposes of allocating
allowances to individual units. EPA is
not seeking comment on any elements
of the allocation methodology finalized
in the final Transport Rule (76 FR
48288–90). Rather, EPA is seeking
comment only on the addition of a unitlevel consent decree constraint and
unit-level cap apportionment
methodology.
The proposed additional constraint
would affect unit-level allocations in six
states—Alabama, Indiana, Kansas,
Kentucky, Ohio, and Tennessee—with
units subject to existing Federallyenforceable consent decree annual
tonnage limits. These consent decree
requirements have already been
accounted for in the determination of
budgets for these states. EPA is
proposing to establish unit-level caps
for 82 units covered by annual tonnage
limits in Federally-enforceable consent
decrees in these six states. The addition
of this constraint would not alter any
state budget. This additional constraint
also would have no impact on existing
unit-level allocations in states that do
not contain units covered by a
Federally-enforceable consent decree
with annual tonnage limits.
EPA is proposing to revise the
Transport Rule unit-level allocations for
the specific units subject to these
consent decrees, such that allowance
allocations would be constrained by
both historical emissions (as described
in the final Transport Rule (76 FR
48290)) and a unit-level cap derived
from the annual tonnage limit in the
Federally-enforceable consent decree.
Although these revisions would not
alter the state budgets, they would have
the effect of increasing the number of
allowances within the budget that are
available for use for compliance
purposes and that would not otherwise
be available without this proposed
change to the allocation of allowances—
such that the total number of allowances
available would equal the state’s
emission budget, as intended. These
proposed revisions are thus intended to
revise the application of the final
Transport Rule’s unit-level allowance
allocation methodology to enable the
proper implementation of state budgets
under the programs. While EPA intends
to perform this revision to benefit
program implementation, EPA does not
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believe resolution of this issue is a
necessary precondition for successful
implementation of and compliance with
the Transport Rule programs in 2012, as
notwithstanding these proposed
revisions, EPA will still be able to
distribute 99.7 percent of all existing
unit allowances under the state budgets
established in the final Transport Rule
by that rule’s November 7 deadline. See
section IV of this preamble for further
information about allowance
recordation.
EPA calculated unit-level caps for
each unit subject to an SO2 and/or NOX
annual tonnage limit contained in a
Federally-enforceable consent decree. A
unit-level cap is an apportionment of
the applicable system- or facility-wide
consent decree annual tonnage limit.
The apportionment of a system- or
facility-wide consent decree annual
tonnage limit to a unit level is solely for
the purposes of Transport Rule
allocations and does not modify, or
create additional, consent decree
requirements or limitations.
EPA is not proposing to limit
allocations to units covered by consent
decrees that do not contain SO2 and or
NOX annual tonnage limits. The Agency
determined that calculation of unit-level
caps where annual tonnage limits do not
exist would require the use of unit-level
projections whose application in setting
unit-level allocations would be difficult
to support and that, in any event,
adjustment of unit—level allocations
using such unit-level caps would not be
necessary. Calculating a unit-level cap
from other consent decree directives
would require projections about future
utilization and emissions performance
of each unit involved, increasing the
complexity and uncertainty of the
approach. Further, EPA believes that
there are few Transport Rule allowances
that might be rendered unavailable for
compliance by the consent decrees that
contain trading restrictions or allowance
surrender requirements but that do not
contain annual tonnage limits.
EPA is proposing to follow a two-step
methodology to identify the specific
unit-level allocation constraints that
would be associated with this proposed
additional constraint. First, EPA would
determine if the annual tonnage limit in
an existing Federally-enforceable
consent decree that is already reflected
in a state budget is more restrictive than
the unit-level allocations under the
Transport Rule by comparing the
Federally-enforceable consent decree
annual tonnage limits for calendar year
2012 and thereafter to aggregate unitlevel allocations (as determined using
the approach finalized in the final
Transport Rule) for all units affected by
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the annual tonnage limit. If in 2012 or
thereafter the collective unit-level
allocations are greater than the
Federally-enforceable consent decree
annual tonnage limit, EPA would apply
unit-level caps equal, in aggregate, to
the Federally-enforceable consent
decree annual tonnage limit.
If a unit is shut down by a Federallyenforceable consent decree or, in the
case of SO2, repowers to natural gas or
shuts down, the unit-level cap would be
calculated as zero in any year following
the required shut down or repower
when the unit would otherwise receive
allocations using the approach in the
final Transport Rule (76 FR 48287 and
48289–90).
Second, EPA would calculate unitlevel caps for 2012 and thereafter on
Transport Rule allowances for each unit
covered by a system- or facility-wide
annual tonnage limit in a Federallyenforceable consent decree that is more
restrictive than current allocations for
the units involved. To accomplish this,
EPA would first calculate a ratio,
expressed as a percentage, comparing
the annual tonnage limit in the
Federally-enforceable consent decree to
the aggregate allocations listed in the
‘‘Final Transport Rule Unit Level
Allocations under the FIP’’ (https://www.
epa.gov/crossstaterule/actions.html) for
units covered by the Federallyenforceable consent decree annual
tonnage limit to the annual tonnage
limit. EPA would then multiply this
ratio by the unit-level allocation listed
in the ‘‘Final Transport Rule Unit Level
Allocations under the FIP’’ (https://www.
epa.gov/crossstaterule/actions.html) for
each unit involved. The allocations for
a given year would be limited to this
unit-level cap. As noted above, in some
situations the unit level cap for a 2012
or thereafter would be zero if a
Federally-enforceable consent decree
requires the shutdown or repowering of
a unit.
An example of how EPA would
determine unit level caps follows:
Step 1—EPA determines that facility ABC
consists of two units subject to both a
Federally-enforceable consent decree annual
tonnage limit and the Transport Rule NOX
annual program. The consent decree systemwide annual tonnage limit is 3,000 tons in
calendar year 2012. The NOX allowance heat
input-based allocation (as described in the
final Transport Rule (76 FR 48288–90)) for
the two units in calendar year 2012 is 4,000
allowances to Unit 1 and 2,000 allowances to
Unit 2—a total of 6,000 allowances. Because
the total of the allowances allocated to the
two units is higher than the annual tonnage
limit, EPA needs to calculate unit-level caps
for Unit 1 and Unit 2.
Step 2a—The consent decree system-wide
annual tonnage limit of 3,000 tons is divided
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by the system-wide heat input-based
allocations of 6,000 tons resulting in a ratio
of 0.5, or 50 percent.
Step 2b—EPA calculates the unit-level cap
for Unit 1 as 4,000 allowances × 50 percent,
or 2,000 allowances, and for Unit 2 as 2,000
allowances × 50 percent, or 1,000 allowances.
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EPA would apply this additional unitlevel constraint when calculating
existing unit-level allocations under the
final Transport Rule FIPs. This
additional unit level constraint would
be applied in steps 9 and 10 of the
methodology described in the preamble
to the final Transport Rule (76 FR
48290). This additional constraint
would be applied in step 9 to limit
allocations to existing units covered by
consent decrees. This constraint would
be applied in step 10 to ensure that any
allowances that cannot be allocated to
existing units (because all existing units
are subject to either the constraint on
maximum historical emissions or this
additional constraint) would be directed
to the state’s new unit set aside. For
example, EPA has determined that, if
this additional constraint is finalized as
proposed, all the units in the state of
Tennessee would be constrained by
either historical emissions or a unitlevel cap for the Transport Rule SO2
Group 1 program in calendar years
2013, 2018, 2019, and each year
thereafter. As described above, the new
unit set aside for the state of Tennessee
would increase in 2013, 2018, 2019, and
each year thereafter, by 8,460, 3,173 and
5,225 tons respectively.
EPA is not seeking comment on any
aspects of the allocation methodology in
the final Transport Rule (76 FR 48290).
EPA is only seeking comment on the
addition of the constraint described
above to steps 9 and 10 of that
methodology. See ‘‘Assessment of
Impact of Consent Decree Annual
Tonnage Limits on Transport Rule
Allocations TSD’’ in the docket for this
rulemaking for further information on
the proposed addition of the new
constraint for purposes of determining
unit-level allocations.
C. Amend the Assurance Penalty
Provisions To Make Them Effective
Starting in 2014
EPA is also proposing in this action
to amend the effective date of the
Transport Rule assurance provisions to
make them effective beginning on
January 1, 2014. During outreach
discussions with various stakeholders,
the application of assurance penalties at
the outset of the program has been
raised as a major concern for
compliance and market development in
the early years of the program. Several
stakeholders have expressed concern
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that Transport Rule allowance market
development may be delayed by
uncertainty over how each state will
transition from 2010 and 2011 emission
levels to meet the projected Transport
Rule assurance levels in 2012 and 2013.
Under the assurance provisions, a
state’s emissions for any control period
in a given year must not exceed the state
assurance level, i.e., the state budget
plus the state’s variability limit. In order
to implement this requirement, EPA
first determines whether, for the control
period, any state’s total emissions
exceeded the state’s assurance level. If
a state had emissions exceeding the
state assurance level, then EPA applies
additional criteria to determine which
owners and operators of units in the
state will be subject to the assurance
penalty, which is a requirement to
surrender additional allowances. In
applying the additional criteria, EPA
identifies which groups of units with a
common designated representative (DR)
in the state had emissions exceeding the
respective common DR’s share of the
state assurance level, and calculates
what percentage each such group’s
emissions above the common DR’s share
comprise of the state’s emissions above
the state assurance level. The assurance
penalty applied to the owners and
operators of each of those groups of
units is the surrender of an amount of
allowances equal to the state’s
emissions above the state assurance
level multiplied by the group’s
percentage and multiplied by two (in
order to reflect the penalty of two
allowances for each ton of the state’s
excess emissions). EPA implements the
assurance penalty provisions through a
series of notices of data availability that
make available the necessary
calculations and provide an opportunity
for public objections to the calculations.
The requirements that owners and
operators comply with the assurance
provisions, including where appropriate
the assurance penalty, and the
procedures followed by the
Administrator are set forth in 40 CFR
97.406(c)(2) and 97.425 (for the TR NOX
annual program), 97.506(c)(2) and
97.525 (for the TR NOX ozone season
program), 97.606(c)(2) and 97.625 (for
the TR SO2 Group 1 program), and
97.706(c)(2) and 97.725 (for the TR SO2
Group 2 program).
EPA proposes to determine that
amending the assurance provisions to
take effect starting in 2014 is
appropriate. EPA believes that a limited
postponement of the effectiveness of
these provisions is justified in order to
smooth the transition from the existing
CAIR programs to the new Transport
Rule programs.
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In line with the Court’s remand of
CAIR, EPA designed the Transport Rule
to achieve necessary emission
reductions by relevant NAAQS
attainment deadlines and to ensure that
necessary reductions will be achieved
within each covered state. As explained
in the final Transport Rule, EPA
determined that it was appropriate for
the Transport Rule programs to address
emissions in 2012 and beyond in order
to ensure that the deadlines in the rule
were aligned, as legally required, with
the downwind nonattainment deadlines
(76 FR 48277–48279). CAIR remains in
effect to address emissions through the
end of the 2011 control periods, and the
Transport Rule programs address
emissions in 2012 and beyond.
EPA took several steps in the final
Transport Rule to ease the transition
from the CAIR programs to the
Transport Rule trading programs.
The Transport Rule maintains
programmatic elements that were
successfully implemented and
recognizable to sources from
compliance experiences under CAIR
while also addressing that rule’s legal
shortcomings identified by the Court.
Under both CAIR and the Transport
Rule, individual units have the
flexibility to supplement their own
emission reductions with the
acquisition from the marketplace of any
additional allowances needed to cover
emissions under the Transport Rule
programs. Robust markets (e.g., markets
with a high level of liquidity and
accessibility of price information) for
the CAIR annual NOX, CAIR ozoneseason NOX, and Acid Rain (SO2)
program allowances have been in
existence for many years. Sources
covered by CAIR have relied on the
availability of these robust markets
when developing compliance plans. The
Transport Rule (TR) creates new TR SO2
Group 1, TR SO2 Group 2, TR NOX, and
TR ozone-season NOX allowances.
