Emissions Monitoring Provisions in State Implementation Plans Required Under the NOX, 8422-8443 [2019-03854]
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Federal Register / Vol. 84, No. 46 / Friday, March 8, 2019 / Rules and Regulations
Consideration supporting this
determination is available in the docket
where indicated under ADDRESSES.
G. Protest Activities
The Coast Guard respects the First
Amendment rights of protesters.
Protesters are asked to contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1.
§ 165.23 apply to the area described in
paragraph (a) of this section.
(2) With the exception of demolition
crews, entry into or remaining in this
safety zone is prohibited.
(3) All vessels within this safety zone
when this section becomes effective
must depart the zone immediately.
(4) The Captain of the Port, North
Carolina can be reached through the
Coast Guard Sector North Carolina
Command Duty Officer, Wilmington,
North Carolina at telephone number
910–343–3882.
(5) The Coast Guard and designated
security vessels enforcing the safety
zone can be contacted on VHF–FM
marine band radio channel 13 (165.65
MHz) and channel 16 (156.8 MHz).
(d) Enforcement. The U.S. Coast
Guard may be assisted in the patrol and
enforcement of the safety zone by
Federal, State, and local agencies.
(e) Enforcement period. This
regulation will be enforced from March
4, 2019, through March 30, 2020.
(f) Public notification. The Coast
Guard will notify the public of the
active enforcement times at least 48
hours in advance by transmitting
Broadcast Notice to Mariners via VHF–
FM marine channel 16.
2. Add § 165.T05–1065 to read as
follows:
Dated: March 4, 2019.
Bion B. Stewart,
Captain, U. S. Coast Guard Captain of the
Port North Carolina.
§ 165.T05–1065 Safety Zone; Oregon Inlet,
Dare County, NC.
[FR Doc. 2019–04219 Filed 3–7–19; 8:45 am]
■
(a) Location. The following area is a
safety zone: all navigable waters of
Oregon Inlet, within 100 yards of active
demolition work and demolition
equipment, along the old Herbert C.
Bonner Bridge, which follows a line
beginning at approximate position
35°46′47″ N, 75°32′41″ W, then
southeast to 35°46′37″ N, 75°32′33″ W,
then southeast to 35°46′09″ N, 75°31′59″
W, then southeast to 35°46′03″ N,
75°31′51″ W, then southeast to
35°46′01″ N, 75°31′40″ W (NAD 1983) in
Dare County, NC.
(b) Definitions. As used in this
section—
Designated representative means a
Coast Guard Patrol Commander,
including a Coast Guard commissioned,
warrant, or petty officer designated by
the Captain of the Port North Carolina
(COTP) for the enforcement of the safety
zone.
Captain of the Port means the
Commander, Sector North Carolina.
Demolition crews means persons and
vessels involved in support of
demolition.
(c) Regulations. (1) The general
regulations governing safety zones in
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BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 52
[EPA–HQ–OAR–2018–0595; FRL–9990–33–
OAR]
RIN 2060–AU08
Emissions Monitoring Provisions in
State Implementation Plans Required
Under the NOX SIP Call
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is revising some of the
regulations that were originally
promulgated in 1998 to implement the
NOX SIP Call. The revisions give
covered states greater flexibility
concerning the form of the nitrogen
oxides (NOX) emissions monitoring
requirements that the states must
include in their state implementation
plans (SIPs) for certain emissions
sources. Other revisions remove
SUMMARY:
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obsolete provisions and clarify the
remaining regulations but do not
substantively alter any current
regulatory requirements.
This rule is effective as of March
8, 2019.
DATES:
EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2018–0595. All
documents in the docket are listed on
the https://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., confidential business information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available electronically through https://
www.regulations.gov.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
David Lifland, Clean Air Markets
Division, Office of Atmospheric
Programs, U.S. Environmental
Protection Agency, MC 6204M, 1200
Pennsylvania Avenue NW, Washington,
DC 20460; 202–343–9151;
lifland.david@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview of the Action
A. Summary of Amendments and
Estimated Impacts
B. Potentially Affected Entities
C. Statutory Authority
II. Summary of the Proposal
A. Background
B. Proposed Amendment to Emissions
Monitoring Requirements
C. Other Proposed Amendments
D. Public Comment Process
III. Response to Comments
A. Emissions Monitoring Requirements
B. Emissions Reduction Requirements
C. Baseline Emissions Inventory Table
D. Post-NBTP Transition Requirements
IV. Final Action
V. Impacts of the Amendments
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review, and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
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I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
J. National Technology Transfer
Advancement Act
K. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
L. Congressional Review Act
M. Determinations Under CAA Section
307(b) and (d)
I. Overview of the Action
This section provides an overview of
the action, including a summary of the
amendments and their estimated
impacts as well as information
concerning potentially affected entities
and statutory authority.
Section II provides a summary of the
proposal for this action, including
background information. In section III,
EPA summarizes and responds to
comments received on the proposal.
EPA’s final action is set forth in section
IV, and section V discusses the
estimated impacts of the amendments.
Section VI addresses reviews required
under various statutes and executive
orders as well as determinations
concerning applicable rulemaking and
judicial review provisions.
A. Summary of Amendments and
Estimated Impacts
On September 27, 2018, EPA
published in the Federal Register a
proposal 1 to amend the existing NOX
SIP Call regulations 2 to allow states to
amend their SIPs, for NOX SIP Call
purposes only, to establish emissions
monitoring requirements for certain
units other than requirements to
monitor according to 40 CFR part 75.
This action finalizes the amendment
generally as proposed, with minor
further revisions discussed in section IV
of this document. Ultimately, such
alternate monitoring requirements could
be made available to sources through
states’ revisions to their SIPs, with
consequent potential reductions in some
units’ monitoring costs. The group of
units affected under the SIPs adopted to
meet the NOX SIP Call comprises both
existing and new electricity generating
units (EGUs) as well as certain other
1 Emissions Monitoring Provisions in State
Implementation Plans Required Under the NOX SIP
Call, Proposed Rule, 83 FR 48751 (Sept. 27, 2018).
2 Finding of Significant Contribution and
Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of
Reducing Regional Transport of Ozone (NOX SIP
Call), 63 FR 57356 (Oct. 27, 1998) (codified in
relevant part at 40 CFR 51.121 and 51.122).
Amendments to the NOX SIP Call regulations made
between issuance and implementation are
described in the proposal for this action, 83 FR at
48755 & nn.11–15.
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existing and new industrial units (nonEGUs). Within this overall group, the set
of existing units potentially affected by
the amendment includes approximately
285 non-EGU boilers and combustion
turbines and approximately 30 EGUs—
specifically, combustion turbines that
are considered large EGUs for NOX SIP
Call purposes and that are not required
to monitor according to part 75 under
other programs such as the Acid Rain
Program or a Cross-State Air Pollution
Rule (CSAPR) trading program. States,
not EPA, will decide whether to revise
the monitoring requirements in their
SIPs as allowed under this amendment,
and EPA lacks complete information on
the remaining monitoring requirements
that the sources would face if a state
decides to make such revisions, leaving
considerable uncertainty regarding the
amount of monitoring cost reductions
that may occur. However, using
information from comments and
assumptions concerning the sources’
remaining monitoring requirements,
EPA estimates annual monitoring cost
reductions from this action in the range
of $1.2 million to $3.3 million. Because
this action is not expected to cause any
change in emissions or air quality, the
monitoring cost reductions will
constitute net benefits from the action.
In addition, EPA is eliminating
several obsolete provisions of the NOX
SIP Call regulations that no longer have
any substantive effect on the regulatory
requirements faced by states or sources
and is making clarifying amendments—
all of which EPA considers nonsubstantive—to the remaining
regulations. The additional amendments
also include updates to several crossreferences in the CSAPR regulations that
refer to an obsolete provision of the NOX
SIP Call regulations. The specific
additional amendments discussed in the
proposal are identified in section II.C. of
this document, and the amendments are
being finalized generally as proposed,
with minor further revisions discussed
in section IV of this document.
B. Potentially Affected Entities
This action does not apply directly to
any emissions sources but instead
amends existing regulatory
requirements applicable to the SIPs of
Alabama, Connecticut, Delaware,
Illinois, Indiana, Kentucky, Maryland,
Massachusetts, Michigan, Missouri,
New Jersey, New York, North Carolina,
Ohio, Pennsylvania, Rhode Island,
South Carolina, Tennessee, Virginia,
West Virginia, and the District of
Columbia. If an affected jurisdiction
chooses to revise its SIP in response to
these amendments, sources in the
jurisdiction could be indirectly affected
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if they are subject to emissions
monitoring requirements for purposes of
the NOX SIP Call and are not
independently subject to comparable
requirements under another program
such as the Acid Rain Program or a
CSAPR trading program. Generally, the
types of sources that could be indirectly
affected are fossil fuel-fired boilers and
stationary combustion turbines with
heat input capacities over 250 million
British thermal units per hour (mmBtu/
hr) or serving electricity generators with
capacities over 25 megawatts (MW).
Sources meeting these criteria operate in
a variety of industries, including but not
limited to the following:
NAICS *
code
Examples of industries with
potentially affected sources
221112 ...
Fossil fuel-fired electric power generation.
Grain and oilseed milling.
Pulp, paper, and paperboard mills.
Petroleum and coal products manufacturing.
Basic chemical manufacturing.
Iron and steel mills and ferroalloy manufacturing.
Colleges, universities, and professional
schools.
3112 .......
3221 .......
3241 .......
3251 .......
3311 .......
6113 .......
* North American Industry Classification System.
C. Statutory Authority
Statutory authority for this action is
provided by Clean Air Act (CAA)
sections 110 and 301, 42 U.S.C. 7410
and 7601, which also provided statutory
authority for issuance of the existing
NOX SIP Call regulations that EPA is
amending in this action.3
II. Summary of the Proposal
This section summarizes the proposal
for this action. Section II.A. repeats
some of the background information
from the proposal. Section II.B.
addresses the proposed amendment to
the NOX SIP Call’s emissions
monitoring requirements, reiterating the
proposed rationale and summarizing the
proposal’s discussion of projected
impacts. Sections II.C. and II.D.
summarize the remaining proposed
amendments and describe the public
comment process.
A. Background
Under the CAA, EPA establishes and
periodically revises national ambient air
quality standards (NAAQS) for certain
pollutants, including ground-level
ozone, while states have primary
responsibility for attaining the NAAQS
through the adoption of emission
control measures in their SIPs. Under
CAA section 110(a)(2)(D)(i)(I), 42 U.S.C.
7410(a)(2)(D)(i)(I), often called the
‘‘good neighbor’’ provision, each state is
3 See,
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e.g., 63 FR at 57366, 57479.
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required to include provisions in its SIP
prohibiting emissions that ‘‘will . . .
contribute significantly to
nonattainment in, or interfere with
maintenance by, any other State with
respect to any [NAAQS].’’ In 1998, EPA
issued the NOX SIP Call (the Rule)
identifying good neighbor obligations
with respect to the 1979 1-hour ozone
NAAQS and calling for SIP revisions to
address those obligations.4 The Rule’s
regulatory text was codified at 40 CFR
51.121, addressing the required SIP
revisions, and 40 CFR 51.122,
addressing states’ periodic reporting
requirements. As implemented, the Rule
required 20 states and the District of
Columbia 5 to revise their SIPs to reduce
their sources’ emissions of NOX, an
ozone precursor, during the May–
September ‘‘ozone season’’ starting in
2004.
