Approval and Promulgation of Air Quality Implementation Plans; Ohio; Ohio NOX, 68367-68370 [2013-27142]
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Federal Register / Vol. 78, No. 220 / Thursday, November 14, 2013 / Rules and Regulations
costs on tribal governments or preempt
tribal law.
A. General Requirements
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V. Statutory and Executive Order
Reviews
B. Submission to Congress and the
Comptroller General
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
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C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by January 13, 2014. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. Parties with
objections to this direct final rule are
encouraged to file a comment in
response to the parallel notice of
proposed rulemaking for this action
published in the proposed rules section
of today’s Federal Register, rather than
file an immediate petition for judicial
review of this direct final rule, so that
EPA can withdraw this direct final rule
and address the comment in the
proposed rulemaking action. This
rulemaking action to remove Virginia’s
NLEV program from the Virginia SIP
may not be challenged later in
proceedings to enforce its requirements.
(See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, and Volatile organic
compounds.
Dated: September 30, 2013.
W.C. Early,
Acting, Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
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68367
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart VV—Virginia
2. In § 52.2420, the table in paragraph
(c) is amended by removing the entries
for 9 VAC 5 Chapter 200 ‘‘National Low
Emission Vehicle Program’’ in its
entirety.
■
[FR Doc. 2013–27029 Filed 11–13–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2010–0997; FRL–9901–
38–Region 5]
Approval and Promulgation of Air
Quality Implementation Plans; Ohio;
Ohio NOX SIP Call Rule Revisions
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
On November 15, 2010, Ohio
EPA submitted to EPA revisions to Ohio
OAC 3745–14. EPA is approving these
revisions under the Clean Air Act,
which allows for Ohio’s Clean Air
Interstate Rule (CAIR) NOX Ozone
Season Trading Program rules to
supersede Ohio’s nitrogen oxides (NOX)
State Implementation Plan (SIP) Call
Budget Trading Program rules, but leave
other requirements of the NOX SIP Call
in place for units not covered by CAIR.
DATES: This rule is effective January 13,
2014, unless EPA receives adverse
comments by December 16, 2013. If
adverse comments are received, EPA
will publish a timely withdrawal of the
direct final rule in the Federal Register
informing the public that the rule will
not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2010–0997, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: aburano.douglas@epa.gov.
3. Fax: (312) 408–2279.
4. Mail: Douglas Aburano, Chief,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
U.S. Environmental Protection Agency,
77 West Jackson Boulevard, Chicago,
Illinois 60604.
SUMMARY:
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68368
Federal Register / Vol. 78, No. 220 / Thursday, November 14, 2013 / Rules and Regulations
5. Hand Delivery: Douglas Aburano,
Chief, Attainment Planning and
Maintenance Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted
during the Regional Office normal hours
of operation, and special arrangements
should be made for deliveries of boxed
information. The Regional Office official
hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R05–OAR–2010–
0997. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
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 www.regulations.gov
or email. The 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 email
comment directly to EPA without going
through www.regulations.gov your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the docket
are listed in the 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
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
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Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We
recommend that you telephone Sarah
Arra, Environmental Scientist, at (312)
886–9401 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT:
Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–9401,
Arra.Sarah@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
I. Background
II. Analysis of Ohio’s SIP Revisions
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. Background
On October 27, 1998 (63 FR 57356),
EPA published the ‘‘Finding of
Significant Contribution and
Rulemaking for Certain States in the
Ozone Transport Assessment Group
Region for Purposes of Reducing
Regional Transport of Ozone,’’
commonly referred to as the NOX SIP
Call. Under the NOX SIP Call, 22 states
and the District of Columbia, including
Ohio, were required to submit plans
reducing NOX emissions to reduce
ozone transport throughout the eastern
half of the United States. The
obligations of the rule could be met
through a cap and trade program for
NOX emissions (referred to as the NOX
Budget Trading Program) for large
electric generating units (EGUs) and
other large boilers and turbines (nonEGUs), along with controls on cement
kilns and large internal combustion
engines. Under the NOX SIP Call, states
have flexibility in determining where
NOX emission reductions are achieved
and can choose other ways to comply.