Markets for these allowances are
developing now, and EPA is beginning
to record the allowances in allowance
accounts and introduce the allowances
into the marketplace over a year before
the Transport Rule programs’ first
compliance deadlines (December 1,
2012, for the 2012 ozone-season NOX
program, and March 1, 2013, for the
2012 annual NOX and SO2 programs).
However, with the allocation revisions
proposed in this rulemaking and the
potential for additional revisions based
on additional information that might be
submitted in response to this
rulemaking, some allowances would be
recorded and introduced into the
marketplace at later dates.
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Based on observed compliance
planning behavior among sources
anticipating the 2012 control periods,
and in light of the proposed revisions in
this rulemaking and the potential for
additional revisions based on additional
information, EPA believes that
amending the effective date of the
assurance provisions to apply in 2014
would ease the transition from CAIR to
Transport Rule compliance for parties
across the board by promoting the
liquidity of, and accessibility of price
information in, new Transport Rule
allowance markets and instilling
confidence that utilities can flexibly
comply through a variety of unit-level
operational strategies that are not
limited by initial Transport Rule unitlevel allowance allocations.
EPA believes that this change would
accelerate the development of robust
Transport Rule allowance markets and
facilitate a smooth transition to the
Transport Rule programs. If, in response
to concerns about when robust markets
will develop, utilities were to artificially
constrain 2012 operational plans to not
exceed initially allocated allowances,
the volume of early trading activity
might be unnecessarily limited. Early
trading activity is important for
demonstrating market liquidity and
assisting in price discovery to inform
compliance planning by affected
sources. Actions by utilities to limit
early trading activity, therefore, could
have negative impacts not only on those
utilities, but on all participants in the
Transport Rule trading programs. EPA
believes that amending the effectiveness
of the assurance provisions in 2012 and
2013 would encourage greater
confidence among utilities for engaging
immediately in cost-effective
compliance planning that takes into
account the flexibility of a robust market
for acquiring allowances to cover
emissions to the extent use of
allowances is the most economic
approach for compliance under the
Transport Rule programs.
Amending the assurance provisions
would not affect, in any way, the
requirements of the rule in 2014 and
beyond. EPA is proposing only a short
postponement of the assurance penalty
provisions to ensure a smooth transition
from CAIR to the Transport Rule
programs. EPA believes that,
notwithstanding postponement of the
assurance penalty provisions, the states
covered by the Transport Rule programs
will still achieve the emission
reductions in 2012 and 2013 necessary
to eliminate each state’s significant
contribution to nonattainment and
interference with maintenance
identified in the final Transport Rule
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(with the revisions included in this
proposal). The highly detailed statespecific bases on which individual state
budgets were determined using the
approach and methodologies developed
in the final Transport Rule, and
included in the record for the Transport
Rule, together with the derivation of the
variability limits from historic data
reflecting state-level year-to-year
variation in power sector emissions,
support EPA’s belief. EPA noted in the
Transport Rule proposal that knowledge
about installed air pollution control
equipment ‘‘* * * provides greater
certainty of where [near-term]
reductions will occur and how these
reductions should impact air quality in
downwind areas. * * * Consequently,
EPA believes that there is a high level
of certainty that emissions reductions
projected for 2012–2013 with interstate
trading would be achieved within the
states where they are projected to occur,
making imposition of the assurance
provisions during 2012–2013
unnecessary’’ (75 FR 45314–45315).
In the final Transport Rule, EPA did
not disavow the proposal’s rationale for
starting the assurance provisions in
2014; however, the Agency chose to
make the assurance provisions effective
starting in 2012 with the intent to err on
the side of providing ‘‘even further
assurance’’ of securing the targeted
emission reductions in upwind states
(76 FR 48296). EPA, therefore, has never
concluded that starting the assurance
provisions in 2014 would fail to meet
the 110(a)(2)(D) obligation to eliminate
significant contribution or interference
with maintenance in 2012 and 2013.
Moreover, this proposal’s revisions to
pollution control technology
assumptions involve only 17 units of
the approximately 3,600 units whose
known controls inform the Transport
Rule budgets. EPA continues to believe
that, because the immediate-term
Transport Rule state budgets for 2012
and 2013 (in contrast with the budgets
for 2014 and thereafter) are uniquely
based on the ability of the known
existing fleet of EGUs and known
existing or soon-to-be-installed
pollution control equipment to deliver
emission reductions in specific upwind
states, there is a high level of certainty
that the state assurance levels will not
be exceeded in 2012 and 2013. EPA
believes that this near-term certainty
allows the Agency to postpone the
effectiveness of the Transport Rule’s
assurance penalty provisions until 2014
without sacrificing the Transport Rule’s
ability to ensure necessary near-term
emission reductions in each upwind
state, supported by the calculation of
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each upwind state’s emission reduction
potential (informing the determination
of state budgets) under the rule.
With the proposed, temporary
postponement of the assurance
provisions, EPA believes that, in the
near term (as well as in the long term),
Transport Rule allowance markets
would provide compliance flexibility at
the unit level and incentivize costeffective, unit-level emission
reductions. In the aggregate, these
flexibilities and reductions at the unit
level would result in achievement in
each state of the state-level cost-effective
emission reductions projected in the
final Transport Rule (with the revisions
included in this proposal). In other
words, EPA is only proposing to
postpone temporarily the assurance
penalty provisions to address the ability
of owners and operators of individual
units to make the cost-effective emission
reductions in 2012 and 2013 on which
EPA’s state-level emission projections
relied in determining each state’s
amount of significant contribution and
interference with maintenance under
the final Transport Rule. Consequently,
EPA believes that this proposal to
postpone temporarily the assurance
provisions will not yield substantially
different state-level emission outcomes
under the Transport Rule programs in
2012 or 2013 than the state-level
emissions reflected in the state-specific
budgets and assurance levels in the
respective Transport Rule program.
EPA believes that a two year
postponement of the effective date of
the assurance penalty provisions is
sufficient to guarantee robust market
development, is consistent with the DC
Circuit’s decision leaving CAIR in place
during the transition to a new rule, and
will not interfere with the air quality
objectives of the program. EPA does not,
at this time, believe a longer
postponement would be justified. EPA
requests comment on all aspects of this
proposal including the length of the
postponement.
Since under this proposal, the
assurance provisions would continue to
be effective for 2014 and thereafter, EPA
maintains that the Transport Rule,
revised consistent with this proposal,
would continue to address and meet the
Court’s concerns in North Carolina.
Any revisions to state budgets from
this proposal that are finalized would
also include corresponding revisions to
the relevant assurance levels that would
apply in 2014 with this proposed
postponement.
D. Correct Typographical Errors
EPA is proposing to correct
typographical errors in certain sections
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of rule text in parts 52 and 97 in the
final Transport Rule. Specifically, EPA
proposes to change an erroneous
reference in 40 CFR 52.39(i)(1)(ii) to
‘‘TR SO2 Group 1 allowances’’ to refer
instead to ‘‘TR SO2 Group 2 allowances’’
and to redesignate sections 52.745 and
52.746 in 40 CFR part 52, subpart O as
sections 52.731 and 52.732 and
redesignate section 52.2241 in 40 CFR
part 52, subpart VV as section 52.2441.
EPA also proposes to remove some
redundant words in 40 CFR
97.406(e)(2), 97.606(e)(2), and
97.706(E)(2). EPA requests comment
concerning only the specific corrections
and not concerning any other aspect of
the provisions in which these
corrections would be made.
tkelley on DSK3SPTVN1PROD with PROPOSALS
IV. Recordation of Transport Rule
Allowances
Impacts on Allocations to Existing Units
EPA recognizes that successful
implementation of the Transport Rule
programs in 2012 depends in part on the
development of robust allowance
markets, in which covered sources can
locate and purchase any additional
allowances necessary to comply with
the rule. As such, EPA intends to
allocate as many 2012 Transport Rule
allowances as possible as early as
possible to assist implementation and
compliance planning. While none of the
actions presented in this proposal
would reduce any state’s total number
of allowances issued under that state’s
budgets, some of the actions presented
in this proposal would slightly alter unit
level allocations. For example, as
described above, allocations to certain
units covered by consent decrees would
be limited. EPA does not believe it
would be prudent or reasonable to
record in allowance accounts, before
taking final action on this proposal,
allowance allocations in excess of the
amount any given unit would receive if
this proposal is finalized as proposed.
EPA will record by November 7, 2011
for each unit, the lesser of the amount
that unit would receive under the
allocation scheme finalized in the
Transport Rule or the amount the unit
would receive if this proposal is
finalized as proposed. This approach
will allow EPA to allocate over 99.7
percent of all existing unit allowances
under the state budgets established in
the final Transport Rule by that rule’s
November 7 deadline (76 FR 48398,
48424, 48450, and 48475, August 8,
2011). During this timeframe, the only
units that will receive substantially
fewer allowances under this approach
than under the allocations as finalized
in the Transport Rule are units already
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subject to legally binding consent
decrees that limit their emissions;
therefore, EPA does not believe this
approach will have any negative impact
on compliance planning at sources in
anticipation of the implementation of
the Transport Rule programs. EPA is
proposing to allocate the remaining 0.3
percent of the allowances no later than
7 days after finalization of this action is
legally effective. In addition, if EPA
finalizes the proposed actions that yield
increases to state budgets, the Agency
will act swiftly to record these
additional allowances and thereby put
them into the marketplace as quickly as
possible following this rule’s
finalization, so that the allowances
would be available significantly in
advance of the compliance deadlines for
the 2012 control periods (i.e., the
allowance transfer deadlines of
December 1, 2012 (for the NOX ozone
season program) and March 1, 2013 (for
the NOX and SO2 annual programs)).
See the ‘‘Transport Rule Allowance
Recordation Schedule TSD’’ in the
docket for this rulemaking for a
demonstration of how many allowances
EPA will record by November 7, 2011 in
each state.
V. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is a
‘‘significant regulatory action.’’
Accordingly, EPA submitted this action
to the Office of Management and Budget
(OMB) for review under Executive
Orders 12866 and 13563 (76 FR 3821,
January 21, 2011) and any changes made
in response to OMB recommendations
have been documented in the docket for
this action.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. This
action makes relatively minor revisions
to the emission budgets and allowance
allocations or allowance allocations
only in certain states in the final
Transport Rule and corrects minor
technical errors which are ministerial.
However, the Office of Management and
Budget (OMB) has previously approved
the information collection requirements
contained in the final Transport Rule
under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB control number
2060–0667. The OMB control numbers
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for EPA’s regulations in 40 CFR are
listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of today’s rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s action on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
The small entities directly regulated by
this action are electric power generators
whose ultimate parent entity has a total
electric output of 4 million megawatthours (MWh) or less in the previous
fiscal year. We have determined that the
changes considered in this proposed
rulemaking pose no additional burden
for small entities. The proposed revision
to the new unit set-asides in Arkansas
and Texas would yield an extremely
small change in unit-level allowance
allocations to existing units, including
small entities, such that it would not
affect the analysis conducted on small
entity impacts under the finalized
Transport Rule. In all other states, the
revisions proposed in this rulemaking
would yield additional allowance
allocations to all units, including small
entities, without increasing program
stringency, such that it is not possible
for the impact to small entities to be any
larger than that already considered and
reviewed in the finalized Transport
Rule.
D. Unfunded Mandates Reform Act
This action does not contain a Federal
mandate that may result in expenditures
of $100 million or more for State, local,
and Tribal governments, in the
aggregate, or the private sector in any
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one year. This action is increasing the
budgets and increasing the total number
of allowances or maintaining the same
budget but revising unit-level
allocations in several other states in the
Transport Rule. Thus, this rule is not
subject to the requirements of sections
202 or 205 of UMRA.