To implement the NOX SIP Call’s
emissions reduction requirements, EPA
promulgated a ‘‘budget’’ for the
statewide seasonal NOX emissions from
each covered state. Each state’s
emissions budget was calculated as the
state’s projected 2007 pre-control or
‘‘baseline’’ emissions inventory minus
the state’s required emissions reduction.
The Rule did not mandate that states
follow any particular approach for
achieving their required emissions
reductions. Instead, states retained wide
discretion regarding which sources in
their states to control and what control
measures to employ. Each state was
simply required to demonstrate that
whatever control measures it chose to
include in its SIP revision would be
sufficient to ensure that projected 2007
statewide seasonal NOX emissions from
its sources would not exceed its
emissions budget.
Besides the general flexibility given to
states regarding the choices of sources
and control measures, the NOX SIP Call
included additional provisions designed
to increase compliance flexibility. Most
notably, the Rule allowed states to adopt
interstate emission allowance trading
programs as control measures to
4 63 FR 57356. As described in the proposal for
this action, an amendment to the NOX SIP Call
made before the Rule’s implementation indefinitely
stayed the additional findings of good neighbor
obligations with respect to the 1997 8-hour ozone
NAAQS that were included in the Rule as issued.
See 83 FR at 48755.
5 The Rule as implemented applies to
Connecticut, Delaware, Illinois, Indiana, Kentucky,
Maryland, Massachusetts, New Jersey, New York,
North Carolina, Ohio, Pennsylvania, Rhode Island,
South Carolina, Tennessee, Virginia, and West
Virginia; portions of Alabama, Michigan, and
Missouri; and the District of Columbia. For
simplicity, this document often refers to all the
jurisdictions with obligations under the CAA and
the NOX SIP Call, including the District of
Columbia, as ‘‘states.’’
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accomplish some or all of the required
emissions reductions. EPA also
provided a model rule for an EPAadministered interstate trading
program—the NOX Budget Trading
Program (NBTP)—that would meet all
the Rule’s SIP approval criteria for a
trading program for two types of
sources: Fossil fuel-fired EGU boilers
and combustion turbines serving
electricity generators with capacity
ratings greater than 25 MW (large
EGUs), and fossil fuel-fired non-EGU
boilers and combustion turbines with
heat input ratings greater than 250
mmBtu/hr (large non-EGU boilers and
turbines).
While generally oriented toward
providing states and sources with
compliance flexibility, the NOX SIP Call
also included two conditional
provisions that would become
mandatory SIP requirements for large
EGUs and large non-EGU boilers and
turbines if states chose to include any
emission control measures for these
types of sources in their SIP revisions.
First, under § 51.121(f)(2), any control
measures imposed on these types of
sources would be required to include
enforceable limits on the sources’
seasonal NOX mass emissions. These
limits could take several forms,
including either limits on individual
sources or collective limits on the group
of all such sources in a state. Second,
under § 51.121(i)(4), these sources
would be required to monitor and report
their seasonal NOX mass emissions
according to the provisions of 40 CFR
part 75.6 One way a state could meet
these two SIP requirements was to adopt
the NBTP, because the NBTP included
provisions addressing both
requirements and was expressly
designed as a potential control measure
for these types of sources.
All the jurisdictions subject to the
NOX SIP Call as implemented ultimately
chose to adopt the NBTP for large EGUs
and large non-EGU boilers and turbines
as part of their required SIP revisions.
By adopting control measures
applicable to large EGUs and large nonEGU boilers and turbines into their SIPs,
all the affected jurisdictions triggered
the obligations for their SIPs to include
enforceable mass emissions limits and
part 75 monitoring requirements for
these types of sources. These
requirements have remained in effect
despite the discontinuation of the NBTP
following the 2008 ozone season.7
6 For brevity, this document generally refers to
the monitoring, recordkeeping, and reporting
requirements in 40 CFR part 75 as ‘‘part 75
monitoring requirements.’’
7 Some states expanded NBTP applicability under
their SIPs to include additional sources such as
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The NBTP was implemented starting
in 2003 for sources in several
northeastern states and in 2004 for
sources in most of the remaining NOX
SIP Call states. Missouri sources joined
the NBTP in 2007, and EPA continued
to administer the NBTP through the
2008 ozone season. Since the 2008
ozone season, EPA has replaced the
NBTP with a series of three similar
interstate emission allowance trading
programs designed to address eastern
states’ good neighbor obligations with
respect to ozone NAAQS more recent
than the 1979 1-hour ozone NAAQS.
The NBTP’s three successor seasonal
NOX trading programs were established
under the Clean Air Interstate Rule
(CAIR),8 which was remanded to EPA
for replacement; 9 the original CSAPR,10
which replaced CAIR; and most recently
the CSAPR Update.11 The seasonal NOX
trading programs established under
CAIR and the original CSAPR were both
designed to address the 1997 8-hour
ozone NAAQS, while the trading
program established under the CSAPR
Update was designed to address the
2008 8-hour ozone NAAQS. The CAIR
seasonal NOX trading program operated
from 2009 through 2014, the original
CSAPR seasonal NOX trading program
started operating in 2015,12 and the
CSAPR Update trading program started
operating in 2017.
For purposes of this action, the most
important difference between the NBTP
and its successor seasonal NOX trading
programs concerns the types of sources
participating in the various programs.
As discussed above, the NBTP was
designed to cover both large EGUs and
large non-EGU boilers and turbines. In
contrast, by default the three successor
trading programs have covered only
units considered EGUs under those
process heaters, cement kilns, and smaller EGUs.
Unlike large EGUs and large non-EGU boilers and
turbines, the additional sources are not subject to
the NOX SIP Call’s ongoing obligation under
§ 51.121(i)(4) for SIPs to include part 75 monitoring
requirements and therefore are not affected by the
amendments being finalized in this action.
8 70 FR 25162 (May 12, 2005) (SIP requirements);
71 FR 25328 (Apr. 28, 2006) (parallel Federal
implementation plan requirements).
9 North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008), modified on rehearing, 550 F.3d 1176 (D.C.
Cir. 2008).
10 76 FR 48208 (Aug. 8, 2011); see also 76 FR
80760 (Dec. 27, 2011) (adding seasonal NOX
emissions reduction requirements for sources in
five states), 79 FR 71663 (Dec. 3, 2014) (tolling
implementation dates by three years).
11 81 FR 74504 (Oct. 26, 2016). Consolidated
challenges to the CSAPR Update are pending in
Wisconsin v. EPA, No. 16–1406 (D.C. Cir. argued
Oct. 3, 2018).
12 The original CSAPR seasonal NO trading
X
program remains in effect for sources in Georgia but
after 2016 has not applied to sources in any state
subject to the NOX SIP Call as implemented.
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programs, which generally means all
units that would be classified as NOX
SIP Call large EGUs as well as a small
subset of the units that would be
classified as NOX SIP Call large nonEGU boilers and turbines.13 Under the
CAIR seasonal NOX trading program,
most NOX SIP Call states exercised an
option to expand program applicability
to include all their NOX SIP Call large
non-EGU boilers and turbines, but the
option was eliminated under the
original CSAPR seasonal NOX trading
program and no state has exercised the
restored option made available under
the CSAPR Update trading program.
Consequently, at present most NOX SIP
Call large non-EGU boilers and turbines
do not participate in a successor trading
program to the NBTP.
The second relevant difference
between the NBTP and its successor
trading programs concerns the various
programs’ geographic areas of coverage.
At present, EGUs in fourteen NOX SIP
Call states participate in the CSAPR
Update trading program.14 EGUs in the
remaining seven NOX SIP Call
jurisdictions do not currently
participate in a successor trading
program to the NBTP, although most
such units are subject to other EPA
programs with comparable part 75
monitoring requirements.15
In the CAIR rulemaking, EPA
amended the NOX SIP Call regulations
both to provide that the NBTP would be
discontinued upon implementation of
the CAIR seasonal NOX trading program
and to require states to adopt
replacement control measures into their
SIPs to ensure continued achievement
of the portions of their NOX SIP Call
emissions reduction requirements that
13 For example, under the NO SIP Call as
X
implemented, a unit qualifying as exempt from the
Acid Rain Program under the provision for
cogeneration units at 40 CFR 72.6(b)(4) would be
classified as a non-EGU, but in some instances such
a unit could be covered under the CAIR, original
CSAPR, and CSAPR Update trading programs as an
EGU.
14 The CSAPR Update applies to EGUs in the NO
X
SIP Call states of Alabama, Illinois, Indiana,
Kentucky, Maryland, Michigan, Missouri, New
Jersey, New York, Ohio, Pennsylvania, Tennessee,
Virginia, and West Virginia as well as eight
additional states that are not subject to the NOX SIP
Call as implemented.
15 EGUs in the NO SIP Call jurisdictions of
X
Connecticut, Delaware, Massachusetts, North
Carolina, Rhode Island, South Carolina, and the
District of Columbia are not subject to the CSAPR
Update. All NOX SIP Call EGUs in North Carolina
and South Carolina are required to monitor NOX
mass emissions according to part 75 under a CSAPR
trading program for annual NOX emissions, and
most NOX SIP Call EGUs in the remaining
jurisdictions are required to monitor NOX emission
rate and heat input rate according to part 75 under
the Acid Rain Program.
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had been met through the NBTP.16 As
noted above, notwithstanding the
discontinuation of the NBTP, the NOX
SIP Call’s requirements for enforceable
mass emissions limits and part 75
monitoring have continued to apply to
large EGUs and large non-EGU boilers
and turbines in all affected states. Since
the CAIR rulemaking, EPA has worked
with NOX SIP Call states individually to
assist them in revising their SIPs to meet
these ongoing NOX SIP Call
requirements, whether through use of
the NBTP’s successor trading programs
(to the extent those options have been
available) or through other replacement
control measures.
Under CAA section 107(d)(3)(E), 42
U.S.C. 7407(d)(3)(E), redesignation of an
area to attainment of a NAAQS requires
a determination that the improvement
in air quality is due to ‘‘permanent and
enforceable’’ emissions reductions. At
least 140 EPA final actions
redesignating areas in 20 states to
attainment with an ozone NAAQS or a
fine particulate matter (PM2.5) NAAQS—
because NOX is a precursor to PM2.5 as
well as ozone—have relied in part on
the NOX SIP Call’s emissions
reductions.17 In this action, to avoid any
possible argument that amendments to
the NOX SIP Call might result in a
lessening of permanence and
enforceability that could threaten
continued reliance on the Rule’s
emissions reductions to support other
actions, EPA is not substantively
amending the Rule’s key provisions
supporting these attributes. These key
provisions include the statewide
emissions budgets and general
enforceability and monitoring
requirements as well as the
requirements for enforceable limits on
seasonal NOX mass emissions from large
EGUs and large non-EGU boilers and
turbines.18 As discussed in section II.B.
16 40 CFR 51.121(r); see also 40 CFR 51.123(bb)
and 52.38(b)(10)(ii) (authorizing use of CAIR and
CSAPR Update seasonal NOX trading programs as
NBTP replacement control measures for large nonEGU boilers and turbines).
17 See Redesignation Actions Relying on NO SIP
X
Call Emissions Reductions (August 2018), available
in the docket for this action. EPA notes that reliance
on the Rule’s emissions reductions as permanent
and enforceable for purposes of redesignation
actions has been upheld by multiple courts of
appeals. Sierra Club v. EPA, 774 F.3d 383, 397–99
(7th Cir. 2014); Sierra Club v. EPA, 793 F.3d 656,
665–68 (6th Cir. 2015).