For the most part, states found that
EGUs and other large industrial boilers,
cement kilns, and internal combustion
engines were the most cost-effective
sources for NOX emissions reductions.
On May 12, 2005 (70 CFR 25162),
EPA published the ‘‘Rule to Reduce
Interstate Transport of Fine Particulate
Matter and Ozone,’’ commonly known
as the Clean Air Interstate Rule (CAIR).
This rule required 28 states and the
District of Columbia to submit plans
reducing NOX and sulfur dioxide (SO2)
emissions to reduce the interstate
transport of ozone and fine particulates.
Each state generally has separate
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budgets for ozone season NOX, annual
NOX, and annual SO2 emissions. For
each covered pollutant, the state must
achieve the required emission
reductions either by requiring EGUs
(and large non-EGUs in the case of
ozone season NOX) to participate in an
EPA-administered interstate cap and
trade system that caps emissions in two
stages, or by meeting an individual state
emissions budget through measures of
the state’s choosing. CAIR includes a
NOX Ozone Season Trading Program
that supersedes the NOx Budget Trading
Program. States subject to both the NOX
SIP Call and CAIR’s ozone season NOX
requirements (including Ohio) could
choose to participate in the CAIR NOX
Ozone Season Trading Program and in
so doing satisfy the requirements of the
NOX SIP Call with regard to EGUs and
large non-EGUs. In 2008, the D.C.
Circuit Court of Appeals remanded
CAIR to EPA but left the rule in place
pending its replacement. North Carolina
v. EPA, 531 F.3d 896 (D.C. Cir.),
modified, 550 F.3d 1176 (D.C. Cir.
2008).
In response to the remand of CAIR, on
August 8, 2011 (76 FR 48208), EPA
published the ‘‘Federal Implementation
Plans: Interstate Transport of Fine
Particulate Matter and Ozone and
Correction of SIP Approvals,’’
commonly known as the Cross-State Air
Pollution Rule (CSAPR). CSAPR
addresses interstate transport of ozone
and fine particulates by setting state
budgets for 28 states, including Ohio,
for ozone season NOX, annual NOX, and
annual SO2 emissions. CSAPR also
establishes emissions trading programs
that would replace the CAIR emissions
trading programs. On August 21, 2012,
the D.C. Circuit Court of Appeals
vacated CSAPR, and ordered EPA to
continue implementing CAIR in the
interim. On June 24, 2013, the U.S.
Supreme Court granted EPA’s petition
for certiorari and agreed to review the
decision by the D.C. Circuit Court. EME
Homer City Generation, L.P. v. EPA, 696
F.3d 7 (D.C. Cir. 2012), cert. granted, 81
U.S.L.W. 3702 (U.S. June 24, 2013) (No.
12–1182). In the meantime, and unless
the EME Homer City decision is
reversed or otherwise modified by the
Supreme Court, CAIR remains in place
and EPA intends to act in accordance
with the D.C. Circuit opinion in EME
Homer City.
II. Analysis of Ohio’s SIP Revisions
On November 15, 2010, Ohio EPA
submitted to EPA revisions to Ohio
OAC 3745–14, the chapter containing
Ohio’s rules for the NOX SIP Call. The
revisions were specifically in sections
3745–14–01 and 3745–14–06, and allow
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Federal Register / Vol. 78, No. 220 / Thursday, November 14, 2013 / Rules and Regulations
for Ohio’s CAIR NOX Ozone Season
Trading Program rules to supersede
Ohio’s NOX Budget Trading Program
rules. Although Ohio submitted these
revisions before the promulgation of
CSAPR, the revisions are still relevant
given the continuing implementation of
CAIR.