In developing the final Transport
Rule, EPA consulted with small
governments pursuant to a plan
established under section 203 of UMRA
to address impacts of regulatory
requirements in the rule that might
significantly or uniquely affect small
governments.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This action
makes relatively minor revisions to the
emissions budgets and allowance
allocations or allowance allocations
only in certain states in the final
Transport Rule. Thus, Executive Order
13132 does not apply to this rule. EPA
did provide information to state and
local officials during development of
both the proposed and final Transport
Rule.
tkelley on DSK3SPTVN1PROD with PROPOSALS
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have Tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). This action makes relatively
minor revisions to the emissions
budgets and allowance allocations in
several states in the final Transport Rule
and helps ease the transition from CAIR.
Indian country new unit set-asides will
increase slightly or remain unchanged
in the states affected by this action.
Thus, Executive Order 13175 does not
apply to this action. EPA consulted with
Tribal officials during the process of
promulgating the final Transport Rule to
permit them to have meaningful and
timely input into its development.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
This action is not subject to EO 13045
(62 FR 19885, April 23, 1997) because
it is not economically significant as
defined in EO 12866, and because the
Agency does not believe the
environmental health or safety risks
addressed by this action present a
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disproportionate risk to children.
Analyses by EPA that show how the
emission reductions from the strategies
in the final Transport Rule will further
improve air quality and children’s
health can be found in the final
Transport Rule RIA.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant
energy action’’ as defined in Executive
Order 13211 (66 FR 28355 (May 22,
2001)), because it is not likely to have
a significant adverse effect on the
supply, distribution, or use of energy.
EPA believes that there is no meaningful
impact to the energy supply beyond that
which is reported for the Transport Rule
program in the final Transport Rule.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law No.
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
As described in section XII.I of the
preamble to the final Transport Rule,
the Transport Rule program requires all
sources to meet the applicable
monitoring requirements of 40 CFR part
75. Part 75 already incorporates a
number of voluntary consensus
standards. This action, however, does
not involve technical standards.
Therefore, EPA did not consider the use
of any voluntary consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
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63873
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this action
will not have disproportionately high
and adverse human health or
environmental effects on minority or
low-income populations because it does
not affect the level of protection
provided to human health or the
environment. EPA believes that the vast
majority of communities and
individuals in areas covered by the
Transport Rule program inclusive of this
action, including numerous lowincome, minority, and Tribal
individuals and communities in both
rural areas and inner cities in the
eastern and central U.S., will see
significant improvements in air quality
and resulting improvements in health.
EPA’s assessment of the effects of the
final Transport Rule program on these
communities is detailed in section XII.J
of the preamble to the final Transport
Rule.
List of Subjects
40 CFR Part 52
Administrative practice and
procedure, Air pollution control,
Incorporation by reference,
Intergovernmental relations, Nitrogen
oxides, Ozone, Particulate matter,
Regional haze, Reporting and
recordkeeping requirements, Sulfur
dioxide.
40 CFR Part 97
Administrative practice and
procedure, Air pollution control,
Electric utilities, Nitrogen oxides,
Reporting and recordkeeping
requirements, Sulfur dioxide.
Dated: October 6, 2011.
Lisa P. Jackson,
Administrator.
For the reasons set forth in the
preamble, parts 52 and 97 of chapter I
of title 40 of the Code of Federal
Regulations are proposed to be amended
as follows:
PART 52—[AMENDED]
1. The authority citation for Part 52
continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A—General Provisions
§ 52.39
[Amended]
2. In § 52.39 amend paragraph (i)(1)(ii)
by removing the words ‘‘Group 1’’ and
adding, in their place, the words ‘‘Group
2’’.
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Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules
Subpart O—Illinois
Authority: 42 U.S.C. 7401, 7403, 7410,
7426, 7601, and 7651, et seq.
§ 52.745
7. Section 97.406 is amended:
a. In paragraph (c)(3) by removing the
words ‘‘paragraphs (c)(1) and (2)’’,
adding in their place the words
‘‘paragraph (c)(1)’’ and designating the
first sentence as paragraph (c)(3)(i);
b. By adding a new paragraph
(c)(3)(ii); and
c. In paragraph (e)(2) by removing the
words ‘‘or or’’ and adding, in their
place, the word ‘‘or’’.
The addition reads as follows:
[Redesignated as § 52.731]
3. Section 52.745, as published at 76
FR 48363, August 8, 2011, is
redesignated as § 52.731.
§ 52.746
[Redesignated as § 52.732]
4. Section 52.746 is redesignated as
§ 52.732.
Subpart VV—Virginia
§ 52.2241
[Redesignated as § 52.2441]
5. Section 52.2241, as published at 76
FR 48376, August 8, 2011, is
redesignated as § 52.2441.
PART 97—[AMENDED]
6. The authority citation for Part 97
continues to read as follows:
§ 97.406
Standard requirements.
*
*
*
*
*
(c) * * *
(3) * * *
(ii) A TR NOX Annual unit shall be
subject to the requirements under
NOX Annual trading
budget (tons)* for 2012
and 2013
State
Alabama .......................................................................................
Georgia ........................................................................................
Illinois ...........................................................................................
Indiana .........................................................................................
Iowa .............................................................................................
Kansas .........................................................................................
Kentucky ......................................................................................
Maryland ......................................................................................
Michigan .......................................................................................
Minnesota ....................................................................................
Missouri ........................................................................................
Nebraska ......................................................................................
New Jersey ..................................................................................
New York .....................................................................................
North Carolina ..............................................................................
Ohio .............................................................................................
Pennsylvania ................................................................................
South Carolina .............................................................................
Tennessee ...................................................................................
Texas ...........................................................................................
Virginia .........................................................................................
West Virginia ................................................................................
Wisconsin .....................................................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS
Alabama .......................................................................................
Georgia ........................................................................................
Illinois ...........................................................................................
Indiana .........................................................................................
Iowa .............................................................................................
Kansas .........................................................................................
Kentucky ......................................................................................
Maryland ......................................................................................
Michigan .......................................................................................
Minnesota ....................................................................................
Missouri ........................................................................................
Nebraska ......................................................................................
New Jersey ..................................................................................
New York .....................................................................................
North Carolina ..............................................................................
Ohio .............................................................................................
Pennsylvania ................................................................................
South Carolina .............................................................................
Tennessee ...................................................................................
Texas ...........................................................................................
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§ 97.410 State NOX Annual trading
budgets, new unit set-asides, Indian
country new unit set-aside, and variability
limits.
(a) The State NOX Annual trading
budgets, new unit set-asides, and Indian
country new unit set-asides for
allocations of TR NOX Annual
allowances for the control periods in
2012 and thereafter are as follows:
New unit set-aside
(tons) for 2012 and 2013
Indian country new unit
set-aside (tons) for 2012
and 2013
1,454
1,240
3,830
3,292
729
583
3,403
333
1,243
561
1,571
1772
154
400
2,984
1,854
2,400
617
714
5,264
1,662
2,974
2,012
........................................
........................................
........................................
........................................
38
31
........................................
........................................
65
30
........................................
30
........................................
21
51
........................................
........................................
33
........................................
135
........................................
........................................
34
72,691
62,010
47,872
109,726
38,335
30,714
85,086
16,633
65,421
29,572
52,374
30,039
7,686
21,028
50,587
92,703
119,986
32,498
35,703
134,970
33,242
59,472
34,101
NOX Annual trading
budget (tons)* for 2014
and thereafter
State
paragraph (c)(2) of this section for the
control period starting on the later of
January 1, 2014 or the deadline for
meeting the unit’s monitor certification
requirements under § 97.430(b) and for
each control period thereafter.
*
*
*
*
*
8. Section 97.410 is revised to read as
follows:
New unit set-aside
(tons) for 2014 and
thereafter
71,962
40,540
47,872
108,424
37,498
25,560
77,238
16,574
63,040
29,572
48,717
30,039
7,378
21,028
41,553
87,493
119,194
32,498
19,337
134,970
Fmt 4702
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E:\FR\FM\14OCP1.SGM
1,439
811
3,830
3,253
712
485
3,090
331
1,198
561
1,462
1,772
148
400
2,451
1,750
2,384
617
387
5,264
14OCP1
Indian country new unit
set-aside (tons) for 2014
and thereafter
........................................
........................................
........................................
........................................
38
26
........................................
........................................
63
30
........................................
30
........................................
21
42
........................................
........................................
33
........................................
135
Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules
NOX Annual trading
budget (tons)* for 2014
and thereafter
State
Virginia .........................................................................................
West Virginia ................................................................................
Wisconsin .....................................................................................
New unit set-aside
(tons) for 2014 and
thereafter
33,242
54,582
32,871
1,662
2,729
1,939
63875
Indian country new unit
set-aside (tons) for 2014
and thereafter
........................................
........................................
33
* Each trading budget includes the new unit set-aside and, where applicable, the Indian country new unit set-aside and does not include the
variability limit.
(b) The States’ variability limits for
the State NOX Annual trading budgets
for the control periods in 2014 and
thereafter are as follows:
State
Variability limits
for 2014 and
thereafter
Alabama ............................
Georgia .............................
Illinois ................................
Indiana ..............................
Iowa ..................................
Kansas ..............................
Kentucky ...........................
Maryland ...........................
Michigan ...........................
Minnesota .........................
Missouri ............................
Nebraska ..........................
New Jersey .......................
New York ..........................
North Carolina ..................
Ohio ..................................
Pennsylvania ....................
South Carolina ..................
12,953
7,297
8,617
19,516
6,750
4,601
13,903
2,983
11,347
5,323
8,769
5,407
1,328
3,785
7,480
15,749
21,455
5,850
(c) * * *
(3) * * *
(ii) A TR NOX Ozone Season unit
Tennessee ........................
3,481 shall be subject to the requirements
Texas ................................
24,295 under paragraph (c)(2) of this section for
Virginia ..............................
5,984 the control period starting on the later
West Virginia ....................
9,825 of May 1, 2014 or the deadline for
Wisconsin .........................
5,917
meeting the unit’s monitor certification
requirements under § 97.530(b) and for
§ 97.425 [Amended]
each control period thereafter.
9. Section 97.425 is amended in
*
*
*
*
*
paragraph (b)(1) by removing the figure
11. Section 97.510 is revised to read
‘‘2013’’ and adding in its place the
as follows:
figure ‘‘2015’’.
10. Section 97.506 is amended:
§ 97.510 State NOX Ozone Season trading
a. In paragraph (c)(3) by removing the budgets, new unit set-asides, Indian
words ‘‘paragraphs (c)(1) and (2)’’,
country new unit set-aside, and variability
adding in their place the words
limits.
‘‘paragraph (c)(1)’’ and designating the
(a) The State NOX Ozone Season
first sentence as paragraph (c)(3)(i); and
trading budgets, new unit set-asides,
b. Adding a new paragraph (c)(3)(ii).
and Indian country new unit set-asides
The addition reads as follows:
for allocations of TR NOX Ozone Season
§ 97.506 Standard requirements.
allowances for the control periods in
*
*
*
*
*
2012 and thereafter are as follows:
Variability limits
for 2014 and
thereafter
State
NOX Ozone Season
trading budget (tons) *
for 2012 and 2013
State
Alabama .......................................................................................
Arkansas ......................................................................................
Florida ..........................................................................................
Georgia ........................................................................................
Illinois ...........................................................................................
Indiana .........................................................................................
Kentucky ......................................................................................
Louisiana ......................................................................................
Maryland ......................................................................................
Mississippi ....................................................................................
New Jersey ..................................................................................
New York .....................................................................................
North Carolina ..............................................................................
Ohio .............................................................................................
Pennsylvania ................................................................................
South Carolina .............................................................................
Tennessee ...................................................................................
Texas ...........................................................................................
Virginia .........................................................................................
West Virginia ................................................................................
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Alabama .......................................................................................
Arkansas ......................................................................................
Florida ..........................................................................................
Georgia ........................................................................................
Illinois ...........................................................................................
Indiana .........................................................................................
Kentucky ......................................................................................
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Indian country new unit
set-aside (tons) for 2012
and 2013
635
752
544
559
1,697
1,406
1,447
512
144
234
79
195
1,308
801
1,044
264
298
2,513
723
1,264
........................................
........................................
29
........................................
........................................
........................................
........................................
18
........................................
12
........................................