18 EPA notes that the implementation rules for
both the 1997 ozone NAAQS and the 2008 ozone
NAAQS have required that the NOX SIP Call in
general and states’ emissions budgets in particular
will continue to apply after revocation of the
previous NAAQS and have also made clear that any
modifications to control requirements approved
into a SIP pursuant to the Rule are subject to antibacksliding requirements under CAA section 110(l),
42 U.S.C. 7410(l). See 40 CFR 51.905(f), 51.1105(e).
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of this document, EPA believes that
under current circumstances, the
amendment to allow states to establish
alternate monitoring requirements for
large EGUs and large non-EGU boilers
and turbines does not undermine
assurance that the Rule’s required
emissions reductions will continue to be
achieved and therefore does not pose a
risk to the permanence and
enforceability of the emissions
reductions.
B. Proposed Amendment to Emissions
Monitoring Requirements
The only substantive amendment to
the NOX SIP Call regulations proposed
for this action concerns emissions
monitoring requirements. Under 40 CFR
51.121(i)(4) of the regulations as
originally promulgated, where a state’s
SIP revision contains control measures
for large EGUs or large non-EGU boilers
and turbines, the SIP must also require
part 75 monitoring for these types of
sources. As discussed in section II.A. of
this document, all NOX SIP Call states
triggered this requirement by including
control measures in their SIPs for these
types of sources, and the requirement
has remained in effect despite the
discontinuation of the NBTP after the
2008 ozone season. For this action, EPA
proposed to amend the provision at
§ 51.121(i)(4) to make the inclusion of
part 75 monitoring requirements for
these sources in SIPs optional rather
than mandatory for NOX SIP Call
purposes.19 The SIPs would still need to
include some form of emissions
monitoring requirements for these types
of sources, consistent with the Rule’s
general enforceability and monitoring
requirements at § 51.121(f)(1) and (i)(1),
respectively, but states would no longer
be required to satisfy these general Rule
requirements specifically through the
adoption of part 75 monitoring
requirements. EPA noted that
finalization of this proposed
amendment would not in itself
eliminate part 75 monitoring
requirements for any sources but would
enable EPA to approve SIP submittals
replacing these requirements for NOX
SIP Call purposes with other forms of
monitoring requirements.
In the proposal, EPA discussed the
following rationale for the proposed
amendment to emissions monitoring
requirements.20 The condition that SIPs
must include part 75 monitoring
requirements was established based on
19 The amendment would apply only for NO SIP
X
Call purposes and would not authorize states to
create exceptions to any part 75 monitoring
requirements that might apply to a source under a
different legal authority.
20 83 FR at 48757–58.
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determinations that, first, a requirement
for mass emissions limits for large EGUs
and large non-EGU boilers and turbines
was feasible and provided the greatest
assurance that the NOX SIP Call’s
required emissions reductions would be
achieved, and second, part 75
monitoring was a feasible and costeffective way to ensure compliance with
the mass emissions limits for these
sources.21 (Part 75 monitoring
requirements were also established
independently as an essential element
of the now-discontinued NBTP, which
like EPA’s other emission allowance
trading programs could function only
with timely reporting of consistent,
quality-assured mass emissions data by
all participating units.) To ensure that
the NOX SIP Call’s emissions reductions
can continue to be relied on as
permanent and enforceable for purposes
of other actions, EPA did not propose to
amend the Rule’s existing requirements
regarding enforceable mass emissions
limits for these sources. However, EPA
proposed the view that under current
circumstances, allowing states to
establish alternate monitoring
requirements for large EGUs and large
non-EGU boilers and turbines would not
pose a risk to the permanence and
enforceability of the Rule’s emissions
reductions.
The first relevant current
circumstance EPA discussed was the
substantial margins by which all NOX
SIP Call states are now complying with
the portions of their statewide emissions
budgets assigned to large EGUs and
large non-EGU boilers and turbines. As
shown in Table 1 of the proposal, which
is reproduced without change as Table
1 of this document, in 2017, seasonal
NOX emissions from sources that would
have been subject to the NBTP across
the region covered by the NOX SIP Call
were approximately 200,000 tons,
which is less than 40% of the sum of the
relevant portions of the statewide final
NOX budgets. Table 1 also shows that no
state’s reported emissions exceeded
71% of the relevant portion of its
budget.22 As noted by EPA, these
comparisons demonstrate that the Rule’s
required emissions reductions would
continue to be achieved even with
substantial increases in emissions from
current levels. EPA also observed that
the possibility of such large increases in
emissions is remote because of
requirements under other state and
Federal environmental programs 23 and
changes to the fleet of affected sources
since 2008.24
TABLE 1—2017 EMISSIONS AND RELEVANT EMISSIONS BUDGET AMOUNTS BY STATE
NOX emissions during the 2017 ozone season (tons) from:
Portion of
statewide
emissions
budget
assigned to
NBTP sources
(tons)
NBTP sources
also subject to
part 75 under
other
programs
Other NBTP
large EGUs
and large nonEGU boilers
and turbines
Other NBTP
sources
subject to part
75 under
NSC SIPs
Total for all
NBTP sources
Alabama (part) .....................................................................
Connecticut ..........................................................................
Delaware ..............................................................................
District of Columbia ..............................................................
Illinois ...................................................................................
Indiana .................................................................................
Kentucky ..............................................................................
Maryland ..............................................................................
Massachusetts .....................................................................
Michigan (part) .....................................................................
Missouri (part) ......................................................................
New Jersey ..........................................................................
New York .............................................................................
North Carolina ......................................................................
Ohio ......................................................................................
Pennsylvania ........................................................................
Rhode Island ........................................................................
South Carolina .....................................................................
Tennessee ...........................................................................
Virginia .................................................................................
West Virginia ........................................................................
7,166
380
324
0
13,038
20,396
19,978
2,422
734
14,580
9,486
1,646
4,062
16,352
20,012
13,616
193
5,030
7,785
7,462
18,187
1,911
10
511
20
1,493
1,201
75
516
113
205
0
310
941
1,689
993
837
0
1,043
2,350
589
276
0
39
0
0
0
823
0
0
32
0
0
0
611
0
0
0
0
0
0
0
0
9,077
430
835
20
14,531
22,419
20,053
2,939
879
14,785
9,486
1,956
5,614
18,041
21,005
14,453
193
6,074
10,135
8,051
18,463
25,497
4,477
5,227
233
35,557
55,729
36,109
15,466
12,861
31,247
13,459
13,022
41,385
34,703
49,842
50,843
936
19,678
31,480
21,195
29,507
Total ..............................................................................
182,849
15,084
1,505
199,438
528,453
State
Data sources: Emissions data are from EPA’s Air Markets Program Database, https://ampd.epa.gov/ampd. In a few cases where 2017 data
are not available, the most recent available data are used instead. Budget data are from The NOX Budget Trading Program: 2008 Emission,
Compliance, and Market Analyses (July 2009) at 14, available in the docket for this action.
The second relevant current
circumstance EPA discussed was that
even with the proposed amendment,
part 75 monitoring requirements would
21 See
63 FR at 57451–52.
2017 emissions from Missouri
sources were just over 70% of the relevant portion
of the state’s budget.
23 For example, for the 11 states covered in their
entirety under both programs—Illinois, Indiana,
Kentucky, Maryland, New Jersey, New York, Ohio,
Pennsylvania, Tennessee, Virginia, and West
22 Reported
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remain in effect for most NOX SIP Call
large EGUs pursuant to other regulatory
requirements, including the Acid Rain
Program and the CSAPR trading
programs, and these large EGUs are
responsible for most of the collective
emissions of NOX SIP Call large EGUs
and large non-EGU boilers and turbines.
Virginia—EGU emissions budgets under the current
CSAPR Update seasonal NOX trading program range
from 17% to 66% of the portions of the respective
states’ NOX SIP Call statewide budgets based on
EGU emissions. Compare 40 CFR 97.810(a) (CSAPR
Update budgets) with 65 FR 11222, 11225 (Mar. 2,
2000) (EGU-based portions of NOX SIP Call
statewide budgets).
24 For example, sources responsible for over 40%
of 2008 emissions reported under the NBTP have
either ceased operation or switched from coal
combustion to gas or oil combustion since 2008. See
Post-2008 Changes to Units Reporting Under the
NOX Budget Trading Program (August 2018),
available in the docket for this action.
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Table 1 shows the portions of the
reported seasonal NOX emissions for
each state reported by units that would
continue to be subject to part 75
monitoring requirements even if the
proposed amendments are finalized and
all states choose to revise their SIPs.25
As indicated in the table, the sources
that would continue to report under part
75 account for over 90% of the overall
emissions. If a state chooses to revise its
SIP to no longer require part 75
monitoring for some sources, then under
§ 51.121(f)(1) and (i)(1)—which EPA did
not propose to amend—the SIP would
still have to include provisions
requiring all large EGUs and large nonEGU boilers and turbines subject to
control measures for purposes of the
NOX SIP Call to submit other forms of
information on their seasonal NOX
emissions sufficient to ensure
compliance with the control measures.
EPA stated the belief that in the context
of the substantial compliance margins
discussed above, and given the
continued availability of part 75
monitoring data from sources
responsible for most of the relevant
emissions, emissions data from the
remaining sources submitted pursuant
to other forms of monitoring
requirements can provide sufficient
assurance that the Rule’s overall
required emissions reductions will
continue to be achieved.
In the proposal’s discussion of
projected impacts,26 EPA stated the
expectation that the proposed
amendments, if finalized, would have
no impact on emissions or air quality
because no changes would be made to
any of the NOX SIP Call’s existing
regulatory requirements related to
statewide emissions budgets or
enforceable mass emissions limits for
large EGUs and large non-EGU boilers
and turbines.
With respect to cost impacts, EPA
expressed the expectation that, if the
proposed amendment to monitoring
requirements is finalized, at least some
states would revise their SIPs to
establish alternate monitoring
requirements and at least some sources
would experience reductions in
monitoring costs. EPA indicated that
there were approximately 310 existing
large EGUs and large non-EGU boilers
and turbines in NOX SIP Call states that
could potentially be affected by the
proposed amendment to monitoring
requirements if all affected states were
25 Although
the Acid Rain Program does not
require units to report NOX mass emissions
specifically, NOX mass emissions can be calculated
from other part 75 data that are required to be
reported.
26 83 FR at 48761–62.
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to revise their SIPs. The discussion also
indicated how many of these units used
each of the principal monitoring
methodologies allowed under part 75
according to the monitoring plans
submitted for the units. Specifically,
EPA noted that approximately 90 units
used monitoring methodologies
involving continuous emissions
monitoring systems (CEMS) to measure
both stack gas flow rate and the
concentrations of certain gases in the
effluent gas stream, approximately 140
units used methodologies involving gas
concentration CEMS but not stack gas
flow rate CEMS, and approximately 80
units used non-CEMS methodologies.