The first revision adds a subsection to
OAC 3745–14–01 which allows units
subject to OAC 3745–109, Ohio’s CAIR
rules, to be exempt from Ohio’s NOX
Budget Trading Program rules. In
context, the new subsection states, ‘‘(2)
The following units shall be exempt
from the requirements of the NOX
budget trading program: (a) Any unit to
which Chapter 3745–109 of the
Administrative Code applies.’’ (OAC
3745–14–01(C)) (emphasis added
showing new language). Because
participation in the CAIR NOX Ozone
Season Trading Program satisfies the
NOX SIP Call for EGUs and large nonEGUs, units subject to CAIR would not
need additional rules under the NOX
SIP Call. Also, Ohio’s requested
revisions to OAC 3745–14–01 would
leave the monitoring and reporting
requirements of OAC 3745–14 in place
for any EGUs or large non-EGUs subject
to the NOX SIP Call that would not
otherwise be required to monitor and
report ozone season NOX emissions
using 40 CFR Part 75.
The second revision adds a subsection
to OAC 3745–14–06 addressing excess
emissions for the 2008 control period,
the final year of the NOX Budget
Trading Program. Under the trading
programs, affected units are allocated a
certain number of allowances each year.
An allowance is equal to a ton of NOX
emissions. Allowances can also be
transferred to or from other participating
units. The resulting number of
allowances held for a given unit makes
up the unit’s compliance account. At
the end of each year, allowances equal
to the unit’s actual emissions for the
covered period are deducted from the
unit’s compliance account. Any excess
of the unit’s emissions over the total
number of allowances in the compliance
account, as well as any additional
quantity of allowances owed due to the
excess emissions penalty, is deducted
from the unit’s allocations for
subsequent years. The SIP revision for
OAC 3745–14–06 provides that
allowance deductions related to any
excess emissions by a unit for the 2008
control period should be taken from the
unit’s CAIR NOX Ozone Season Trading
Program compliance account rather than
the unit’s NOX Budget Trading Program
compliance account, because NOX
Budget Trading Program compliance
accounts would not receive any
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allowance allocations for years after
2008.
2008 was the year the NOX Budget
Trading Program transitioned to the
CAIR NOX Ozone Season Trading
Program, therefore the deduction of
allowances based on a source’s old NOX
Budget Trading Program budget from
the source’s new CAIR NOX Ozone
Season Trading Program budget ensures
that the source is still accountable for
emissions penalties based on excess
emissions despite the rule transition.
EPA finds the revisions to OAC 3745–
14–01, transitioning applicable
emissions units from Ohio’s NOX
Budget Trading Program rules to Ohio’s
CAIR rules, and revisions to OAC 3745–
14–06, transitioning 2008 allowance
deductions, approvable under the Clean
Air Act.
III. What action is EPA taking?
EPA is approving revisions to OAC
3745–14, specifically the additions to
sections 3745–14–01 and 3745–14–06
and the associated renumbering. CAIR is
the current rule implementing a trading
program to address interstate transport
and was promulgated to replace the
NOX SIP Call. CAIR is a more stringent
program and exceeds the requirements
of the NOX SIP Call. These revisions
allow for Ohio’s CAIR NOX Ozone
Season Trading Program to replace
Ohio’s NOX Budget Trading Program
where applicable, but leave the
requirements of the NOX SIP Call in
place for units not covered by CAIR.
These revisions are consistent with the
Clean Air Act and CAIR.
We are publishing this action without
prior proposal because we view this as
a noncontroversial amendment and
anticipate no adverse comments.