10
22
........................................
........................................
14
........................................
64
........................................
........................................
31,746
15,037
28,644
27,944
21,208
46,876
36,167
17,663
7,179
12,296
3,974
10,242
22,168
40,063
52,201
13,909
14,908
64,418
14,452
25,283
NOX Ozone Season
trading budget (tons) *
for 2014 and thereafter
State
New unit set-aside
(tons) for 2012 and 2013
New unit set-aside
(tons) for 2014 and
thereafter
31,499
15,037
27,825
18,279
21,208
46,175
32,674
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E:\FR\FM\14OCP1.SGM
630
752
529
366
1,697
1,385
1,307
14OCP1
Indian country new unit
set-aside (tons) for 2014
and thereafter
........................................
........................................
28
........................................
........................................
........................................
........................................
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NOX Ozone Season
trading budget (tons) *
for 2014 and thereafter
State
Louisiana ......................................................................................
Maryland ......................................................................................
Mississippi ....................................................................................
New Jersey ..................................................................................
New York .....................................................................................
North Carolina ..............................................................................
Ohio .............................................................................................
Pennsylvania ................................................................................
South Carolina .............................................................................
Tennessee ...................................................................................
Texas ...........................................................................................
Virginia .........................................................................................
West Virginia ................................................................................
New unit set-aside
(tons) for 2014 and
thereafter
17,663
7,179
12,296
3,577
10,242
18,455
37,792
51,912
13,909
8,016
64,418
14,452
23,291
512
144
234
72
195
1,089
756
1,038
264
160
2513
723
1,165
Indian country new unit
set-aside (tons) for 2014
and thereafter
18
........................................
12
........................................
10
18
........................................
........................................
14
........................................
64
........................................
........................................
* Each trading budget includes the new unit set-aside and, where applicable, the Indian country new unit set-aside and does not include the
variability limit.
(b) The States’ variability limits for
the State NOX Ozone Season trading
budgets for the control periods in 2014
and thereafter are as follows:
State
Variability limits
for 2014 and
thereafter
Alabama ............................
Arkansas ...........................
Florida ...............................
Georgia .............................
Illinois ................................
Indiana ..............................
Kentucky ...........................
Louisiana ..........................
Maryland ...........................
Mississippi ........................
New Jersey .......................
New York ..........................
North Carolina ..................
Ohio ..................................
Pennsylvania ....................
South Carolina ..................
Tennessee ........................
Texas ................................
Virginia ..............................
6,615
3,158
5,843
3,839
4,454
9,697
6,862
3,709
1,508
2,582
751
2,151
3,876
7,936
10,902
2,921
1,683
13,528
3,035
(c) * * *
(3) * * *
(ii) A TR SO2 Group 1 unit shall be
West Virginia ....................
4,891 subject to the requirements under
paragraph (c)(2) of this section for the
control period starting on the later of
§ 97.525 [Amended]
January 1, 2014 or the deadline for
12. Section 97.525 is amended in
meeting the unit’s monitor certification
paragraph (b)(1) by removing the figure
requirements under § 97.630(b) and for
‘‘2013’’ and adding in its place the
each control period thereafter.
figure ‘‘2015’’.
13. Section 97.606 is amended:
*
*
*
*
*
a. In paragraph (c)(3) by removing the
14. Section 97.610 is revised to read
words ‘‘paragraphs (c)(1) and (2)’’ and
as follows:
adding in their place the words
‘‘paragraph (c)(1)’’ and designating the
§ 97.610 State SO2 Group 1 trading
first sentence as paragraph (c)(3)(i);
budgets, new unit set-asides, Indian
b. By adding a new paragraph
country new unit set-aside, and variability
(c)(3)(ii); and
limits.
c. In paragraph (e)(2) by removing the
(a) The State SO2 Group 1 trading
words ‘‘or or’’ and adding, in their
budgets, new unit set-asides, and Indian
place, the word ‘‘or’’.
country new unit set-asides for
The addition reads as follows:
allocations of TR SO2 Group 1
§ 97.606 Standard requirements.
allowances for the control periods in
*
*
*
*
*
2012 and thereafter are as follows:
SO2 Group 1 trading
budget (tons) * for 2012
and 2013
State
tkelley on DSK3SPTVN1PROD with PROPOSALS
Variability limits
for 2014 and
thereafter
State
New unit set-aside
(tons) for 2012 and 2013
Indian country new unit
set-aside (tons) for 2012
and 2013
234,889
285,424
107,085
232,662
30,120
229,303
207,466
7,670
30,852
136,881
310,230
278,651
148,150
70,820
146,174
79,480
11,744
8,563
2,035
13,960
602
4,357
4,149
153
586
10,813
6,205
5,573
2,963
2,833
10,232
3,099
........................................
........................................
107
........................................
........................................
229
........................................
........................................
31
137
........................................
........................................
........................................
........................................
........................................
80
Illinois ...........................................................................................
Indiana .........................................................................................
Iowa .............................................................................................
Kentucky ......................................................................................
Maryland ......................................................................................
Michigan .......................................................................................
Missouri ........................................................................................
New Jersey ..................................................................................
New York .....................................................................................
North Carolina ..............................................................................
Ohio .............................................................................................
Pennsylvania ................................................................................
Tennessee ...................................................................................
Virginia .........................................................................................
West Virginia ................................................................................
Wisconsin .....................................................................................
VerDate Mar<15>2010
15:18 Oct 13, 2011
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Fmt 4702
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E:\FR\FM\14OCP1.SGM
14OCP1
Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules
SO2 Group 1 trading
budget (tons)* for 2014
and thereafter
State
Illinois ...........................................................................................
Indiana .........................................................................................
Iowa .............................................................................................
Kentucky ......................................................................................
Maryland ......................................................................................
Michigan .......................................................................................
Missouri ........................................................................................
New Jersey ..................................................................................
New York .....................................................................................
North Carolina ..............................................................................
Ohio .............................................................................................
Pennsylvania ................................................................................
Tennessee ...................................................................................
Virginia .........................................................................................
West Virginia ................................................................................
Wisconsin .....................................................................................
New unit set-aside
(tons) for 2014 and
thereafter
124,123
161,111
75,184
106,284
28,203
143,995
165,941
5,574
22,112
57,620
137,077
112,021
58,833
35,057
75,668
47,883
6,206
4,833
1,429
6,377
564
2,736
3,319
111
420
4,552
2,742
2,240
1,177
1,402
5,297
1867
63877
Indian country new unit
set-aside (tons) for 2014
and thereafter
........................................
........................................
75
........................................
........................................
144
........................................
........................................
22
58
........................................
........................................
........................................
........................................
........................................
48
* Each trading budget includes the new unit set-aside and, where applicable, the Indian country new unit set-aside and does not include the
variability limit.
(b) The States’ variability limits for
the State SO2 Group 1 trading budgets
for the control periods in 2014 and
thereafter are as follows:
State
Variability limits
for 2014 and
thereafter
Illinois ................................
Indiana ..............................
Iowa ..................................
Kentucky ...........................
Maryland ...........................
Michigan ...........................
Missouri ............................
New Jersey .......................
New York ..........................
North Carolina ..................
Ohio ..................................
Pennsylvania ....................
Tennessee ........................
Virginia ..............................
West Virginia ....................
Wisconsin .........................
22,342
29,000
13,533
19,131
5,077
25,919
29,869
1,003
3,980
10,372
24,674
20,164
10,590
6,310
13,620
8,619
§ 97.625
[Amended]
15. Section 97.625 is amended in
paragraph (b)(1) by removing the figure
‘‘2013’’ and adding in its place the
figure ‘‘2015’’.
16. Section 97.706 is amended:
a. In paragraph (c)(3) by removing the
words ‘‘paragraphs (c)(1) and (2)’’ and
adding in their place the words
‘‘paragraph (c)(1)’’ and designating the
first sentence as paragraph (c)(3)(i);
b. By adding a new paragraph
(c)(3)(ii); and
c. In paragraph (e)(2) by removing the
words ‘‘or or’’ and adding, in their
place, the word ‘‘or’’.
The addition reads as follows:
§ 97.706
*
Standard requirements.
*
*
(c) * * *
(3) * * *
*
*
Indian country new unit
set-aside (tons) for 2012
and 2013
216,033
158,527
41,528
41,981
65,052
88,620
314,021
4,321
3,171
789
798
2,537
1,683
15,387
........................................
........................................
42
42
65
89
314
SO2 Group 2 trading
budget (tons) * for 2014
and thereafter
tkelley on DSK3SPTVN1PROD with PROPOSALS
State
Alabama .......................................................................................
Georgia ........................................................................................
Kansas .........................................................................................
Minnesota ....................................................................................
Nebraska ......................................................................................
South Carolina .............................................................................
Jkt 226001
(a) The State SO2 Group 2 trading
budgets, new unit set-asides, and Indian
country new unit set-asides for
allocations of TR SO2 Group 2
allowances for the control periods in
2012 and thereafter are as follows:
New unit set-aside
(tons) for 2012 and 2013
Alabama .......................................................................................
Georgia ........................................................................................
Kansas .........................................................................................
Minnesota ....................................................................................
Nebraska ......................................................................................
South Carolina .............................................................................
Texas ...........................................................................................
15:18 Oct 13, 2011
§ 97.710 State SO2 Group 2 trading
budgets, new unit set-asides, Indian
country new unit set-aside, and variability
limits.
SO2 Group 2 trading
budget (tons) * for 2012
and 2013
State
VerDate Mar<15>2010
(ii) A TR SO2 Group 2 unit shall be
subject to the requirements under
paragraph (c)(2) of this section for the
control period starting on the later of
January 1, 2014 or the deadline for
meeting the unit’s monitor certification
requirements under § 97.730(b) and for
each control period thereafter.
*
*
*
*
*
14. Section 97.710 is revised to read
as follows:
PO 00000
Frm 00032
New unit set-aside
(tons) for 2014 and
thereafter
213,258
95,231
41,528
41,981
65,052
88,620
Fmt 4702
Sfmt 4702
E:\FR\FM\14OCP1.SGM
4,265
1,905
789
798
2,537
1,683
14OCP1
Indian country new unit
set-aside (tons) for 2014
and thereafter
........................................
........................................
42
42
65
89
63878
Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules
SO2 Group 2 trading
budget (tons) * for 2014
and thereafter
State
Texas ...........................................................................................
New unit set-aside
(tons) for 2014 and
thereafter
314,021
15,387
Indian country new unit
set-aside (tons) for 2014
and thereafter
314
* Each trading budget includes the new unit set-aside and, where applicable, the Indian country new unit set-aside and does not include the
variability limit.
(b) The States’ variability limits for
the State SO2 Group 2 trading budgets
for the control periods in 2014 and
thereafter are as follows:
State
Variability limits
for 2014 and
thereafter
Alabama ............................
Georgia .............................
Kansas ..............................
Minnesota .........................
Nebraska ..........................
South Carolina ..................
Texas ................................
38,386
17,142
7,475
7,557
11,709
15,952
56,524
15. Section 97.725 is amended by, in
paragraph (b)(1), removing the word
‘‘2013’’ and adding, in its place, the
word ‘‘2015’’.
[FR Doc. 2011–26521 Filed 10–13–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 60
[EPA–HQ–OAR–2010–0750; FRL–9477–1]
RIN 2060–AQ10
New Source Performance Standards
Review for Nitric Acid Plants
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The EPA is proposing
revisions to the new source performance
standards (NSPS) for nitric acid plants.
Nitric acid plants include one or more
nitric acid production units. These
proposed revisions include a change to
the nitrogen oxides (NOX) emission
limit, which applies to each nitric acid
production unit commencing
construction, modification, or
reconstruction after October 14, 2011.
These proposed revisions will also
include additional testing and
monitoring requirements.
DATES: Comments must be received on
or before November 28, 2011. Under the
Paperwork Reduction Act, comments on
the information collection provisions
are best assured of having full effect if
the Office of Management and Budget
(OMB) receives a copy of your
tkelley on DSK3SPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Mar<15>2010
15:18 Oct 13, 2011
Jkt 226001
comments on or before November 14,
2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2010–0750, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Agency Web site: https://
www.epa.gov/oar/docket.html. Follow
the instructions for submitting
comments on the EPA Air and Radiation
Docket Web site.