The proposal noted that it was not
possible to predict the amount of the
monitoring cost reductions that might
eventually result from finalization of the
proposed monitoring amendment
because states, not EPA, would decide
whether to revise the monitoring
requirements in their SIPs and because
EPA lacks information on the remaining
monitoring requirements that sources
would face. However, EPA qualitatively
discussed how alternate monitoring
requirements could result in reduced
costs for units currently using the
various part 75 monitoring
methodologies. For example, some units
that currently use part 75 monitoring
methodologies involving the use of
stack gas flow rate CEMS might be
allowed to discontinue use of those
CEMS, some units that currently use
part 75 monitoring methodologies
involving the use of gas concentration
CEMS might be allowed to discontinue
use of those CEMS, and some units
continuing to use one or both types of
CEMS might be allowed to perform less
extensive data reporting or less
comprehensive quality-assurance
testing. EPA expressed the expectation
that units currently using non-CEMS
methodologies under part 75 would
experience little or no reduction in
monitoring costs as a result of the
proposed monitoring amendment.
C. Other Proposed Amendments
In addition to the proposed
amendment to the NOX SIP Call’s
monitoring requirements discussed in
section II.B. of this document, EPA
proposed to make several further
amendments to the Rule’s regulatory
text at 40 CFR 51.121 and 51.122 to
remove obsolete provisions and clarify
the remaining provisions. The proposed
revisions also included updates to
several cross-references in the CSAPR
regulations at 40 CFR 52.38 that refer to
an obsolete provision of the NOX SIP
Call regulations. Although EPA
proposed to remove or modify
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numerous provisions of the NOX SIP
Call regulations,27 the proposal
explained that the additional
amendments were not intended to
substantively alter any currently
effective regulatory requirements.
Briefly, EPA proposed to:
• Rescind and remove the stayed and
superseded findings of good neighbor
obligations with respect to the 1997 8hour ozone NAAQS at § 51.121(a)(2),
remove § 51.121(q) staying the nowrescinded findings, and remove obsolete
related language in § 51.121(c)(1) and
(2);
• Clarify the expression of Phase I
and existing final emissions reduction
requirements by removing the table of
required incremental Phase II emissions
reduction amounts at § 51.121(e)(3),
adding a column of Phase I budget
amounts to the existing table of final
budget amounts in § 51.121(e)(2)(i),
revising the definitions of ‘‘Phase I SIP
submission’’ and ‘‘Phase II SIP
submission’’ at § 51.121(a)(3)(i) and (ii),
and making related revisions at
§ 51.121(b)(1) introductory text and
(b)(1)(i);
• Remove § 51.121(e)(4), which
governs the former compliance
supplement pool;
• Remove § 51.121(e)(5), which sets
forth a one-time process for revising the
emissions inventories and budgets
published as part of the original Rule;
• Remove § 51.121(g)(2)(ii), which
contains an obsolete table of baseline
emissions inventory information
originally intended to help states
prepare their required SIP revisions;
• Remove § 51.121(p) and (b)(2),
which authorize the use of the former
NBTP and other potential interstate
trading programs, respectively, as
compliance options;
• Make clarifying revisions to
§ 51.121(r)(2), which sets forth the postNBTP transition requirements;
• Remove § 51.121(d)(1), which
contains obsolete deadlines for Phase I
and Phase II SIP submissions, and
§ 51.121(d)(2), which contains obsolete
or duplicative procedural provisions
concerning the completeness and format
of SIP submissions;
• Remove or update obsolete crossreferences in the NOX SIP Call
regulations at §§ 51.121(b)(1)(i), (g)(2)(i)
and (r)(1) and (2) and 51.122(c)(1)(ii)
and in the CSAPR regulations at
27 A redline-strikeout document showing the text
of 40 CFR 51.121 and 51.122 with the amendments
adopted in this action, which include all the
proposed amendments to the NOX SIP Call
regulations with the further revisions discussed in
section IV of this document, is available in the
docket for this action.
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§ 52.38(b)(8)(ii), (b)(8)(iii)(A)(2),
(b)(9)(ii), and (b)(9)(iii)(A)(2); and
• Make clarifying editorial revisions
to § 51.121 heading, (b)(1)(ii),
(e)(2)(ii)(B) and (E), (f)(2)(i)(B), (f)(2)(ii),
(h), (i)(2),(3), and (5), (l)(1) and (2), (m),
(n), and (o).
These proposed further amendments
as well as EPA’s supporting rationales
are fully discussed in the proposal.28
The discussions in the proposal are
incorporated herein and are not
summarized further in this document
except as necessary to respond to
comments in sections III.B. through III.D
of this document.
D. Public Comment Process
In the proposal, EPA requested
comment on the proposed amendment
to revise the provision at 40 CFR
51.121(i)(4) to allow states to establish
monitoring requirements for large EGUs
and large non-EGU boilers and turbines
in their SIPs other than part 75
monitoring requirements. With respect
to the remaining proposed amendments,
EPA made clear that the amendments
were not intended to substantively alter
existing regulatory requirements and
consequently requested comment solely
on whether the provisions proposed for
removal as obsolete in fact are obsolete
and on whether the proposed
clarifications in fact achieve
clarification. EPA did not reopen for
comment any provisions of the existing
NOX SIP Call regulations except the
provisions that were proposed to be
amended as discussed in the proposal 29
and did not reopen or request comment
on amending any other existing
regulations. The proposal also provided
information on how to request a public
hearing. No public hearing was held
because none was requested, and the
public comment period closed on
October 29, 2018.
III. Response to Comments
Commenters on the proposal included
states, source owners, industry
28 83
FR at 48758–61.
findings and requirements that EPA
did not propose to substantively amend include
(but are not limited to) the findings of good
neighbor obligations with respect to the 1979
1-hour ozone NAAQS, the requirements for SIPs to
contain control measures addressing these
obligations, the final NOX budgets, the requirement
for enforceable limits on seasonal NOX mass
emissions for large EGUs and large non-EGU boilers
and turbines where states have included control
measures for these types of sources in their SIPs,
the requirement for states to adopt replacement
control measures into their SIPs to achieve the
emissions reductions formerly projected to be
achieved by the NBTP, and the general
requirements for enforceability and for monitoring
of the status of compliance with the control
measures adopted.
29 Regulatory
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associations, environmental
organizations, and persons commenting
as individuals. The comments are
available in the docket for this action. In
this section, EPA summarizes and
responds to the comments regarding the
proposed amendments, including
requests for clarification. Sections III.A
through III.D. address the proposed
amendments to the NOX SIP Call’s
provisions concerning emissions
monitoring requirements, emissions
reduction requirements, the baseline
emissions inventory table, and postNBTP transition requirements,
respectively.
With respect to the proposed
amendments not addressed in sections
III.A. through III.D., EPA received no
adverse comments or requests for
clarification. One commenter stated no
objection to or supported most of these
amendments individually, and
additional commenters expressed
general support for all the amendments
removing obsolete provisions or all the
amendments clarifying the remaining
regulations. EPA thanks the commenters
for these comments, which are not
discussed further in this document.
Some commenters also submitted
comments on topics other than the NOX
SIP Call regulations. These comments
are outside the scope of the proposal
and are not discussed further in this
document.
A. Emissions Monitoring Requirements
Comment: Most commenters
supported the proposed amendment to
the NOX SIP Call’s monitoring
requirements. These commenters
generally expressed the view that
requirements to perform part 75
monitoring solely for purposes of the
NOX SIP Call are no longer necessary to
ensure states’ compliance with the
Rule’s emissions reduction
requirements. Most of these commenters
also generally indicated that allowing
the use of alternate monitoring
requirements would result in reduced
monitoring costs for some sources.
Response: EPA agrees with these
comments’ support for the proposed
amendment to the Rule’s monitoring
requirements.
Comment: Some commenters, while
generally supporting the proposed
monitoring amendment, stated that EPA
should also make further amendments
to the NOX SIP Call’s monitoring
provisions to authorize particular forms
of alternate monitoring requirements.
Specifically, two commenters requested
an amendment providing that, if a
demonstration is made that emissions
from a state’s large non-EGU boilers and
turbines ‘‘will not exceed the
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[emissions] budget . . . established’’ for
such sources, then those sources would
be allowed to determine reported NOX
emissions according to a methodology
based on the use of emission factors—
that is, factors approved as estimates of
the quantity of NOX emitted per unit of
fuel combusted—and information on
fuel consumption. Another commenter
requested an amendment to authorize
methodologies involving the use of gas
concentration CEMS installed and
operated in accordance with the
provisions of 40 CFR part 60 in addition
to the monitoring methodology
preferred by the two previously
mentioned commenters. Another
commenter, without expressing a
preference for a particular form of
alternate monitoring requirements,
recommended that EPA issue model
rule language for alternate monitoring
requirements that would be approvable
in SIP revisions.
Most commenters supporting the
proposed monitoring amendment did
not request that EPA make further
amendments to identify particular
permissible alternate monitoring
requirements or issue model rule
language. One of these commenters
specifically recommended that EPA
defer to states’ choices regarding
alternate monitoring requirements to the
maximum extent allowable.
Response: EPA disagrees with the
comments seeking further amendments
to identify specifically permissible
alternate monitoring requirements or
issue model rule language and agrees
with the comments supporting the
monitoring amendment as proposed
without such further amendments.
Upon finalization of the proposed
amendment to the NOX SIP Call
regulations making the inclusion of part
75 monitoring requirements in SIPs
optional rather than mandatory, states
would have the flexibility to establish
their own preferred forms of monitoring
requirements for NOX SIP Call purposes,
subject to the existing general
provisions at § 51.121(i) introductory
text and (i)(1) concerning SIP
monitoring requirements—provisions
that EPA did not propose to amend.
Under the general monitoring
provisions, which closely parallel the
longstanding provisions concerning SIP
source surveillance requirements at 40
CFR 51.210 and 51.211, each SIP
revision must provide for monitoring
the status of compliance with any
control measures adopted to achieve the
NOX SIP Call’s emissions reduction
requirements, and the monitoring must
be sufficient to determine whether
sources are in compliance with the
control measures. Nothing in these
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general monitoring provisions precludes
the commenters’ preferred forms of
monitoring requirements where such
requirements are shown to be sufficient
to meet these criteria. Thus, the further
amendments suggested by the
commenters are unnecessary, because
where a state agrees that the
commenters’ preferred forms of
monitoring requirements are
appropriate, the state may obtain
approval of those requirements simply
by submitting a SIP revision that adopts
those requirements and demonstrating
that the revision satisfies the general
monitoring provisions and does not
conflict with any other applicable CAA
requirement.30 For the same reasons that
EPA considers it reasonable under
current circumstances to make part 75
monitoring optional rather than
mandatory for NOX SIP Call purposes
(as discussed in section II.B. of this
document), EPA also considers it
reasonable to defer to states’ choices
regarding alternate monitoring
requirements for NOX SIP Call purposes
to the extent consistent with the general
monitoring provisions at § 51.121(i)
introductory text and (i)(1).
In addition, EPA believes that
inclusion of the suggested further
amendments would not be particularly
useful in providing certainty of the
approvability of any specific state
regulation implementing the
commenters’ preferred forms of
monitoring requirements.
Notwithstanding any endorsement of a
particular overall monitoring approach
that EPA might include in the
regulations, given the need to satisfy the
NOX SIP Call’s general monitoring
provisions just discussed, EPA would
still need to individually review the
specific alternate monitoring
requirements in each SIP revision to
support a determination that the
monitoring is sufficient to ensure
compliance with the NOX SIP Call’s
emissions reduction requirements. For
example, EPA would need to consider
whether each regulation contains
adequate provisions to avoid gaps in
required monitoring and whether a
regulation following an emission factor
approach employs emission factors that
are designed to avoid any bias toward
understatement of emissions. Approval
of each SIP revision would also be
subject to notice-and-comment
30 EPA notes that for purposes of demonstrating
that the replacement monitoring requirements
would be sufficient to ensure compliance with the
emissions requirements, a state generally would be
able to cite the same types of data that EPA
presented in the proposal to support the proposed
amendment to the NOX SIP Call’s monitoring
requirements.