However, in the proposed rules section
of this Federal Register publication, we
are publishing a separate document that
will serve as the proposal to approve the
state plan if relevant adverse written
comments are filed. This rule will be
effective January 13, 2014 without
further notice unless we receive relevant
adverse written comments by December
16, 2013. If we receive such comments,
we will withdraw this action before the
effective date by publishing a
subsequent document that will
withdraw the final action. All public
comments received will then be
addressed in a subsequent final rule
based on the proposed action. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
Please note that if EPA receives adverse
comment on an amendment, paragraph,
or section of this rule and if that
provision may be severed from the
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68369
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment. If we do not receive any
comments, this action will be effective
January 13, 2014.
IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Clean Air Act and
applicable Federal regulations. 42
U.S.C. 7410(k); 40 CFR 52.02(a). Thus,
in reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the Clean Air Act. Accordingly, this
action merely approves state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
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68370
Federal Register / Vol. 78, No. 220 / Thursday, November 14, 2013 / Rules and Regulations
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by January 13, 2014.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. Parties with
objections to this direct final rule are
encouraged to file a comment in
response to the parallel notice of
proposed rulemaking for this action
published in the proposed rules section
of today’s Federal Register, rather than
file an immediate petition for judicial
review of this direct final rule, so that
EPA can withdraw this direct final rule
and address the comment in the
proposed rulemaking. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
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Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Reporting and
recordkeeping requirements.
Dated: September 16, 2013.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
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[FR Doc. 2013–27142 Filed 11–13–13; 8:45 am]
Purpose of This Rule
BILLING CODE 6560–50–P
The purpose of our direct final rule is
to notify the public that we are revising
the List of Endangered and Threatened
Wildlife to reflect the scientifically
accepted taxonomy and nomenclature of
one bird species listed under section 4
of the Act (16 U.S.C. 1531 et seq.). The
change to the List of Endangered and
Threatened Wildlife (50 CFR 17.11(h))
reflects the most recently accepted
scientific name in accordance with 50
CFR 17.11(b).
We are publishing this rule without a
prior proposal because this is a
noncontroversial action that, in the best
interest of the regulated public, should
be undertaken in as timely a manner as
possible. This rule will be effective, as
published in this document, on the
effective date specified in DATES, unless
we receive significant adverse
comments on or before the comment
due date specified in DATES. Significant
adverse comments are comments that
provide strong justification as to why
our rule should not be adopted or why
it should be changed.
If we receive significant adverse
comments, we will publish a document
in the Federal Register withdrawing
this rule before the effective date, and
we will engage in the normal
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.1870 is amended by
adding paragraph (c)(159) to read as
follows:
■
§ 52.1870
Identification of plan.
*
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R3–ES–2013–0114;
30120–1113–0000–C4]
RIN 1018–AZ90
Endangered and Threatened Wildlife
and Plants; Technical Corrections for
Kirtland’s Warbler
Fish and Wildlife Service,
Interior.
ACTION: Direct final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service, announce the revised
taxonomy of Dendroica kirtlandii
(Kirtland’s warbler) under the
Endangered Species Act of 1973, as
amended (Act). We are revising the List
of Endangered and Threatened Wildlife
to reflect the scientifically accepted
taxonomy and nomenclature of this
species. We revise the scientific name of
the species as follows: Setophaga
kirtlandii (= D. kirtlandii).
SUMMARY:
List of Subjects in 40 CFR Part 52
VerDate Mar<15>2010
*
*
*
*
(c) * * *
(159) On August November 15, 2010,
Ohio submitted revisions to Ohio
Administrative Code Chapter 3745–14,
Rules 3745–14–01 and 3745–14–06. The
revisions sunset NOX Budget Trading
Program rules for units subject to CAIR
NOX Ozone Season Trading Program
rules.
(i) Incorporation by reference.
(A) Ohio Administrative Code Rule
3745–14–01 ‘‘Definitions and general
provisions.’’, effective October 18, 2010.
(B) Ohio Administrative Code Rule
3745–14–06 ‘‘The NOx allowance
tracking system.’’, effective October 18,
2010.