• E-mail: a-and-r-Docket@epa.gov.
Include EPA–HQ–OAR–2010–0750 in
the subject line of the message.
• Fax: Fax your comments to: (202)
566–9744, Attention Docket ID No.
EPA–HQ–OAR–2010–0750.
• Mail: Send your comments to: EPA
Docket Center (EPA/DC), Environmental
Protection Agency, Mailcode: 2822T,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Attention:
Docket ID No. EPA–HQ–OAR–2010–
0750. Please include a total of two
copies. In addition, please mail a copy
of your comments on the information
collection provisions to the Office of
Information and Regulatory Affairs,
Office of Management and Budget
(OMB), Attn: Desk Officer for EPA, 725
17th St., NW., Washington, DC 20503.
• Hand Delivery or Courier: In person
or by courier, deliver comments to EPA
Docket Center, EPA West, Room 3334,
1301 Constitution Ave., NW.,
Washington, DC 20460. Such deliveries
are only accepted during the Docket
Center’s normal hours of operation,
(8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays), and
special arrangements should be made
for deliveries of boxed information.
Please include a total of two copies.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
rulemaking. All comments received will
be posted without change to 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
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means that the 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 the 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
will be made available on the Internet.
If you submit an electronic comment,
the 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. For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see the ‘‘General Information’’ heading
of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available (e.g., CBI or other
information whose disclosure is
restricted by statute). Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy form. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the EPA Docket Center, Public Reading
Room, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the Air
Docket is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT: For
questions about these proposed
standards for nitric acid production
units, contact Mr. Chuck French, Sector
E:\FR\FM\14OCP1.SGM
14OCP1
]]>Agencies
[Federal Register Volume 76, Number 199 (Friday, October 14, 2011)]
[Proposed Rules]
[Pages 63860-63878]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26521]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 97
[EPA-HQ-OAR-2009-0491; FRL-9479-1]
RIN 2060-AR22
Revisions to Federal Implementation Plans To Reduce Interstate
Transport of Fine Particulate Matter and Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing or seeking comment on revisions to the final
Transport Rule promulgated on August 8, 2011. These revisions address
discrepancies in unit-specific modeling assumptions that affect the
proper calculation of Transport Rule state budgets and assurance levels
in Florida, Louisiana, Michigan, Mississippi, Nebraska, New Jersey, New
York, Texas, and Wisconsin, as well as new unit set-asides in Arkansas
and Texas. EPA is
[[Page 63861]]
also proposing to revise allowance allocations to specific units
covered by certain consent decrees that restrict the use of those
allowances. These important technical fixes maintain the Transport
Rule's ability to achieve the elimination of significant contribution
and interference with maintenance as quantified by the proper
application of these methodologies.
EPA is also proposing to amend the assurance penalty provisions of
the rule to make them effective beginning January 1, 2014, rather than
in 2012, in order to promote the development of allowance market
liquidity as these revisions are finalized. EPA believes that deferring
the effective date of the assurance provisions would provide additional
confidence and would not compromise the air quality goals of the
program.
In addition, we are proposing to correct typographical errors in
the rule.
DATES: Comments: Comments must be received on or before November 14,
2011 unless a public hearing is requested in which event comments must
be received on or before November 28, 2011.
Public Hearing: On October 12, 2011, EPA published a document
announcing that if a public hearing on this proposal is requested by
October 19, 2011, it will be held on October 28, 2011, at 9 a.m. at
USEPA. Please refer to the public hearing notice published at 76 FR
63251 for additional information on the public hearing.
EPA will provide further information about the hearing on its Web
page if a hearing is requested. Oral testimony will be limited to the
subject matter of the proposal, the scope of which is discussed below.
Any member of the public may file a written statement by the close of
the comment period.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0491, by one of the following methods:
https://www.regulations.gov: Follow the on-line
instructions for submitting comments.
Mail: Air and Radiation Docket and Information Center,
U.S. Environmental Protection Agency, Mailcode: 2822T, 1200
Pennsylvania Avenue, NW., Washington, DC 20460.
Hand Delivery: Air and Radiation Docket, EPA West
Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC
20460. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0491. 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. For additional information about EPA's public
docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Air and Radiation
Docket, EPA West Building, Room 3334, 1301 Constitution Avenue, NW.,
Washington, DC 20460. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the Air and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Gabrielle Stevens, U.S. Environmental
Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone
(202) 343-9252, e-mail at stevens.gabrielle@epa.gov. Electronic copies
of this document can be accessed through the EPA Web site at: https://epa.gov/crossstaterule.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Regulated Entities. Entities regulated by this action primarily are
fossil fuel-fired boilers, turbines, and combined cycle units that
serve generators that produce electricity for sale or cogenerate
electricity for sale and steam. Regulated categories and entities
include:
------------------------------------------------------------------------
Examples of
potentially
Category NAICS code regulated
industries
------------------------------------------------------------------------
Industry....................... 2211, 2212, 2213 Electric service
providers.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather to provide
a guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities which EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in this table could also be regulated. To determine whether
your facility, company, business, organization, etc., is regulated by
this action, you should carefully examine the applicability criteria in
Sec. Sec. 97.404, 97.504, and 97.604 of title 40 of the Code of
Federal Regulations. If you have questions regarding the applicability
of this action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this proposal will also be available on the
[[Page 63862]]
World Wide Web. Following signature by the EPA Administrator, a copy of
this action will be posted on the transport rule Web site https://www.epa.gov/airtransport.
C. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
https://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2. Send or deliver information
identified as CBI only to the following address: Roberto Morales, OAQPS
Document Control Officer (C404-02), U.S. EPA, Research Triangle Park,
NC 27711, Attention Docket ID No. EPA-HQ-OAR-2009-0491.
2. Tips for preparing your comments.
When submitting comments, remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
D. How is this preamble organized?
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
C. What should I consider as I prepare my comments for EPA?
D. How is the preamble organized?
II. Summary of Proposed Rule and Background
III. Specific Revisions
A. Budgets/New Unit Set-Aside Revisions
B. Allowance Allocation Revisions to Units Covered by Existing
Utility Consent Decrees
C. Amend the Assurance Penalty Provisions To Make Them Effective
Starting in 2014
D. Correct Typographical Errors
IV. Recordation of Transport Rule Allowances
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
II. Summary of Proposed Rule and Background
EPA has identified errors or potential errors in unit-specific
modeling assumptions that affect the proper calculation of Transport
Rule state budgets in Florida, Louisiana, Michigan, Mississippi,
Nebraska, New Jersey, New York, Texas, and Wisconsin, as well as new
unit set-asides in Arkansas and Texas. EPA is proposing to take the
following distinct actions to revise individual state budgets and new-
unit set asides: (1) Revise Michigan's annual NOX budget to
account for an erroneously assumed selective catalytic reduction (SCR)
emission control device at one unit; (2) revise Nebraska's annual
NOX budget to account for an erroneously assumed SCR
emission control device at one unit; (3) revise the Texas
SO2 budget to account for erroneously assumed flue gas
desulphurization (FGD, or scrubber) emission control devices at three
units and revised assumptions regarding flue gas treatment in existing
scrubbers at seven units; (4) revise the Arkansas ozone-season new unit
set-aside to account for erroneously omitted projected emissions from
one new unit; (5) revise the Texas new unit set-aside to account for
erroneously omitted projected emissions for SO2, ozone-
season NOX, and annual NOX; (6) revise New
Jersey's ozone season NOX, annual NOX, and
SO2 budgets to account for an erroneously assumed FGD and
SCR emission control devices at one unit, and taking into account
operational constraints likely to necessitate non-economic generation
at six facilities; (7) revise Wisconsin's SO2 and annual
NOX budgets to account for erroneously assumed FGD and SCR
devices at two units; (8) revise New York's SO2, annual
NOX, and ozone season NOX budgets taking into
account operational constraints likely to necessitate non-economic
generation at ten units; (9) revise Louisiana's ozone season
NOX budget taking into account operational constraints
likely to necessitate non-economic generation at twelve units; (10)
revise Mississippi's ozone season NOX budget taking into
account operational constraints likely to necessitate non-economic
generation at four units; (11) revise the Texas annual NOX
and ozone season NOX budgets taking into account operational
constraints likely to necessitate non-economic generation at seven
units; and (12) revise Florida's ozone-season NOX budget
taking into account the unavailability of a previously operating
nuclear unit. See section III.A of this preamble for further
explanation of these revisions.
These proposed revisions to state budgets also entail revisions to
the affected states' assurance levels, as the variability limits for
each state are calculated as a percentage of the applicable budget. See
the final Transport Rule, 76 FR 48208, 48267-68, August 8, 2011
(explaining variability limit derivation). The purpose of these
revisions is to establish state budgets and new unit set-asides that
are consistent with the proper application of methodologies established
in the final Transport Rule.
The resulting budgets maintain significant emission reductions from
historic levels and are consistent with the final Transport Rule's
methodology for defining significant contribution and interference with
maintenance. The changes represent the proper application of the
methodology established in the final Transport Rule. No changes to that
methodology are being proposed, and EPA is not reopening the
methodology established in the final Transport Rule for public comment.
EPA is also not proposing any change to the levels of stringency (i.e.,
cost per ton) selected in the final
[[Page 63863]]
Transport Rule's determination of significant contribution and
interference with maintenance and is not reopening that issue for
public comment. See ``Significant Contribution Assessment TSD'' in the
docket for this rulemaking for a demonstration of how the revisions in
this rulemaking represent the proper application of and are consistent
with the methodology developed in the final Transport Rule.
It is EPA's intent, in conducting this rulemaking, to make the
revisions in this proposal as well as to conduct a clearly defined,
time-limited process by which any similarly justified revisions to the
final Transport Rule state budgets are identified and effectuated in a
timely and expeditious manner. To that end, EPA is seeking that all
relevant information that may support similar revisions be submitted in
full by the comment deadline on this rulemaking, such that the Agency
may consider whether a subsequent and timely rulemaking should address
any further revisions to the final Transport Rule state budgets. EPA
believes that the likelihood of additional substantive revisions
merited to the Transport Rule state budgets is limited, considering
that EPA has already conducted several notice-and-comment processes
through initial proposal of the Transport Rule and multiple notices of
data availability (NODAs) to prompt the public to provide the relevant
input information that informs the calculation of the Transport Rule
state budgets. Please see section III.A of this preamble for a more
detailed description of the type of information EPA is requesting in
comments on this rulemaking for this purpose.
EPA is also proposing revisions to allowance allocations at certain
units in six states that are affected by existing utility consent
decrees. EPA has identified provisions in certain utility consent
decrees which the Agency believes would restrict the use of Transport
Rule allowances allocated to certain units and effectively make certain
Transport Rule reduction requirements marginally more stringent than
intended by making certain allowances intended for compliance purposes
unavailable. When establishing the state budgets under the final
Transport Rule, EPA successfully accounted for the emission reduction
requirements of these consent decrees; therefore, the Transport Rule
state budgets sustain the environmental protection secured by those
existing utility consent decrees. However, when dividing those state
budgets into individual unit-level allowance allocations, EPA included
allowance allocations to certain units that exceed those units'
allowable emissions under the terms of the applicable consent decree.
Under these conditions, the consent decree provisions of concern
identified in this proposal would determine the quantity of allocated
allowances in excess of allowable emissions at the unit in question and
prevent them from being available for compliance use by any source
under the Transport Rule programs. Because EPA has already secured the
environmental improvements required by the consent decrees by
incorporating their emission reductions into the Transport Rule state
budgets, there is no environmental need to prevent the allowances from
being used for compliance by sources subject to the Transport Rule
aside from those sources whose emissions are restricted by the terms of
the consent decrees to which they are subject. Therefore, EPA is
proposing to revise Transport Rule unit-level allowance allocations to
the specific units affected by these consent decrees to reflect their
maximum allowable emissions, such that none of the allowances affected
by the provisions of concern are unnecessarily removed from use for
compliance by other units. While EPA intends to perform this revision
to benefit program implementation, EPA does not believe resolution of
this issue is a necessary precondition for successful implementation of
and compliance with the Transport Rule programs in 2012, because as
described in section IV of this preamble, notwithstanding these
proposed revisions, EPA will still be able to distribute 99.7 percent
of all existing unit allowances under the state budgets established in
the final Transport Rule by that rule's November 7 deadline. See
section III.B of this preamble for further explanation of this
revision.