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procedures. While in theory EPA could
provide greater certainty of the
approvability of certain forms of
alternate monitoring requirements by
issuing model rule language, EPA
believes issuance of such language in
this instance is neither necessary nor
consistent with EPA’s general intent of
deferring to states’ preferences regarding
alternate monitoring requirements for
NOX SIP Call purposes.
Comment: One commenter stated that
amending the NOX SIP Call regulations
to allow sources that currently monitor
using CEMS to switch to alternate
monitoring methods would be
inconsistent with CAA section 110(l), 42
U.S.C. 7410(l), known as the ‘‘antibacksliding’’ provision, which prohibits
EPA from approving any
implementation plan revision that
would interfere with any applicable
requirement under the CAA. The
commenter stated that effective and
accurate emissions monitoring is
needed to protect against backsliding
and that allowing sources to use
monitoring approaches less effective
than CEMS monitoring would be
inconsistent with section 110(l) because
it would deprive communities and
regulators of timely or reliable
emissions information needed to
identify possible violations of emissions
standards and to facilitate enforcement
actions.
Response: EPA disagrees with this
comment. As a preliminary matter, EPA
notes that CAA section 110(l) applies to
EPA actions determining to approve
implementation plan revisions, not
other EPA actions that might affect the
matters that are required to be addressed
through such implementation plan
revisions. Thus, this action to amend
the NOX SIP Call regulations is not
subject to section 110(l). At the same
time, no Agency-issued regulation can
negate or otherwise modify the
Congressionally-established prohibition
in section 110(l) against approval of
implementation plan revisions that
would permit backsliding. For this
reason, notwithstanding the content of
any amendment to the NOX SIP Call
regulations finalized in this action,
approval of any SIP submissions made
in response to such an amendment will
necessarily still be subject to antibacksliding requirements under section
110(l).
Substantively, the proposed
amendment to monitoring requirements
is not inconsistent with the purpose of
section 110(l) because there is no reason
to expect that a SIP submission seeking
only to revise monitoring requirements
for NOX SIP Call purposes would result
in increased emissions or otherwise
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interfere with any other CAA
requirement, in light of the criteria for
approval of such a SIP submission. That
is, the amendments proposed for this
action make no changes to the NOX SIP
Call’s existing regulatory requirements
related to statewide emissions budgets
or enforceable mass emissions limits for
large EGUs and large non-EGU boilers
and turbines. As discussed in response
to a previous comment, under
§ 51.121(i) introductory text and (i)(1)
any alternate monitoring requirements
approved into a SIP for NOX SIP Call
purposes must be sufficient to
determine whether the state’s sources
are in compliance with the control
measures adopted to meet the Rule’s
emissions requirements. Given
continued implementation of SIP
requirements governing the unchanged
amounts of allowable emissions,
accompanied by replacement
monitoring requirements sufficient to
ensure compliance with the unchanged
emissions requirements, a SIP revision
adopted in response to the proposed
amendments would not be expected to
result in increases in emissions that
could interfere with other statutory or
regulatory requirements.
The commenter’s suggestion that
CEMS emissions data provided
pursuant to NOX SIP Call requirements
is necessary to provide emissions
information to identify violations of and
enforce other emissions standards is
outside the scope of the proposal. The
NOX SIP Call’s monitoring requirements
were promulgated to provide
monitoring information sufficient to
ensure compliance with the control
measures adopted to achieve the Rule’s
emissions reduction requirements.31
Monitoring requirements to ensure
compliance with other emissions
requirements are generally established
as part of the regulations that establish
each specific emissions requirement or
through monitoring-focused regulations
such as the source surveillance
regulations at 40 CFR part 51, subpart K,
or the compliance assurance monitoring
regulations at 40 CFR part 64. Any
concerns about the adequacy of the
monitoring requirements established
under other regulations would be
properly raised as comments in the
actions promulgating those regulations
or as requests for new rulemaking, not
as comments on this action addressing
monitoring requirements under the NOX
SIP Call regulations. In the proposal for
this action, EPA did not propose to alter
any monitoring requirements under any
31 See
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regulations other than the NOX SIP Call
regulations.
Comment: One commenter stated that
amending the NOX SIP Call regulations
to allow sources that currently monitor
using CEMS to switch to alternate
monitoring methods would be
inconsistent with CAA section 504(b),
42 U.S.C. 7661c(b), which authorizes
EPA to prescribe monitoring
requirements for the operating permits
that certain sources are required to
obtain pursuant to CAA title V. The
commenter cited a portion of the
provision stating that ‘‘continuous
emissions monitoring need not be
required if alternative methods are
available that provide sufficiently
reliable and timely information for
determining compliance’’ and stated
that because CEMS monitoring is the
most reliable and timely monitoring
method for determining compliance
with NOX emissions limits, it would be
unreasonable and inconsistent with
section 504(b) for EPA to allow sources
which already have CEMS equipment
installed to use less reliable and timely
monitoring approaches.
Response: EPA disagrees with this
comment. While CAA section 504(b)
provides EPA with authority to
prescribe monitoring requirements for
title V operating permits, it does not
require EPA to exercise that authority in
any particular situation and hence does
not impose any statutory requirement
applicable to this action. Further, even
accepting for purposes of argument the
comment’s premise that the conditions
that would apply to an exercise of EPA’s
authority under section 504(b) should
also apply to EPA’s establishment of
monitoring requirements for NOX SIP
Call purposes, the proposed monitoring
amendment is neither unreasonable nor
inconsistent with those conditions. As
noted in the comment, section 504(b)
explicitly provides that EPA need not
exercise its authority under the section
so as to require CEMS in circumstances
where alternate monitoring methods
sufficient to determine compliance are
available. In the proposal, EPA
presented recent emissions data and
expressed the view that, given the
current substantial margins by which
the sets of large EGUs and large nonEGU boilers and turbines in all NOX SIP
Call states are complying with the
relevant portions of the statewide
emissions budgets as well as the fact
that most of the relevant emissions will
continue to be monitored according to
part 75 under other programs,
monitoring of the remaining emissions
using non-part 75 approaches can now
provide sufficient assurance that the
Rule’s required emissions reductions
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will continue to be achieved.32 The
commenter does not challenge EPA’s
assessment. EPA’s rationale for
proposing the amendment closely
parallels and is fully consistent with the
conditions set forth in section 504(b) for
the possible establishment of
monitoring requirements other than
CEMS monitoring requirements.
Moreover, neither of the commenter’s
stated reasons for suggesting that it
would be unreasonable or inconsistent
with section 504(b) for EPA to allow the
use of non-CEMS approaches is
compelling. The first stated reason—that
CEMS-based monitoring approaches
would provide the most reliable and
timely information for determining
compliance with NOX emission limits—
is itself inconsistent with the statutory
text which, as just discussed, explicitly
indicates the potential acceptability of
non-CEMS monitoring approaches that
provide sufficient reliability and
timeliness of information for
determining compliance. The second
stated reason—that the sources in
question already have CEMS equipment
installed—is incorrect for some of the
sources potentially affected by the
monitoring amendment and materially
incomplete for all of them. The set of
large EGUs and large non-EGU boilers
and turbines subject to the NOX SIP
Call’s ongoing requirements discussed
in this document includes both existing
and new units. Some new units that
would need to install CEMS equipment
if required to monitor under part 75
might not need to install some or all of
that CEMS equipment if part 75
monitoring were not required for NOX
SIP Call purposes. Further, as discussed
in the proposal, even for a source that
already has CEMS equipment installed,
the source’s ongoing operating costs to
monitor using the installed CEMS
equipment could be higher than the
source’s ongoing operating costs if the
source were to switch to a non-CEMS
monitoring approach.33 Besides the
factor of whether non-CEMS monitoring
approaches that provide sufficiently
reliable and timely information for
determining compliance are available,
the text of section 504(b) does not
specify or limit other factors that EPA
may consider when applying its
authority under the section. Thus, it is
neither unreasonable nor inconsistent
with section 504(b) for EPA to consider
32 83
FR at 48757–58.
FR at 48761. Several commenters also
discussed the significance of the operating and
maintenance costs that are incurred to comply with
monitoring requirements. See comments of North
Carolina, Alcoa, Citizens Energy, Council of
Industrial Boiler Owners, and Virginia
Manufacturers Association.
33 83
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the likelihood that some sources would
incur lower monitoring costs if allowed
to use non-CEMS monitoring
approaches for NOX SIP Call purposes.
Comment: One commenter
summarized several provisions of CAA
section 110(a), 42 U.S.C. 7410(a),
concluding with the interpretation that
‘‘a bedrock requirement for any
implementation plan is for emissions
monitoring requisite to ensure
attainment and maintenance of the
NAAQS.’’ The commenter further stated
that the current network of ambient air
quality monitors is ‘‘not robust enough
to adequately assess levels of [ozone and
particulate matter] in ambient air’’ and
cited a study concerning satellite-based
measurements of ambient air quality.
The commenter concluded that ‘‘[g]iven
this level of under-assessment of
pollution problems and dramatic[ ]
undercounting of nonattainment
issues,’’ the proposed amendment to
allow states to establish alternate
emissions monitoring requirements ‘‘is
wholly inconsistent with the Clean Air
Act’s requirements.’’
Response: EPA disagrees that the
proposed amendment to the NOX SIP
Call regulations would be inconsistent
with the statutory requirements under
CAA section 110(a). The comment
conflates the statutory provision
authorizing EPA to prescribe emissions
monitoring requirements for individual
sources under CAA section 110(a)(2)(F)
with the general requirement for
ambient air quality monitoring under
CAA section 110(a)(2)(B). Contrary to
the commenter’s interpretation of CAA
section 110(a), the data used to
determine whether air quality in a given
area meets the ozone or PM2.5 NAAQS
are the data obtained through the
ambient air quality monitoring network,
not the data obtained through source
emissions monitoring. Similarly,
assessments of whether the emission
control measures in effect are
collectively sufficient to ensure
attainment and maintenance of those
NAAQS are made using monitored
ambient air quality data or projected
ambient air quality data (which
necessarily reflect projected, not
monitored, source emissions data). The
amendments proposed for this action
would not alter any regulatory
requirements concerning ambient air
quality monitoring, and comments on
this topic are outside the scope of the
proposal.
As discussed in response to a
previous comment, the originally
intended purpose served by the
emissions monitoring requirements
under the NOX SIP Call was to ensure
compliance with the control measures
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adopted to achieve the Rule’s emissions
reduction requirements, not to ensure
attainment and maintenance of the
NAAQS. Amendment of the NOX SIP
Call as proposed for this action would
not alter the provisions at § 51.121(i)
introductory text and (i)(1) that set forth
the ongoing general requirement for
SIPs to include emissions monitoring
sufficient for this purpose. The
amendment would simply expand the
options available to states for addressing
the ongoing general requirement by
eliminating the additional specific
requirement at § 51.121(i)(4) for part 75
monitoring by large EGUs and large
non-EGU boilers and turbines. Like the
NOX SIP Call’s initial monitoring
requirements, the Rule’s monitoring
requirements as amended would be
fully consistent with CAA section
110(a)(2)(F), which authorizes EPA to
prescribe emissions monitoring and
reporting SIP requirements that may
include requirements for ‘‘correlation of
such [emissions] reports by the State
agency with any emission limitations or
standards’’ established under the CAA.