(C) October 8, 2010, ‘‘Director’s Final
Findings and Orders’’, signed by Chris
Korleski, Director, Ohio Environmental
Protection Agency.
This rule is effective February
12, 2014 without further action, unless
significant adverse comment is received
by January 13, 2014. If significant
adverse comment is received, we will
publish a timely withdrawal of the rule
in the Federal Register.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments to
Docket No. FWS–R3–ES–2013–0114.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–R3–
ES–2013–0114; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
See Public Comments in SUPPLEMENTARY
INFORMATION for more information about
submitting comments.
FOR FURTHER INFORMATION CONTACT:
Barbara Hosler, Endangered Species
Coordinator, U.S. Fish and Wildlife
Service, Ecological Services Field
Office, 2651 Coolidge Road, East
Lansing, Michigan 44823; telephone
517–351–6326. Individuals who are
hearing impaired or speech impaired
may call the Federal Relay Service at
800–877–8337 for TTY (telephone
typewriter or teletypewriter) assistance.
SUPPLEMENTARY INFORMATION:
PART 52—APPROVAL AND
PROMULGATON OF IMPLEMETATION
PLANS
PO 00000
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[Federal Register Volume 78, Number 220 (Thursday, November 14, 2013)]
[Rules and Regulations]
[Pages 68367-68370]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27142]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2010-0997; FRL-9901- 38-Region 5]
Approval and Promulgation of Air Quality Implementation Plans;
Ohio; Ohio NOX SIP Call Rule Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: On November 15, 2010, Ohio EPA submitted to EPA revisions to
Ohio OAC 3745-14. EPA is approving these revisions under the Clean Air
Act, which allows for Ohio's Clean Air Interstate Rule (CAIR)
NOX Ozone Season Trading Program rules to supersede Ohio's
nitrogen oxides (NOX) State Implementation Plan (SIP) Call
Budget Trading Program rules, but leave other requirements of the
NOX SIP Call in place for units not covered by CAIR.
DATES: This rule is effective January 13, 2014, unless EPA receives
adverse comments by December 16, 2013. If adverse comments are
received, EPA will publish a timely withdrawal of the direct final rule
in the Federal Register informing the public that the rule will not
take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2010-0997, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: aburano.douglas@epa.gov.
3. Fax: (312) 408-2279.
4. Mail: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
[[Page 68368]]
5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2010-0997. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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 www.regulations.gov or email. The
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 email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
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 www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone Sarah Arra, Environmental Scientist, at
(312) 886-9401 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-9401, Arra.Sarah@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. Background
II. Analysis of Ohio's SIP Revisions
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. Background
On October 27, 1998 (63 FR 57356), EPA published the ``Finding of
Significant Contribution and Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of Reducing Regional
Transport of Ozone,'' commonly referred to as the NOX SIP
Call. Under the NOX SIP Call, 22 states and the District of
Columbia, including Ohio, were required to submit plans reducing
NOX emissions to reduce ozone transport throughout the
eastern half of the United States. The obligations of the rule could be
met through a cap and trade program for NOX emissions
(referred to as the NOX Budget Trading Program) for large
electric generating units (EGUs) and other large boilers and turbines
(non-EGUs), along with controls on cement kilns and large internal
combustion engines. Under the NOX SIP Call, states have
flexibility in determining where NOX emission reductions are
achieved and can choose other ways to comply. For the most part, states
found that EGUs and other large industrial boilers, cement kilns, and
internal combustion engines were the most cost-effective sources for
NOX emissions reductions.