EPA is also proposing in this action to amend the assurance penalty
provisions of the Transport Rule to make them effective January 1,
2014. This change takes account of the fact that the revisions
described above are being proposed, and any information described above
concerning requested additional revisions may be submitted, close to
the commencement of the Transport Rule programs. The proposed amendment
to the assurance provisions is intended to promote the development of
allowance market liquidity as these revisions are finalized, thereby
smoothing the transition from the Clean Air Interstate Rule (CAIR)
programs to the Transport Rule programs in 2012. See section III.C of
this preamble for further explanation of this revision.
EPA is also proposing to correct typographical errors in certain
sections of rule text in parts 52 and 97 in the final Transport Rule.
See section III.D of this preamble for further explanation of these
corrections.
III. Specific Revisions
A. Budget and New Unit Set-Aside Revisions
After the final Transport Rule was published, EPA identified
discrepancies in certain data assumptions that substantially affected
the calculation of a few states' budgets in the final rule. Therefore,
EPA is proposing the following revisions:
(1) Increase Michigan's 2012 and 2014 annual NOX budgets
in accordance with a revision to the final Transport Rule analysis that
erroneously assumed that an SCR exists at Monroe Unit 2.
EPA is proposing to revise Michigan's 2012 and 2014 annual
NOX budgets in accordance with a revision to the final
Transport Rule analysis that erroneously assumed an SCR exists at
Monroe Unit 2. This SCR is planned, but is not expected to be online in
2012 or 2014. Therefore, EPA is proposing to adjust its 2012 and 2014
projections to reflect projected emissions without an SCR at this unit.
This would result in a 5,228 ton increase in the state's annual
NOX budget. See ``Technical Revisions and Adjustments to
State Budgets TSD'' in the docket for this rulemaking for a
quantitative demonstration of this proposed revision, as well as for
the impacts this revision would have on the state's assurance level,
new unit set-aside, and Indian country new unit set-aside, and
``Revisions to Unit Level Allocations under the FIP'' in the docket for
a quantitative demonstration of the effect of this revision on unit-
level allocations under the FIP.
This revised assumption about Monroe Unit 2 would also affect the
calculation of Michigan's potential ozone-season NOX budget
(as well as the state's assurance level, new unit set-aside, Indian
country new unit set-aside, and unit-level allocations under the FIP)
if that state is included in the Transport Rule ozone-season
NOX program as previously proposed (76 FR 40662, July 11,
2011). EPA will address this issue, along with other public comments
submitted on that rulemaking, when the Agency finalizes that rulemaking
later this year.
(2) Increase Nebraska's 2012 and 2014 annual NOX budgets
in accordance with a revision to the final Transport Rule analysis that
erroneously assumed that an SCR exists at Nebraska City Unit 1.
[[Page 63864]]
EPA is proposing to increase Nebraska's 2012 and 2014 annual
NOX budgets in accordance with a revision to the final
Transport Rule analysis that erroneously assumed that an SCR exists at
Nebraska City Unit 1. There is no SCR that is present, planned, or
under construction at the unit. Therefore, EPA is proposing to adjust
its baseline emission projections for the state to reflect projected
emissions without an SCR at this unit. This adjustment results in an
increase of 3,599 tons to the state's annual NOX budget. See
``Technical Revisions and Adjustments to State Budgets TSD'' in the
docket for this rulemaking for a quantitative demonstration of this
proposed revision, as well as for the impacts this revision would have
on the state's assurance level, new unit set-aside, and Indian country
new unit set-aside, and ``Revisions to Unit Level Allocations under the
FIP'' in the docket to this rulemaking for a quantitative demonstration
of the effect of this proposed revision on unit-level allocations under
the FIP.
(3) Increase the Texas 2012 and 2014 SO2 budgets in
accordance with a revision to the final Transport Rule analysis that
erroneously assumed that scrubbers exist at W.A. Parish Unit 6, J.T.
Deely Unit 1, and J.T. Deely Unit 2, and that assumed full flue gas
treatment in existing scrubbers at Martin Lake, Monticello, Sandow,
W.A. Parish, and Oklaunion facilities.
EPA is proposing to address several revisions to the modeling
assumptions affecting the calculation of the Texas SO2
budget. In particular, EPA is proposing to increase the Texas
SO2 budget in accordance with a revision to the final
Transport Rule analysis that erroneously assumed flue-gas
desulfurization (FGD) technology is installed on J.T. Deely Units 1 and
2 and W.A. Parish Unit 6 by 2012. At the time that EPA conducted its
final Transport Rule analysis to determine state budgets, EPA had
information (both from public sources, as cited below, as well as from
a private subscription-only power sector pollution control database)
showing that FGD retrofits for these sources were originally planned or
announced to be installed by 2012.1 2 However, newer
information shows that these FGDs are no longer scheduled to be
installed in 2012.
---------------------------------------------------------------------------
\1\ Corporate Sustainability Report'', CPS Energy, 2010. P.57.
Retrieved from https://www.cpsenergy.com/files/Sustainability_Report.pdf.
\2\ Business Wire, (2006). NRG Announces Comprehensive
Repowering Initiative [Press release]. Retrieved from https://phx.corporate-ir.net/phoenix.zhtml?c=121544&p=irol-newsArticle_Print&ID=874575&highlight.
---------------------------------------------------------------------------
A number of facilities in Texas currently face limitations
regarding the amount of flue gas that can be treated in their existing
FGDs. In the final Transport Rule analysis, EPA relied on the
SO2 removal efficiency that these facilities reported at
their scrubbers to the Energy Information Administration (EIA).
However, EPA has now determined that the facilities' reports only
intended to address the removal efficiency for the portion of the flue
gas treated in the scrubber. For this reason, that removal efficiency
should not be applied to the total amount of sulfur combusted in the
coal consumed (as some of the flue gas at these units must be vented
without being treated in the scrubber as originally constructed). When
the SO2 removal rates are decreased to reflect the reported
operational constraint of each affected scrubber's flue gas treatment,
the projected emission level for Texas, after all significant
contribution identified in the final Transport Rule is addressed,
correspondingly rises.
Therefore, in accordance with the revised unit-level input
assumptions regarding existing scrubbers and flue gas treatment at the
Texas units described above, EPA is proposing to increase the state's
2012 and 2014 SO2 budgets each by 70,067 tons. See
``Technical Revisions and Adjustments to State Budgets TSD'' in the
docket for this rulemaking for a quantitative demonstration of how each
of these unit-level adjustments affects the calculation of this
proposed revision, as well as for the impacts this revision would have
on the state's assurance levels, new unit set-aside, and Indian country
new unit set-aside.
(4) Increase Arkansas' ozone-season NOX new unit set-
aside in accordance with a revision to the final Transport Rule's
calculation of the new unit set-aside that erroneously omitted Plum
Point Unit 1's projected emissions.
EPA is not proposing to adjust Arkansas' ozone season
NOX budget in this rulemaking. However, EPA is proposing to
adjust the portion of that budget dedicated to the new unit set-aside
account. In the final Transport Rule, EPA had determined a 2 percent
new unit set-aside for ozone season NOX in the state. That
value would be changed to 5 percent in this rulemaking. The revision is
consistent with the new unit set-aside methodology described in the
final rule. The updated value simply reflects the revised
classification of one unit to be treated as a new unit for purposes of
unit-level allowance allocation. This unit, Plum Point Unit 1,
commenced commercial operation on or after January 1, 2010, and
therefore should be considered a new unit under the final Transport
Rule's unit-level allocation methodology (76 FR 48290); however, the
final Transport Rule erroneously omitted this unit's projected
emissions from the calculation of Arkansas' ozone-season NOX
new unit set-aside. Including this unit's projected emissions in the
calculation would yield a revised new unit set-aside of 5 percent of
the state's budget instead of the previous 2 percent value. See the
``Technical Revisions and Adjustments to State Budgets TSD'' in the
docket for this rulemaking for a quantitative demonstration of this
proposed revision.
This proposed revision to Arkansas' new unit set-aside would
necessarily result in changes to allowance allocations to existing
units. See ``Revisions to Unit Level Allocations under the FIP'' tables
in the docket to this rulemaking for a quantitative demonstration of
the effect of this revision on unit-level allocations under the FIP.
(5) Increase Texas' ozone-season NOX, annual
NOX, and SO2 new unit set-asides in accordance
with a revision to the final Transport Rule's calculations of the new
unit set-asides that erroneously omitted Oak Grove Unit 2's projected
emissions.
EPA is also proposing a revision to the calculation of the new unit
set-asides for ozone-season NOX, annual NOX, and
SO2 in Texas. The updated values would simply reflect the
revised classification of one unit to be treated as a new unit for
purposes of unit-level allowance allocation. This unit, Oak Grove Unit
2, commenced commercial operation on or after January 1, 2010, and
therefore should be considered a new unit under the final Transport
Rule's unit-level allocation methodology; however, the final Transport
Rule erroneously omitted this unit's projected emissions from the
calculation of Texas's ozone-season NOX, annual
NOX, and SO2 new unit set-asides. Including this
unit's projected emissions in the calculation would yield revised new
unit set-asides of 4 percent of the state's ozone-season NOX
budget, 4 percent of the state's annual NOX budget, and 5
percent of the state's SO2 budget. See the ``Technical
Revisions and Adjustments to State Budgets TSD'' in the docket for this
rulemaking for a quantitative demonstration of this proposed revision.
(6) Increase New Jersey's 2012 and 2014 ozone-season
NOX, annual NOX, and SO2 budgets in
accordance with revisions to the final Transport Rule analysis that
erroneously assumed that
[[Page 63865]]
an SCR and scrubber exist at BL England Unit 1 and to reflect
operational constraints likely to necessitate non-economic dispatch at
six other facilities in 2012.
EPA is proposing to revise New Jersey's ozone-season
NOX, annual NOX, and SO2 budgets in
accordance with revisions to assumed control technologies at BL England
Unit 1 as well as operational constraints affecting units at six other
facilities. The SCR and scrubber that had been planned to be installed
at BL England Unit 1, and which EPA assumed would be in place in 2012,
are not actually required by a New Jersey administrative order until
December 2013. Furthermore, the agreement limits operation of the unit
to the ozone season. Therefore, EPA is proposing to adjust New Jersey's
2012 state budgets to reflect projected emissions without an SCR or
scrubber at this unit and its operation only during the ozone season.
EPA is also proposing revisions to New Jersey's state budgets based
on information demonstrating that northern New Jersey is an out-of-
merit-order dispatch area, meaning that units in that area are
frequently dispatched out of regional economic order as a result of
short-run limitations on the ability to meet local electricity demand
with generation from outside the area. Conditions in this out-of-merit-
order dispatch area are likely to necessitate what would otherwise be
non-economic generation at six New Jersey plants (Bergen, Edison,
Essex, Kearny, Linden, and Sewaren Generating Stations) in the
immediate future. EPA did not consider these immediate-term conditions
in its calculation of the New Jersey emission budgets in the final
Transport Rule. EPA is proposing to adjust New Jersey's emission
budgets based on analysis of the frequency these units have recently
been called to run for non-economic purposes, according to data
provided by the utility operating those units.
For this proposal, EPA has calculated the net change in the state's
2012 and 2014 total emissions (that inform the state budgets) to
account for increased generation (and related emissions) from the
specific units affected by the immediate-term non-economic constraints
described above, as well as for a corresponding reduction in generation
(and related emissions) at other units within the state, to maintain
the electricity supply and demand equilibrium modeled in the final
Transport Rule.