Comment: One commenter discussed
the data EPA presented in the proposal
regarding recent emissions reported by
the sources that would have been
subject to the former NBTP. While not
disputing EPA’s assessment that the
data show that the sources in all states
subject to the NOX SIP Call are currently
complying with the assigned portions of
their respective statewide budgets by
substantial margins, the commenter
asserted that EPA’s reliance on the data
to support the proposed amendment to
the Rule’s monitoring requirements is
misguided. The commenter questioned
the relevance of EPA’s assessment that
non-part 75 monitoring by the sources
not subject to part 75 monitoring
requirements under other programs
could now provide assurance of
continued compliance with the NOX SIP
Call’s emissions reduction
requirements, suggesting that EPA
should instead consider emissions
targets more stringent than the Rule’s
existing budgets.
With regard to EPA’s assessment that
the substantial majority of emissions
from large EGUs and large non-EGU
boilers and turbines would continue to
be monitored according to part 75 under
other programs, the commenter
observed that in certain states, the
emissions from the subset of large EGUs
and large non-EGU boilers and turbines
potentially affected by the proposed
monitoring amendment can be
significant relative to the emissions
from the remaining large EGUs and large
non-EGU boilers and turbines that must
continue to monitor their emissions
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under part 75 for other programs. Based
on this observation, the commenter
concluded that, in these states, allowing
the potentially affected sources to
monitor using non-CEMS methodologies
‘‘will notably degrade the overall NOX
emissions data’’ from the sets of large
EGUs and large non-EGU boilers and
turbines in the states. The commenter
also stated that the total amount of
seasonal NOX emissions from the
potentially affected sources—
approximately 15,000 tons in the 2017
ozone season—is ‘‘not trivial,’’ but is
significant in an absolute sense
regardless of its relation to the amount
of emissions from the sources that
would still be subject to part 75
monitoring requirements under other
programs. Noting that annual emissions
of 100 tons can trigger classification of
certain types of new or modified sources
as ‘‘major sources’’ under other CAA
programs, the commenter suggested that
allowing sources that collectively
produce 15,000 tons of seasonal NOX
emissions to stop using CEMS is
comparable to excusing as many as 360
major sources from requirements to use
NOX CEMS under other programs.
Response: EPA continues to believe
that the emissions data presented in the
proposal provide compelling support for
the proposed amendment to the NOX
SIP Call’s emissions monitoring
requirements. EPA disagrees with the
commenter’s suggestion that in
evaluating possible changes to
monitoring requirements under the NOX
SIP Call, rather than assessing whether
alternate forms of monitoring would be
sufficient to ensure compliance with the
Rule’s existing emissions reduction
requirements, EPA should instead
consider whether the alternate
monitoring requirements would be
sufficient to ensure compliance with
more stringent emissions targets. As
discussed in response to a previous
comment, the Rule’s monitoring
requirements were established to
provide monitoring information
sufficient to ensure compliance with the
control measures adopted to achieve the
Rule’s required emissions reductions,
and monitoring requirements to ensure
compliance with other emissions
requirements are established in other
regulations. Comments concerning
whether the Rule’s existing emissions
reductions requirements are sufficiently
stringent are outside the scope of the
proposal. EPA did not propose to
substantively alter any regulatory
requirements other than the NOX SIP
Call’s monitoring requirements.
With regard to the commenter’s
observations concerning the relative
magnitudes of the respective total
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8431
amounts of emissions from sources
potentially affected by the proposed
monitoring amendment and other
sources in certain states, EPA
acknowledges that emissions from the
potentially affected sources comprise
larger shares of the total emissions from
large EGUs and large non-EGU boilers
and turbines in some states than others
but disagrees with the suggestion that
this fact should foreclose the possibility
of allowing monitoring flexibility for
NOX SIP Call purposes. According to
the recent emissions data presented in
the proposal 34 and reproduced in Table
1 in section II.B. of this document, for
six of the states identified in the
comment—Alabama, Maryland, New
Jersey, New York, South Carolina, and
Tennessee—the total amount of
emissions from the state’s potentially
affected sources was from 19% to 30%
of the total amount of emissions from
the state’s remaining large EGUs and
large non-EGU boilers and turbines, and
for the last identified state—Delaware—
the emissions from the state’s
potentially affected sources exceeded
the emissions from the state’s remaining
large EGUs and large non-EGU boilers
and turbines. However, even accepting
the commenter’s premise that allowing
the potentially affected sources in these
states to switch from CEMS
methodologies to non-CEMS
methodologies would reduce the
accuracy of the total reported amounts
of emissions from large EGUs and large
non-EGU boilers and turbines, EPA
believes that the compliance margins in
these states are large enough that there
would still be sufficient assurance that
the NOX SIP Call’s emissions reduction
requirements would continue to be
achieved. In each of these states (as well
as all the other states subject to the NOX
SIP Call), the emissions data in Table 1
indicate that, assuming no increase in
the total emissions from the sources in
the state that would continue to be
subject to part 75 monitoring under
other programs, the total emissions from
the state’s potentially affected sources
could increase at least eightfold without
causing the total emissions from the
state’s large EGUs and large non-EGU
boilers and turbines to exceed the
relevant portion of the statewide
emissions budget.35 Thus, again
34 See
83 FR at 48758 (Table 1).
recent compliance margins for the
individual NOX SIP Call states indicated by the data
in Table 1 range from 8.6 times to over 300 times
the total reported emissions from the respective
states’ sets of potentially affected sources. For
example, for Alabama, the data in Table 1 indicate
a compliance margin of 16,420 tons (25,497¥9,077
= 16,420), which is 8.6 times the reported emissions
35 The
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assuming no increase in the total
emissions from the sources in the state
that would continue to be subject to part
75 monitoring under other programs,
even if the total reported emissions data
for the set of potentially affected sources
in a state in some future ozone season
were to understate the true emissions
data because of less accurate
measurements made using non-CEMS
methodologies, in order for the total
reported emissions data to incorrectly
indicate compliance for the state when
the true emissions data would indicate
non-compliance, the cumulative
measurement errors causing
understatement of the true data—that is,
the differences between the reported
emissions data values and the true
emissions data values for each source—
would have to be several times larger
than the reported data values.36 The
commenter does not suggest, and EPA
does not believe, that the accuracy of
non-CEMS monitoring approaches
would be so poor as to allow such a
scenario to occur. Moreover, if the
commenter believes that the specific
alternate monitoring approaches
included in a particular state’s SIP
revision submitted for EPA’s approval
would provide insufficiently accurate
data to ensure continued compliance
with the control measures adopted in
the state’s SIP for NOX SIP Call
purposes, the notice-and-comment
process for approval of the SIP revision
would provide an opportunity for the
commenter to raise that concern.
With regard to the commenter’s
observations concerning the significance
of the total seasonal NOX emissions
from the potentially affected sources in
an absolute sense, EPA agrees that a
15,000-ton quantity of seasonal NOX
emissions is ‘‘not [a] trivial’’ amount but
disagrees with the suggestion that this
fact should foreclose the possibility of
allowing monitoring flexibility for NOX
SIP Call purposes. The proposed
amendments would not alter any of the
Rule’s regulatory requirements
concerning permissible amounts of
emissions and would not eliminate the
requirement for SIPs to provide for
monitoring of the emissions from all
large EGUs and large non-EGU boilers
and turbines sufficient to ensure
from the state’s potentially affected sources (16,420
÷ 1,911 = 8.6).
36 For illustrative purposes, this example assumes
both that the collective emissions from potentially
affected sources in a state would increase by the
amount necessary to cause non-compliance for the
state and that the alternate monitoring
methodologies would fail to register the increase in
emissions. EPA does not believe these assumptions
have a reasonable basis and is using them only to
respond to the commenter’s concerns regarding
accuracy.
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continued compliance with the Rule’s
emissions reduction requirements. Nor
does EPA agree that allowing non-CEMS
monitoring approaches to be used for
purposes of demonstrating compliance
with control measures adopted under
the NOX SIP Call is comparable to
excusing major sources from
requirements to monitor using CEMS for
other purposes. The amendments
proposed for this action are based on
EPA’s assessment, specific to this
action, that under current circumstances
monitoring information from some
sources other than part 75 monitoring
information can now provide sufficient
assurance that the NOX SIP Call’s
required emissions reductions will
continue to be achieved. Where any
source is required to monitor using
CEMS for another purpose under
regulations other than the NOX SIP Call
regulations, the amendments proposed
for this action would not affect those
requirements.
Comment: One commenter contended
that allowing alternate monitoring
requirements will lead to increased
emissions. The commenter observed
that EPA did not know which specific
sources might ultimately be allowed to
use alternate monitoring methods.
According to the commenter, EPA had
suggested in the proposal that the
potential for increases in pollution
resulting from alternate monitoring
requirements is merely uncertain,
because EPA would not itself relax the
requirements but would leave that
decision to the states, and the
commenter stated it is arbitrary and
capricious for EPA to rely on such a
claim of uncertainty to avoid assessing
the impacts of increased pollution. The
commenter contended that EPA had
suggested in the proposal that
‘‘systemwide NOX emissions are low
enough that if there are increases in
pollution attainment and maintenance
[of the NAAQS] might not be
threatened.’’ The commenter also
discussed ozone pollution and the
harms it causes to human health and the
environment, citing several EPA
documents.
Response: EPA does not dispute the
commenter’s summary of the harms
caused by ozone pollution or the correct
observation that EPA does not know
which specific sources might ultimately
be allowed to use alternate monitoring
methods (because states, not EPA, will
decide whether to revise their SIPs).
Otherwise, EPA disagrees with these
comments. Relative to part 75
monitoring approaches, non-part 75
monitoring approaches may be expected
to provide less detailed monitoring data
and require less rigorous quality
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assurance, with a consequently greater
possibility that the total NOX emissions
amount reported by a source for a given
ozone season might understate or
overstate the source’s actual total
emissions for that ozone season to some
degree. However, there is no reason to
expect any approved non-part 75
monitoring methodology either to be
systematically biased toward
understatement of emissions or to create
any incentive leading to increased
emissions. EPA was clear in the
proposal that no changes to emissions or
air quality are expected because no
changes are being made to the NOX SIP
Call’s emissions requirements.37 The
commenter effectively equates allowing
alternate monitoring methods with
relaxing emissions requirements,
providing no rationale or evidence to
support the contention that in the
absence of any change in either
emissions requirements or the general
requirement to monitor emissions,
possible changes in just the allowed
methods for emissions monitoring
under the NOX SIP Call will lead to
increased emissions. EPA continues to
believe it is reasonable to assume that
under current circumstances where
sources are already complying with the
NOX SIP Call’s emissions requirements
by substantial margins, substitution of
one monitoring method for another
monitoring method, in the absence of
any change in the Rule’s emissions
requirements, will not cause sources to
change their behavior in a way that
would affect emissions levels.
Moreover, in the event that a particular
state’s SIP submission were to include
a poorly designed alternate monitoring
requirement that could lead to
systematic understatement of emissions,
the SIP approval process—including
notice-and-comment procedures—
would provide a further safeguard
against the possibility of alternate
monitoring requirements insufficient to
ensure compliance with the Rule’s
emissions requirements. The commenter
appears to incorrectly assume that the
amendment in this action would by
itself end all EPA oversight of
monitoring requirements for NOX SIP
Call purposes and fails to acknowledge
the additional safeguard afforded by the
SIP approval process.