On May 12, 2005 (70 CFR 25162), EPA published the ``Rule to Reduce
Interstate Transport of Fine Particulate Matter and Ozone,'' commonly
known as the Clean Air Interstate Rule (CAIR). This rule required 28
states and the District of Columbia to submit plans reducing
NOX and sulfur dioxide (SO2) emissions to reduce
the interstate transport of ozone and fine particulates. Each state
generally has separate budgets for ozone season NOX, annual
NOX, and annual SO2 emissions. For each covered
pollutant, the state must achieve the required emission reductions
either by requiring EGUs (and large non-EGUs in the case of ozone
season NOX) to participate in an EPA-administered interstate
cap and trade system that caps emissions in two stages, or by meeting
an individual state emissions budget through measures of the state's
choosing. CAIR includes a NOX Ozone Season Trading Program
that supersedes the NOx Budget Trading Program. States subject to both
the NOX SIP Call and CAIR's ozone season NOX
requirements (including Ohio) could choose to participate in the CAIR
NOX Ozone Season Trading Program and in so doing satisfy the
requirements of the NOX SIP Call with regard to EGUs and
large non-EGUs. In 2008, the D.C. Circuit Court of Appeals remanded
CAIR to EPA but left the rule in place pending its replacement. North
Carolina v. EPA, 531 F.3d 896 (D.C. Cir.), modified, 550 F.3d 1176
(D.C. Cir. 2008).
In response to the remand of CAIR, on August 8, 2011 (76 FR 48208),
EPA published the ``Federal Implementation Plans: Interstate Transport
of Fine Particulate Matter and Ozone and Correction of SIP Approvals,''
commonly known as the Cross-State Air Pollution Rule (CSAPR). CSAPR
addresses interstate transport of ozone and fine particulates by
setting state budgets for 28 states, including Ohio, for ozone season
NOX, annual NOX, and annual SO2
emissions. CSAPR also establishes emissions trading programs that would
replace the CAIR emissions trading programs. On August 21, 2012, the
D.C. Circuit Court of Appeals vacated CSAPR, and ordered EPA to
continue implementing CAIR in the interim. On June 24, 2013, the U.S.
Supreme Court granted EPA's petition for certiorari and agreed to
review the decision by the D.C. Circuit Court. EME Homer City
Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 81
U.S.L.W. 3702 (U.S. June 24, 2013) (No. 12-1182). In the meantime, and
unless the EME Homer City decision is reversed or otherwise modified by
the Supreme Court, CAIR remains in place and EPA intends to act in
accordance with the D.C. Circuit opinion in EME Homer City.
II. Analysis of Ohio's SIP Revisions
On November 15, 2010, Ohio EPA submitted to EPA revisions to Ohio
OAC 3745-14, the chapter containing Ohio's rules for the NOX
SIP Call. The revisions were specifically in sections 3745-14-01 and
3745-14-06, and allow
[[Page 68369]]
for Ohio's CAIR NOX Ozone Season Trading Program rules to
supersede Ohio's NOX Budget Trading Program rules. Although
Ohio submitted these revisions before the promulgation of CSAPR, the
revisions are still relevant given the continuing implementation of
CAIR.
The first revision adds a subsection to OAC 3745-14-01 which allows
units subject to OAC 3745-109, Ohio's CAIR rules, to be exempt from
Ohio's NOX Budget Trading Program rules. In context, the new
subsection states, ``(2) The following units shall be exempt from the
requirements of the NOX budget trading program: (a) Any unit
to which Chapter 3745-109 of the Administrative Code applies.'' (OAC
3745-14-01(C)) (emphasis added showing new language). Because
participation in the CAIR NOX Ozone Season Trading Program
satisfies the NOX SIP Call for EGUs and large non-EGUs,
units subject to CAIR would not need additional rules under the
NOX SIP Call. Also, Ohio's requested revisions to OAC 3745-
14-01 would leave the monitoring and reporting requirements of OAC
3745-14 in place for any EGUs or large non-EGUs subject to the
NOX SIP Call that would not otherwise be required to monitor
and report ozone season NOX emissions using 40 CFR Part 75.
The second revision adds a subsection to OAC 3745-14-06 addressing
excess emissions for the 2008 control period, the final year of the
NOX Budget Trading Program. Under the trading programs,
affected units are allocated a certain number of allowances each year.