EPA re-calculated the emissions from BL England Unit 1 and the six
plants with non-economic generation to account for the input assumption
changes described above. These calculations yield increases to the New
Jersey 2012 state budgets for SO2 of 2,096 tons, annual
NOX of 420 tons, and ozone-season NOX of 592
tons; and 2014 state budget increases for annual NOX of 112
tons, and ozone-season NOX of 195 tons. See ``Technical
Revisions and Adjustments to State Budgets TSD'' in the docket for this
rulemaking for a quantitative demonstration of this proposed revision,
as well as for the impacts this revision would have on the state's
assurance level and new unit set-aside, and ``Revisions to Unit Level
Allocations under the FIP'' in the docket for a quantitative
demonstration of the effect of this revision on unit-level allocations
under the FIP.
(7) Increase Wisconsin's 2014 SO2 budget and 2012 and
2014 annual NOX budget in accordance with a revision to the
final Transport Rule analysis that erroneously assumed that an FGD
exists at Weston Unit 3, wet FGDs (instead of dry FGDs) exist at
Columbia Units 1 and 2, and a SCR exists at John P. Madgett Unit 1.
EPA is proposing to increase Wisconsin's SO2 budget in
accordance with revisions to the Weston Unit 3 and Columbia Units 1 and
2 FGD status in 2014. EPA had assumed that a scrubber would be
available at Weston Unit 3 in 2014 in its base case modeling. There is
no FGD expected to be online at the facility in 2014. The final
Transport Rule did not assume an operating scrubber at Weston Unit 3 in
2012, but did assume the FGD would be in place and operating by 2014.
Therefore, EPA is proposing to adjust Wisconsin's 2014 SO2
budget to reflect the unit's operation without an FGD in 2014.
EPA had also assumed that the two scrubbers being installed at
Columbia Units 1 and 2 were wet scrubbers. Instead, dry scrubbers have
been planned and approved at these units. In EPA's modeling, the
assumed removal rate of a new wet scrubber is 96 percent and a new dry
scrubber is 92 percent. Therefore, the 2014 modeled remedy emissions
from these units would be twice their current amount, if the assumption
of wet scrubbers was changed to dry scrubbers for the facility. No
change is needed for 2012 since EPA did not model any scrubbers
operating at those units in that year.
To account for these adjustments, EPA is proposing to increase the
Wisconsin SO2 budget by a total of 7,757 tons in 2014.
EPA is also proposing to increase Wisconsin's annual NOX
budget in 2012 and 2014. EPA had assumed a SCR would be installed at
John P. Madgett Unit 1 in 2012 in its budget determination and remedy
modeling. There is no SCR expected to be online in 2012 or 2014 at the
unit. Therefore, EPA is proposing to adjust Wisconsin's annual
NOX budgets to reflect the unit's operation without a SCR.
This would result in a 2,473 ton increase to the state's annual
NOX budget.
The revised assumptions about John P. Madgett Unit 1 would also
affect the calculation of Wisconsin's potential ozone-season
NOX budget (as well as the state's assurance level, new unit
set-aside, Indian country new unit set-aside, and unit-level
allocations under the FIP) if that state is included in the Transport
Rule ozone-season NOX program as previously proposed (76 FR
40662, July 11, 2011). EPA will address this issue, along with other
public comments submitted on that rulemaking, when the Agency finalizes
that rulemaking later this year.
See the ``Technical Revisions and Adjustments to State Budgets
TSD'' in the docket for this rulemaking for a quantitative
demonstration of this proposed revision, as well as for the impacts
this revision would have on the state's assurance level, new unit set-
aside, and Indian country new unit set-aside, and ``Revisions to Unit
Level Allocations under the FIP'' in the docket for a quantitative
demonstration of the effect of this revision on unit-level allocations
under the FIP.
(8) Increase New York's 2012 and 2014 ozone-season NOX,
annual NOX, and SO2 budgets in accordance with a
revision to the final Transport Rule analysis that did not reflect
operational constraints likely to necessitate non-economic dispatch at
certain units.
EPA is proposing to increase the New York state ozone-season
NOX, annual NOX, and SO2 budgets in
accordance with revisions to the assumed operation of several specific
units in 2012, to satisfy three specific immediate-term operational
constraints documented by the New York Independent System Operator
(NYISO). These three constraints are referred to here as the N-1-1
Contingency, the Minimum Oil Burn Rules, and out-of-merit-order
dispatch conditions, which collectively affect the likely 2012 and 2014
operations of specific units in the New York City and Long Island
areas.
The N-1-1 Contingency requires that certain units be available to
deliver generation with advance notice of only 30 seconds at certain
times during the year. These specific units require several hours to
reach the necessary level of generation under these contingency
circumstances; therefore, the contingency requirement frequently
necessitates their ongoing operation
[[Page 63866]]
whether or not the contingency is actually triggered at any given time.
Based on information published by NYISO, EPA identified Arthur Kill
Generating Station, Ravenswood, and Astoria Generating Station as
needing to maintain minimum generation levels at two units in each
facility to meet the N-1-1 Contingency constraint.
The Minimum Oil Burn Rules require that certain units be able to
immediately burn oil in the event of a natural gas supply disruption to
the New York City and Long Island area infrastructure. Some units are
incapable of immediately switching fuel, so they must burn a minimum
amount of oil on an ongoing basis when operating to comply with this
requirement. EPA determined that the Minimum Oil Burn Rules would
require residual fuel oil consumption at the Arthur Kill Generating
Station, Ravenswood, Astoria Generating Station, and Northport
facilities. Based on information published by the NYISO, EPA determined
that these units would burn oil in 2012 and 2014 at the same proportion
of total projected heat input as shown for the share of historic heat
input reported as residual fuel oil at those facilities.
Data presented in the NYISO 2010 Comprehensive Area Transmission
Review Study and the NYISO Operating Study, Summer 2011, demonstrate
that Long Island is an out-of-merit-order dispatch area, meaning that
units in that area are frequently dispatched out of regional economic
order as a result of short-run limitations on the ability to meet local
electricity demand with generation from outside the area. Conditions in
this out-of-merit-order dispatch area are likely to necessitate in the
immediate future what would otherwise be non-economic generation at 3
units at the Northport facility.
For this proposal, EPA has calculated the net change in the state's
total emissions (that inform the state budgets) to account for
increased generation (and related emissions) from the specific units
affected by the immediate-term non-economic constraints described
above, as well as for a corresponding reduction in generation (and
related emissions) at other units within the state, to maintain the
electricity supply and demand equilibrium modeled in the final
Transport Rule. These calculations yield increases to the New York 2012
and 2014 state budgets for SO2 of 3,527 tons, annual
NOX of 3,485 tons, and ozone-season NOX of 1,911
tons. See ``Technical Revisions and Adjustments to State Budgets TSD''
in the docket for this rulemaking for a quantitative demonstration of
this proposed revision, as well as for the impacts this revision would
have on the state's assurance levels, new unit set-aside, and Indian
country new unit set-aside.
(9) Increase Louisiana's 2012 and 2014 ozone-season NOX
budgets in accordance with a revision to the final Transport Rule
analysis to reflect operational constraints likely to necessitate non-
economic dispatch at twelve units.
EPA is proposing revisions to Louisiana's 2012 and 2014 state ozone
season NOX budgets based on information demonstrating that
the West of the Atchafalaya Basin (WOTAB), Downstream of Gypsy (DSG),
and Amite South regions of Louisiana are out-of-merit-order dispatch
areas, meaning that units in those areas are frequently dispatched out
of regional economic order as a result of short-run limitations on the
ability to meet local electricity demand with generation from outside
the area. Conditions in these out-of-merit-order dispatch areas are
likely to necessitate what would otherwise be non-economic generation
at five Louisiana plants (R.S. Nelson, Nine Mile Point, Michoud, Little
Gypsy, and Waterford) in the immediate future. EPA did not consider
these immediate-term conditions in its calculation of the Louisiana
emission budget in the final Transport Rule. EPA is proposing to adjust
Louisiana's ozone season NOX emission budget based on
analysis projecting the minimum frequency these units will have to run
in the immediate term for non-economic purposes, according to data
provided by the utility operating those units.
For this proposal, EPA has calculated the net change in the state's
total emissions (that inform the state budgets) to account for
increased generation (and related emissions) from the specific units
affected by the immediate-term non-economic constraints described
above, as well as for a corresponding reduction in generation (and
related emissions) at other units within the state, to maintain the
electricity supply and demand equilibrium modeled in the final
Transport Rule.
EPA re-calculated the emissions from the five plants with non-
economic generation to account for the input assumption changes
described above. These calculations yield increases to Louisiana's 2012
and 2014 state budgets for ozone-season NOX of 4,231 tons.
See ``Technical Revisions and Adjustments to State Budgets TSD'' in the
docket for this rulemaking for a quantitative demonstration of this
proposed revision, as well as for the impacts this revision would have
on the state's assurance level, new unit set-aside, and Indian country
new unit set-aside, and ``Revisions to Unit Level Allocations under the
FIP'' in the docket for a quantitative demonstration of the effect of
this revision on unit-level allocations under the FIP.
(10) Increase Mississippi's 2012 and 2014 ozone-season
NOX budgets in accordance with a revision to the final
Transport Rule analysis to reflect operational constraints likely to
necessitate non-economic dispatch at certain units.
EPA is proposing revisions to Mississippi's state ozone season
NOX budget based on information demonstrating that the
Mississippi Region is an out-of-merit-order dispatch area, meaning that
units in that area are frequently dispatched out of regional economic
order as a result of short-run limitations on the ability to meet local
electricity demand with generation from outside the area. Conditions in
this out-of-merit-order dispatch area are likely to necessitate what
would otherwise be non-economic generation at three Mississippi plants
(Rex Brown, Gerald Andrus, and Baxter Wilson) in the immediate future.
EPA did not consider these immediate-term conditions in its calculation
of the Mississippi emission budget in the final Transport Rule. EPA is
proposing to adjust Mississippi's 2012 and 2014 ozone season
NOX emission budgets based on analysis projecting the
minimum frequency these units will have to run in the immediate-term
for non-economic purposes, according to data provided by the utility
operating those units.
For this proposal, EPA has calculated the net change in the state's
total emissions (that inform the state budgets) to account for
increased generation (and related emissions) from the specific units
affected by the immediate-term non-economic constraints described
above, as well as for a corresponding reduction in generation (and
related emissions) at other units within the state, to maintain the
electricity supply and demand equilibrium modeled in the final
Transport Rule.
EPA re-calculated the emissions from the three plants with non-
economic generation to account for the input assumption changes
described above. These calculations yield increases to Mississippi's
2012 and 2014 state budgets for ozone-season NOX of 2,136
tons. See ``Technical Revisions and Adjustments to State Budgets TSD''
in the docket for this rulemaking for a quantitative demonstration of
this proposed revision, as well as for the impacts this revision would
have on the state's assurance level, new unit set-aside, and Indian
country new unit set-
[[Page 63867]]
aside, and ``Revisions to Unit Level Allocations under the FIP'' in the
docket for a quantitative demonstration of the effect of this revision
on unit-level allocations under the FIP.
(11) Increase Texas's 2012 and 2014 annual and ozone-season
NOX budgets in accordance with a revision to the final
Transport Rule analysis to reflect operational constraints likely to
necessitate non-economic dispatch at certain units.
EPA is proposing revisions to Texas's 2012 and 2014 state annual
and ozone season NOX budgets based on information
demonstrating that the West of the Atchafalaya Basin (WOTAB) and
Western Regions are out-of-merit-order dispatch areas, meaning that
units in those areas are frequently dispatched out of regional economic
order as a result of short-run limitations on the ability to meet local
electricity demand with generation from outside the area. Conditions in
these out-of-merit-order dispatch areas are likely to necessitate what
would otherwise be non-economic generation at two Texas plants (Lewis
Creek and Sabine) in the immediate future. EPA did not consider these
immediate-term conditions in its calculation of the Texas emission
budgets in the final Transport Rule. EPA is proposing to adjust Texas's
emission budgets based on analysis projecting the minimum frequency
these units will have to run in the immediate-term for non-economic
purposes, according to data provided by the utility operating those
units.