The commenter’s claims regarding
suggestions that EPA purportedly made
about the supposed possibility of
increased emissions misrepresent the
proposal. Contrary to the comments,
nowhere in the proposal did EPA
indicate ‘‘uncertainty’’ as to whether the
proposed amendments would lead to
37 83
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increased pollution. Rather, as just
discussed, EPA explicitly stated that the
proposed amendments are expected to
have no impact on emissions or air
quality. The fact that states, rather than
EPA, will decide whether to revise their
SIPs to establish alternate monitoring
requirements was cited in the proposal
as a basis for uncertainty with regard to
the potential amount of reductions in
monitoring costs, not as a basis for
uncertainty with regard to supposed
potential increases in emissions.38
Likewise, nowhere in the proposal did
EPA make any suggestion regarding the
relationship of supposed potential
increases in emissions to the likelihood
of attainment or maintenance of any
NAAQS. Rather, as an illustration of the
magnitude of states’ recent margins of
compliance with the NOX SIP Call’s
emissions reduction requirements, EPA
stated only that such compliance would
continue to be achieved even if
emissions were to increase substantially
from current levels, and then proceeded
to explain why such increases in
emissions in fact are unlikely to occur.39
Comment: One commenter suggested
that the proposal did not address
relevant differences among the states
and source types that could be affected
by the proposed monitoring
amendment. The commenter stated that
the proposal failed to identify which
sources affected under the NOX SIP Call
do not participate in any CSAPR trading
program. Noting that several NOX SIP
Call states are outside the region
covered by the various CSAPR trading
programs, the commenter asserted that
EPA had failed to explain ‘‘why sources
in some areas should be allowed to
monitor less and pollute more,’’ and
that ‘‘EPA is thus effectively proposing
to end continuous NOX monitoring for
an entire geographic area without
discussing the ensuing implications.’’
Noting that the NOX SIP Call applies to
both EGUs and non-EGUs while the
CSAPR trading programs generally
apply only to EGUs, the commenter
further asserted that EPA did not
‘‘coherently address the distinction
between the types of sources’’ (emphasis
in original) covered by the NOX SIP Call
and the CSAPR trading programs.
Repeating the contention that allowing
alternate monitoring methods will lead
to increased emissions, the commenter
suggested that EPA should have
evaluated the impacts on regional ozone
transport problems of allowing alternate
monitoring methods for some states and
source types but not others.
38 83
39 83
FR at 48761.
FR at 48757 & nn.38–39.
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Response: EPA disagrees with these
comments. Contrary to the commenter’s
suggestion, the proposal explicitly
discussed differences among NOX SIP
Call states concerning whether each
state’s EGUs are covered by a CSAPR
trading program, noting that EGUs in
Connecticut, Delaware, Massachusetts,
Rhode Island, and the District of
Columbia do not participate in any
CSAPR trading programs.40 Likewise,
the commenter’s assertion that the
proposed monitoring amendment would
‘‘end continuous NOX monitoring for an
entire geographic region’’ is directly
contradicted by information in the
proposal: First, by the explanation that
most of the EGUs in the five non-CSAPR
states will remain subject to part 75
monitoring requirements under the Acid
Rain Program; 41 second, by the
explanation that most of the emissions
from the set of large EGUs and large
non-EGU boilers and turbines affected
under the NOX SIP Call come from large
EGUs that would continue to monitor
their emissions according to part 75
under either the Acid Rain Program or
a CSAPR trading program; 42 and third,
by the data showing quantitatively that
out of the total set of sources subject to
the NOX SIP Call in the five non-CSAPR
states, the subset of sources that would
continue to be subject to part 75
monitoring requirements under other
programs has produced most of the
recent emissions.43
Contrary to the commenter’s assertion
that the proposal failed to address the
distinction between EGUs and nonEGUs, the proposal explicitly discussed
the fact that unlike most EGUs, most
non-EGUs affected under the NOX SIP
Call do not participate in a CSAPR
trading program or face part 75
monitoring requirements under other
programs.44 The proposal also explicitly
noted that although some of the sources
potentially affected by the proposed
monitoring amendment are large EGUs
not subject to the Acid Rain Program or
a CSAPR trading program, most of the
potentially affected sources are large
non-EGU boilers and turbines.45 The
proposal presented recent state-specific
40 83 FR at 48756 & nn.26–27. EPA notes that
there are currently no large EGUs in the District of
Columbia.
41 83 FR at 48756 & n.27.
42 83 FR at 48758 & n.40.
43 See 83 FR at 48758 (Table 1) (also reproduced
as Table 1 in section II.B. of this document). The
sum of the emissions shown in Table 1 for the
sources that would continue to be subject to part
75 monitoring in the five non-CSAPR states is 1,631
tons. The sum of the emissions shown for the
sources potentially affected by the proposed
amendment in these states is 654 tons.
44 83 FR at 48751–52, 48755–56 & n.23.
45 83 FR at 48752.
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8433
emissions data broken out according to
whether the emissions came from
sources that would continue to be
subject to part 75 requirements under
other programs or instead came from
sources potentially affected by the
proposed amendment.46 The proposal
did not further break out the total recent
emissions from potentially affected
sources into the respective portions
from EGUs and non-EGUs because EPA
did not see any relevance in whether the
NOX emissions that might be monitored
for NOX SIP Call purposes using
methods other than part 75 come from
EGUs or from non-EGUs. The
commenter has not suggested any
reasons why further subcategorization of
the emissions information provided in
the proposal might be relevant to an
evaluation of the proposed monitoring
amendment. Nevertheless, to address
the comment, EPA notes that large nonEGU boilers and turbines were
collectively responsible for 14,860 tons
of the total 15,084 tons of seasonal NOX
emissions shown in Table 1 for all units
potentially affected by the proposed
monitoring amendment, or 98.5% of the
total, while large EGUs not required to
monitor according to part 75 under the
Acid Rain Program or a CSAPR trading
program were collectively responsible
for 224 tons, or 1.5% of the total.47
The comments suggesting that EPA
should have evaluated the impacts on
regional ozone transport problems of
allowing alternate monitoring methods
for some states and source types but not
others reflect the commenter’s
unsupported assumption that allowing
alternate monitoring methods is
equivalent to relaxing emissions
requirements. EPA has already rebutted
the commenter’s assumption in
response to a previous comment.
Because there is no reason to expect any
increase in emissions from the proposed
monitoring amendment, there is no
reason to evaluate any impacts on
regional ozone transport problems of
any supposed potential increase in
emissions.
Comment: One commenter stated that
EPA has not ‘‘identif[ied] any need to
weaken emission monitoring
requirements’’ (emphasis in original),
has not identified specific complaints
46 83
FR at 48758 (Table 1).
potentially affected large EGUs are
combustion turbines located in non-CSAPR states
that serve generators larger than 25 MW and are
exempt from the Acid Rain Program because they
commenced commercial operation before November
15, 1990, and meet the definition of a ‘‘simple
combustion turbine’’ in 40 CFR 72.2. There are
currently 31 such units, all located in Connecticut,
Delaware, or Massachusetts. The individual units
are identified in the spreadsheet referenced in note
54 infra, available in the docket for this action.
47 The
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from sources regarding the costs of
operating monitoring equipment that
has already been installed, and has not
sufficiently discussed possible
monitoring methodologies or compared
their costs. The commenter also stated
that allowing alternate monitoring
requirements would unfairly advantage
new sources over existing sources
because the new sources, unlike existing
sources, would be allowed ‘‘to both use
cheaper, less effective monitoring
systems and to get away with emitting
more NOX’’ than existing sources.
Response: EPA disagrees with these
comments. In the proposal, EPA
discussed the opportunity to reduce
monitoring costs under the NOX SIP
Call for some sources while continuing
to ensure compliance with the Rule’s
emissions reduction requirements.48 By
definition, a regulatory initiative that
reduces overall costs while holding
overall benefits constant produces
positive net benefits. The commenter
has not offered any legal basis or policy
rationale supporting the notion that EPA
should decline to pursue a regulatory
initiative intended to produce positive
net benefits simply because the net
benefits happen to take the form of a
reduction in sources’ monitoring costs.
The commenter’s suggestion that EPA
has presented insufficient evidence to
support the existence of monitoring cost
reduction opportunities is belied by the
information in the proposal, which
described the various monitoring
methodologies available under part 75
and qualitatively discussed the cost
reductions that could be available if the
sources using each of those
methodologies were to switch to
alternate monitoring methodologies.49
Moreover, all of the comments received
on the proposal from source owners and
industry associations, as well as most of
the comments received from states,
agreed that the proposed amendment
would make monitoring cost reductions
possible for sources in states that choose
to revise their SIPs.50 The commenter
asserted that sources had no reason to
complain of monitoring costs because
they had already installed the necessary
CEMS equipment, but as EPA explained
in response to a previous comment, this
assessment is incorrect as to new
sources, because new sources would not
yet have installed the CEMS equipment,
48 83
FR at 48761–62.
FR at 48761 & nn.53–54.
50 See comments from Indiana, Michigan, North
Carolina, Ohio, South Carolina, Alcoa, Citizens
Energy, Council of Industrial Boiler Owners, Illinois
Environmental Regulatory Group, Ohio
Manufacturers Association, Virginia Manufacturers
Association, and West Virginia Manufacturers
Association, available in the docket for this action.
49 83
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and materially incomplete as to all
sources, because CEMS-related costs
include not only equipment installation
costs but also ongoing operating costs.
EPA sees no reason why, in the absence
of any contrary information, more
evidence is needed to demonstrate the
existence of opportunities for
monitoring cost reductions than was
already presented in the proposal, as
further supported by comments.
With respect to quantification of the
potential reductions in monitoring
costs, EPA explained in the proposal
that because states, not EPA, would
decide whether to revise the monitoring
requirements in their SIPs and because
EPA lacked complete information on the
remaining monitoring requirements that
the sources would face, it was not
possible to predict the amount of
monitoring cost reductions that could
occur following finalization of the
proposed monitoring amendment.51
EPA still lacks information on the
remaining monitoring requirements that
sources will face but received comments
indicating some likelihood that at least
six states would revise their SIPs
following finalization of the proposed
monitoring amendment. The states’
comments make it possible to estimate
a potential range of monitoring cost
reductions that could occur if these
states were to adopt some of the changes
in monitoring requirements that EPA
considers most likely. EPA’s estimates
are provided in section V of this
document.
Finally, the commenter’s suggestion
that the proposed monitoring
amendment would unfairly advantage
new sources over existing sources lacks
any support. The NOX SIP Call’s current
requirements for part 75 monitoring
apply to both existing and new sources,
and upon finalization of the proposed
monitoring amendment, states’
flexibility to establish alternate
monitoring requirements will likewise
apply to both existing and new sources.
Commenters have not suggested any
reason to believe that states will choose
to exercise this new flexibility in a
manner that discriminates among their
existing and new sources in terms of the
prospective monitoring requirements
established in their SIPs, and if the
commenter is suggesting that EPA
should require new sources to incur
certain capital expenditures in the
future simply because existing sources
incurred those same capital
expenditures in the past, EPA disagrees.
Further, the commenter’s assertion that
the monitoring amendment will allow
new sources to ‘‘get away with emitting
51 83
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Frm 00026
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more NOX’’ again rests on the
commenter’s unsupported assumption
that allowing alternate monitoring
methods is equivalent to relaxing
emissions requirements. EPA has
already rebutted the commenter’s
assumption in response to a previous
comment. EPA also reiterates that the
proposed monitoring amendment would
not change any other emissions or
monitoring requirements applicable to
either existing or new sources under
regulations other than the NOX SIP Call,
including requirements that may be
more stringent for new sources than
existing sources.