An allowance is equal to a ton of NOX emissions. Allowances
can also be transferred to or from other participating units. The
resulting number of allowances held for a given unit makes up the
unit's compliance account. At the end of each year, allowances equal to
the unit's actual emissions for the covered period are deducted from
the unit's compliance account. Any excess of the unit's emissions over
the total number of allowances in the compliance account, as well as
any additional quantity of allowances owed due to the excess emissions
penalty, is deducted from the unit's allocations for subsequent years.
The SIP revision for OAC 3745-14-06 provides that allowance deductions
related to any excess emissions by a unit for the 2008 control period
should be taken from the unit's CAIR NOX Ozone Season
Trading Program compliance account rather than the unit's
NOX Budget Trading Program compliance account, because
NOX Budget Trading Program compliance accounts would not
receive any allowance allocations for years after 2008.
2008 was the year the NOX Budget Trading Program
transitioned to the CAIR NOX Ozone Season Trading Program,
therefore the deduction of allowances based on a source's old
NOX Budget Trading Program budget from the source's new CAIR
NOX Ozone Season Trading Program budget ensures that the
source is still accountable for emissions penalties based on excess
emissions despite the rule transition. EPA finds the revisions to OAC
3745-14-01, transitioning applicable emissions units from Ohio's
NOX Budget Trading Program rules to Ohio's CAIR rules, and
revisions to OAC 3745-14-06, transitioning 2008 allowance deductions,
approvable under the Clean Air Act.
III. What action is EPA taking?
EPA is approving revisions to OAC 3745-14, specifically the
additions to sections 3745-14-01 and 3745-14-06 and the associated
renumbering. CAIR is the current rule implementing a trading program to
address interstate transport and was promulgated to replace the
NOX SIP Call. CAIR is a more stringent program and exceeds
the requirements of the NOX SIP Call. These revisions allow
for Ohio's CAIR NOX Ozone Season Trading Program to replace
Ohio's NOX Budget Trading Program where applicable, but
leave the requirements of the NOX SIP Call in place for
units not covered by CAIR. These revisions are consistent with the
Clean Air Act and CAIR.
We are publishing this action without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the state plan if relevant adverse
written comments are filed. This rule will be effective January 13,
2014 without further notice unless we receive relevant adverse written
comments by December 16, 2013. If we receive such comments, we will
withdraw this action before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on the proposed action. EPA will not institute a second comment
period. Any parties interested in commenting on this action should do
so at this time. Please note that if EPA receives adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, EPA may adopt as final those
provisions of the rule that are not the subject of an adverse comment.
If we do not receive any comments, this action will be effective
January 13, 2014.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Clean Air Act
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
[[Page 68370]]
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 13, 2014. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. Parties with objections to this direct final
rule are encouraged to file a comment in response to the parallel
notice of proposed rulemaking for this action published in the proposed
rules section of today's Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Reporting and
recordkeeping requirements.
Dated: September 16, 2013.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATON OF IMPLEMETATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.1870 is amended by adding paragraph (c)(159) to read as
follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(159) On August November 15, 2010, Ohio submitted revisions to Ohio
Administrative Code Chapter 3745-14, Rules 3745-14-01 and 3745-14-06.
The revisions sunset NOX Budget Trading Program rules for
units subject to CAIR NOX Ozone Season Trading Program
rules.
(i) Incorporation by reference.
(A) Ohio Administrative Code Rule 3745-14-01 ``Definitions and
general provisions.'', effective October 18, 2010.
(B) Ohio Administrative Code Rule 3745-14-06 ``The NOx allowance
tracking system.'', effective October 18, 2010.
(C) October 8, 2010, ``Director's Final Findings and Orders'',
signed by Chris Korleski, Director, Ohio Environmental Protection
Agency.
[FR Doc. 2013-27142 Filed 11-13-13; 8:45 am]
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