For this proposal, EPA has calculated the net change in the state's
total emissions (that inform the state budgets) to account for
increased generation (and related emissions) from the specific units
affected by the immediate-term non-economic constraints described
above, as well as for a corresponding reduction in generation (and
related emissions) at other units within the state, to maintain the
electricity supply and demand equilibrium modeled in the final
Transport Rule.
EPA re-calculated the emissions from the two plants with non-
economic generation to account for the input assumption changes
described above. These calculations yield increases to Texas's 2012 and
2014 state budgets for annual NOX of 1,375 tons and ozone-
season NOX of 1,375 tons. See ``Technical Revisions and
Adjustments to State Budgets TSD'' in the docket for this rulemaking
for a quantitative demonstration of this proposed revision, as well as
for the impacts this revision would have on the state's assurance
level, new unit set-aside, and Indian country new unit set-aside, and
``Revisions to Unit Level Allocations under the FIP'' in the docket for
a quantitative demonstration of the effect of this revision on unit-
level allocations under the FIP.
(12) Increase Florida's 2012 ozone-season NOX budget in
accordance with a revision to the final Transport Rule analysis to
reflect the unavailability of Crystal River Unit 3, a nuclear unit.
EPA's power sector analysis in the final Transport Rule that
informed its calculation of Florida's state ozone-season budget
included generation from Crystal River Unit 3, a nuclear unit that has
operated historically. However, utilities in Florida have notified EPA
that this unit will be offline for repairs throughout 2012 and is
expected to return to service in 2013. As such, EPA expects that the
generation previously projected in the Transport Rule analysis from
this unit in 2012 will necessarily have a different origin with
different emission consequences that should be considered in the
calculation of Florida's ozone-season NOX state budget. EPA
has calculated that this replacement generation would yield an increase
of 819 tons of ozone-season NOX in 2012 and is proposing to
increase Florida's 2012 ozone-season NOX budget by 819 tons,
accordingly. See ``Technical Revisions and Adjustments to State Budgets
TSD'' in the docket for this rulemaking for a quantitative
demonstration of this proposed revision, as well as for the impacts
this revision would have on the state's assurance level, new unit set-
aside, and Indian country new unit set-aside, and ``Revisions to Unit
Level Allocations under the FIP'' in the docket for a quantitative
demonstration of the effect of this revision on unit-level allocations
under the FIP.
EPA has also received and is making available in the public docket
for this proposal additional unit-level information provided by Florida
utilities addressing assumptions of each unit's ability to control
ozone-season NOX. EPA requests comment on all aspects of the
data in the docket, including whether the emission data provided in
this information is a more accurate representation of achievable
NOX emission rates in 2012, and whether using this data
would be consistent with the methodology used in the Transport Rule.
EPA specifically requests comment on whether this information could
support a further revision to the state's ozone-season NOX
budget, and if so, how such a revision should be calculated. See
``Information Submitted by Florida Utilities'' in the docket for this
rulemaking.
Further Explanation on Revisions and Request for Comments. All of
the proposed revisions to state budgets and new unit set-asides
described above would correspondingly affect unit-level allowance
allocations in the states involved. Specifically, any changes to the
levels of new unit set-asides or state budgets would be carried through
to unit-level allocations based on the final Transport Rule allocation
methodology for existing units (including any amendments made to
specific unit-level allocations in this rulemaking, described below).
For example, if a state budget would increase, then the share of that
increase going to existing units would be apportioned based on the
final Transport Rule's allocation methodology to existing units (aside
from specific unit-level allocation adjustments included in this
proposal pertinent to utility consent decrees, discussed below in
section III.B of this preamble). Unit-level allocations to potential
covered sources under the Transport Rule have been updated to reflect
all of the proposed revisions described in this proposal and are set
forth in the ``Revisions to Unit Level Allocations under the FIP'' TSD
in the docket for this rulemaking.
EPA evaluated the likely air quality impacts of the revisions
presented above using the air quality assessment tool, on a state-by-
state and case-by-case basis, for the SO2 budget increases
in 2014 for Texas, New York, and Wisconsin, and compared those
estimates to the final Transport Rule air quality analysis. The results
do not change the conclusions that EPA made about the appropriateness
of controlling upwind emissions at the cost-effective thresholds
selected in the final Transport Rule to successfully quantify and
eliminate significant contribution to nonattainment and interference
with maintenance at downwind receptors. For more information, this
evaluation can be found in the ``Significant Contribution Assessment
Technical Support Document'' in the docket for this rulemaking.
For this proposal, EPA also assessed this proposal's revisions to
annual NOX and ozone-season NOX state budgets
against each state's total NOX emission inventories which
informed the air quality projections in the final Transport Rule
analysis. The annual NOX budget increases for Michigan,
Nebraska, New Jersey, New York, Texas, and Wisconsin are 5,228, 3,599,
112, 3,485, 1,375 and 2,473 tons, respectively. Comparing those budget
increases to the total 2014 annual NOX emission inventories
in those states under the final Transport Rule's control
[[Page 63868]]
scenario analysis, EPA calculates that these revisions represent
increases of 1.2 percent, 2.1 percent, 0.1 percent, 0.8 percent, 0.1
percent, and 1.0 percent, respectively, of the total annual
NOX emission inventories for those states in the final
Transport Rule's 2014 control scenario analysis. See the ``Significant
Contribution Assessment TSD'' in the docket for this rulemaking for
more details. These increases represent only a small portion of each
state's total NOX emissions.
The ozone-season NOX budget increases in 2014 for
Louisiana, Mississippi, New Jersey, New York, and Texas are 4,231,
2,136, 195, 1,911, and 1,375 tons, respectively. Comparing those budget
increases to the total 2014 ozone-season NOX emission
inventories in those states under the final Transport Rule's control
scenario analysis, EPA calculates that these revisions represent
increases of 2.2 percent, 2.4 percent, 0.2 percent, 1.0 percent, and
0.2 percent, respectively, of the total ozone-season NOX
emission inventories for those states in the final Transport Rule's
2014 control scenario analysis. See the ``Significant Contribution
Assessment TSD'' in the docket for this rulemaking for more details.
These increases represent only a small portion of each state's total
ozone-season NOX emissions.
EPA requests comment on the revised unit-level and utility-system
operational information described above and on the corresponding
proposed revisions in state budgets, variability limits, new unit set-
asides, Indian country new unit set-asides, and unit-level allocations
resulting from the application of such revised information using the
methodologies set forth in the final Transport Rule for developing
state budgets, variability limits, new unit set-asides, Indian country
new unit set-asides, and unit-level allocations. EPA is not requesting
comment on those methodologies set forth in the final Transport Rule.
For example, EPA is not seeking comment on the methodology by which
existing unit allocations are determined with regard to any given
Transport Rule state budget.\3\
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\3\ Further, EPA notes that the proposed rule text includes
tables that are complete in that they show, for each Transport Rule
trading program, both (i) The amounts for certain state budgets, new
unit set-asides, Indian country set-asides, and state variability
limits that reflect proposed revisions discussed in this notice; and
(ii) the amounts for other state budgets, new unit set-asides,
Indian country set-asides, and state variability limits amounts that
do not reflect any proposed revisions discussed in this notice.
Except as discussed below in this section of the notice, EPA is not
requesting comment on those budgets, new unit set-asides, Indian
country set-asides, and variability limits that are shown in the
proposed rule text tables but that do not reflect the proposed
revisions discussed in this notice. For example, the budget and new
unit set-aside revisions discussed in this section of the notice
involve only a limited number of states (i.e., Arkansas, Florida,
Louisiana, Michigan, Mississippi, Nebraska, New Jersey, New York,
Texas, and Wisconsin). Except as discussed below in this section of
the notice, EPA is not reopening, or requesting comment on, amounts
in the proposed rule text tables for any other states. By further
example, this section of the notice discusses a revision of
Arkansas' new unit set-aside, but not of Arkansas' budget. Except as
discussed below in this section of the notice, EPA is not requesting
comment on the amount of Arkansas' budget.
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Moreover, EPA recognizes that parties may be aware of other
immediate-term unit-specific operational constraints not accounted for
in the final Transport Rule whose inclusion may warrant revisions in
state budgets, with associated revisions to the state assurance levels
and unit-level allocations for existing units. EPA has already provided
several opportunities--through the proposed Transport Rule and
subsequent notices of data availability--for the public, including
stakeholders, to present unit-level information demonstrating
constraints on immediate-term operations. However, EPA will accept--by
the deadline for comment on this proposal--submission of additional
unit-level operational information that would have a material impact on
the calculation of Transport Rule state budgets (with associated
impacts on corresponding assurance levels and unit-level allocations
for existing units). For this purpose, EPA intends a ``material
impact'' to reflect a corresponding recalculation of the relevant state
budget that would be at least 1 percent different from that budget's
value as calculated in the final Transport Rule (76 FR 48208, August 8,
2011). EPA remains focused on successful implementation of the
Transport Rule programs and does not believe that a change of less than
1 percent in a state's budget would be a meaningful action to further
this goal. As a result, EPA encourages commenters to consider whether
or not revisions to a given unit's or group of units' input assumptions
would yield a material impact of at least a 1 percent difference in the
calculation of the relevant state budget before submitting this
information to EPA for review.
EPA is therefore accepting for review information provided in
comments on this rulemaking specifically addressing the following
topics for specific electric generating units:
(1) Post-combustion pollution control equipment (such as SCRs and
FGDs) assumed in the final Transport Rule analyses to be present by
2012 at the unit in question; and/or
(2) Immediate-term (i.e., binding on 2012) operational requirements
necessitating non-economic generation at the unit in question,
including data that demonstrate why the unit in question is required to
generate in the immediate term for reasons other than the regional
economic sale of electricity, and how often during the ozone season and
during the calendar year that such non-economic generation is
necessitated from that unit.
EPA will review information provided in comments addressing the
topics described above and will determine if any of the information
merits a subsequent proposal of revisions to the Transport Rule
programs beyond the actions presented in this proposal.
B. Allowance Allocation Revisions to Units Covered by Existing Utility
Consent Decrees
After the final Transport Rule was published, EPA determined that
while the state budgets accurately incorporated the emission reduction
requirements of existing utility consent decrees, the unit-level
allowance allocations under the Transport Rule FIPs did not properly
account for provisions in those consent decrees that effectively
require the surrender, or restrict the trading, of ``excess'' Transport
Rule allowances. As a result, Transport Rule allowance allocations to
certain units may unintentionally reduce the availability of some of
those allowances to other sources, given the restrictions on the use of
those allowances by the initial recipient unit imposed by the
applicable consent decree.
In today's action, EPA is proposing to add a constraint on
Transport Rule unit-level allowance allocations designed to reflect the
maximum allowable emissions at the units affected by existing utility
consent decrees which contain annual tonnage limits and require the
surrender or restrict trading of Transport Rule allowances allocated in
excess of annual tonnage limits. See ``Assessment of Impact of Consent
Decree Annual Tonnage Limits on Transport Rule Allocations TSD'' in the
docket for this rulemaking for information on the consent decrees
covered by the proposed addition of the new constraint for purposes of
determining unit-level allocations.
The addition of this constraint would align unit level allocations
for units described in several existing Federally-enforceable consent
decrees with the annual tonnage limits in those decrees. This
constraint would prevent heat
[[Page 63869]]
input-based allocations from exceeding the terms of Federally-
enforceable consent decrees that contain annual tonnage limits for
SO2 and/or NOX. Because existing consent decrees
that establish annual tonnage limits for SO2 and/or
NOX do so at the system or facility level, EPA calculated
unit-level annual tonnage limit equivalents (unit-level caps) for
purposes of allocating allowances to individual units. EPA is not
seeking comment on any elements of the allocation methodology finalized
in the final Transport Rule (76 FR 48288-90). Rather, EPA is seeking
comment only on the addition of a unit-level consent decree constraint
and unit-level cap apportionment methodology.
The proposed additional const