Comment: One commenter discussed
the superiority of CEMS methodologies
compared to non-CEMS monitoring
methodologies in terms of the timeliness
and reliability or accuracy of the
emissions data collected, particularly
with respect to NOX emissions, and
cited various EPA documents in
support. The commenter stated that EPA
‘‘should be enhancing the use of CEMS
in emissions measurements’’ instead of
allowing monitoring flexibility. In
particular, the commenter stated that
the continued use of CEMS is necessary
to ensure compliance with the
Chesapeake Bay Total Maximum Daily
Load (TMDL) for nitrogen established
under the Clean Water Act. In support
of this comment, the commenter
summarized the role of atmospheric
deposition as a contributor of nitrogen
to Chesapeake Bay, citing studies by
EPA and others. The commenter also
noted that the plan for achieving the
TMDL includes commitments from EPA
to reduce atmospheric deposition
through implementation of rules
addressing CAA requirements,
including the NOX SIP Call, and stated
that EPA must maintain or strengthen
air regulations in order to meet its
commitments. The commenter stated
that without accurate monitoring, states
and EPA ‘‘will not know whether the
reductions necessary to attain the Bay
TMDL goals by 2025 are actually being
met.’’
Response: EPA agrees that CEMS
methodologies are often the preferred
monitoring approaches for ensuring
compliance with particular emissions
requirements but disagrees that the
acknowledged superiority of CEMS
methodologies for some purposes
should foreclose the possibility of
allowing monitoring flexibility for NOX
SIP Call purposes where other
monitoring methods would be sufficient
to ensure continued achievement of the
Rule’s emissions reduction
requirements. Likewise, EPA does not
dispute the commenter’s summary
regarding the Chesapeake Bay TMDL
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and EPA’s reliance on the NOX SIP
Call’s emissions reductions to reduce
atmospheric deposition contributing
nitrogen to the Bay but disagrees that
those facts suggest that compliance with
the Rule’s emissions reduction
requirements must be determined using
any particular monitoring approach. As
discussed in response to a previous
comment, the NOX SIP Call’s existing
monitoring requirements were
established to provide monitoring
information sufficient to ensure
compliance with the control measures
adopted to achieve the Rule’s required
emissions reductions, and monitoring
requirements to ensure compliance with
other emissions requirements are
established in other regulations.
Comments concerning whether the NOX
SIP Call’s existing emissions reductions
requirements are sufficiently stringent
to address other environmental
objectives, including achievement of the
Chesapeake Bay TMDL, are outside the
scope of the proposal. EPA did not
propose to substantively alter any
regulatory requirements other than the
NOX SIP Call’s monitoring
requirements.
Comment: One commenter supported
a narrower amendment to the NOX SIP
Call’s monitoring requirements than
EPA proposed. Specifically, the
commenter supported an amendment
that would allow states to eliminate the
requirements for reporting emissions
data to EPA under part 75 but would not
allow the use of substantively different
monitoring methodologies for collecting
emissions data. The commenter objected
to allowing sources that currently
monitor emissions using CEMS to use
other monitoring methodologies
because, unlike CEMS methodologies,
non-CEMS methodologies do not allow
for accurate and timely determinations
of compliance with or violations of
short-term emission limits. The
commenter also expressed the
expectation that if the proposed
amendment to emissions monitoring
requirements is finalized, some states
would be required to revise their SIPs to
establish less stringent monitoring
requirements because of provisions in
state law barring the states from
imposing requirements on sources that
exceed minimum Federal requirements.
Response: The comment expressing
concern that non-CEMS methodologies
are less useful than CEMS
methodologies for determining
compliance with emissions
requirements other than the NOX SIP
Call’s emissions requirements is outside
the scope of the proposal. As discussed
in response to a previous comment, the
NOX SIP Call’s existing monitoring
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requirements were established to
provide monitoring information
sufficient to ensure compliance with the
control measures adopted to achieve the
Rule’s required emissions reductions,
and monitoring requirements to ensure
compliance with other emissions
requirements are established in other
regulations. The NOX SIP Call does not
require states to impose short-term
emissions limits on their sources, and
EPA did not propose to substantively
alter any regulatory requirements other
than the NOX SIP Call’s monitoring
requirements.
The comment suggesting that some
NOX SIP Call states would be required
under state law to revise their SIPs if the
proposed monitoring amendment is
finalized has no bearing on this action.
EPA’s proper focus in this action is
whether the proposed amendment to
allow alternate monitoring requirements
in SIPs is appropriate under the CAA.
Questions of whether and how state law
provisions might affect the decisions of
individual states to adopt alternate
monitoring requirements allowed under
the amendment are outside EPA’s
purview.
Comment: One commenter stated that
allowing sources that currently monitor
emissions for NOX SIP Call purposes
with CEMS methodologies to instead
monitor their emissions with non-CEMS
methodologies would result in a loss of
data resolution that would make it more
difficult to understand the impacts of
the sources’ emissions on air quality in
other states. The commenter stated that,
with less detailed emissions data, it
would be more difficult for states to
work together to develop regionally
consistent approaches for addressing
good neighbor obligations with respect
to the 2015 ozone NAAQS. The
commenter also requested that EPA
identify the specific units whose
monitoring requirements could
potentially be altered by states if the
proposed monitoring amendment is
finalized, as well as the locations of the
units.
Response: EPA disagrees that
allowing the use of alternate monitoring
requirements for NOX SIP Call purposes
would materially impact the ability of
states to work together to address their
good neighbor obligations with respect
to the 2015 ozone NAAQS in a
regionally consistent manner. As
discussed in section II.B. of this
document, if the proposed amendment
is finalized, over 90% of the emissions
from the set of NOX SIP Call large EGUs
and large non-EGU boilers and turbines
would still be monitored according to
part 75 under other regulations if the
relative proportions shown for 2017 in
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8435
Table 1 continue into the future. In
addition, the potentially affected
sources in states that choose to revise
their SIPs would still need to provide
emissions monitoring information for
each ozone season sufficient for the
state to demonstrate compliance with
the Rule’s emissions reduction
requirements. The commenter has not
explained the purpose for which the
enhanced data resolution provided by
part 75 monitoring is desired. In any
event, EPA notes that projected hourly
emissions data for use in air quality
modeling could be prepared based on
the intra-year time patterns in the
extensive historical emissions data
reported by the sources for periods
while the sources have been subject to
part 75, because those data would
remain available even if hourly
emissions data are no longer reported in
the future for some of these sources. As
indicated in Table 1, the total amount of
recent seasonal NOX emissions from the
units that could potentially switch from
part 75 monitoring approaches to nonpart 75 monitoring approaches was
approximately 15,000 tons during the 5month ozone season, which by
extrapolation suggests possible annual
emissions of roughly 36,000 tons. By
comparison, the most recent National
Emissions Inventory (for 2014) indicates
that for the set of NOX SIP Call states,
the total amount of annual NOX
emissions from all types of stationary
sources—that is, not just the large EGUs
and large non-EGU boilers and turbines
currently subject to part 75 monitoring
requirements under the NOX SIP Call—
was over 2,000,000 tons, and the total
amount of annual NOX emissions from
all stationary and mobile sources was
over 5,000,000 tons.52 Thus, the NOX
SIP Call units potentially affected by the
proposed amendment appear to be
responsible for roughly 2% of the total
stationary source emissions and less
than 1% of the total stationary and
mobile source emissions from NOX SIP
Call states. Given the small percentages
of the relevant overall emissions
inventory represented by the large non52 See state_tier1_caps.xlsx, available at https://
www.epa.gov/air-emissions-inventories/airpollutant-emissions-trends-data (follow the link for
State Average Annual Emissions Trend) and in the
docket for this action. The total amount of
stationary and mobile source emissions can be
obtained from the spreadsheet by filtering column
B to exclude all states except the 21 NOX SIP Call
jurisdictions, filtering column D to exclude
‘‘prescribed fires’’ and ‘‘wildfires,’’ filtering column
E to exclude all pollutants except NOX, and then
summing the 2014 emissions inventory amounts in
column Y for all remaining line items shown. The
total amount of stationary source emissions can be
obtained in the same way after further filtering
column D to exclude ‘‘highway vehicles’’ and ‘‘offhighway.’’
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EGU boilers and turbines potentially
affected by the monitoring amendment
proposed for this action, EPA expects
that air quality modeling results and
analyses of interstate ozone transport
would not be materially affected by
differences in the intra-year patterns of
the projected hourly emissions data for
these sources.
With respect to the commenter’s
request for the identities and locations
of units potentially affected by the
proposed monitoring amendment—in
other words, large non-EGU boilers and
turbines as well as large EGUs that are
subject to the NOX SIP Call but not the
Acid Rain Program or a CSAPR trading
program—EPA notes that the requested
information is already publicly available
in the database of reported part 75
emissions data accessible through the
Agency’s website.53 The database
identifies each individual unit that has
reported according to part 75 and
provides the unit’s state, county,
latitude, and longitude. The database
also indicates the regulatory programs
for which the data have been reported,
using the code ‘‘SIPNOX’’ to indicate
where a unit has reported seasonal NOX
mass emissions data for purposes of the
NOX SIP Call but not for purposes of the
seasonal NOX trading programs
established under CAIR, the original
CSAPR, and the CSAPR Update. For the
convenience of the commenter and
others who might be similarly
interested, EPA has extracted this
information from the database into a
spreadsheet which has been added to
the docket for this action.54
B. Emissions Reduction Requirements
Comment: One commenter stated it
had no objection to the proposed
revisions to the provisions expressing
the NOX SIP Call’s emissions reduction
requirements to the extent that the
revisions do not substantively adjust the
states’ budgets.
Response: EPA thanks the commenter
for this comment.
Comment: One commenter agreed
with EPA’s objective of clarifying and
simplifying the provisions describing
53 See
https://ampd.epa.gov/ampd.
Existing Units Potentially Affected by the
NOX SIP Call Monitoring Amendment (December
2018), available in the docket for this action. EPA
acknowledges that the database does not
differentiate between two sets of units for which the
SIPNOX code is used: (1) Large EGUs and large nonEGU boilers and turbines that are described in
§ 51.121(i)(4) and are potentially affected by the
amendments in this action, and (2) other units that
are not described in § 51.121(i)(4) and therefore are
not affected by the amendments in this action, but
that nevertheless monitor according to part 75 for
NOX SIP Call purposes pursuant to requirements in
their states’ SIPs. The spreadsheet in the docket
includes only units in the first set.
54 See
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the NOX SIP Call’s emissions reduction
requirements but offered suggestions for
doing so in ways that differed in some
respects from the proposed
amendments. First, the commenter
suggested replacing the terms ‘‘budget’’
and ‘‘NOX budget’’ with a single term
such as ‘‘NOX ozone season budget’’
both for consistency and to clarify that
the budgets apply to seasonal rather
than annual emissions. The commenter
also suggested that EPA specify that the
final budgets apply starting in 2007 and
define the term ‘‘ozone season’’ in the
regulations. Finally, the commenter
suggested that all references to the
Phase I budgets could be removed from
the regulations because these budgets no
longer have any substantive effect.
Response: EPA agrees with most of
the commenter’s suggestions. In
particular, EPA agrees that the
regulations would be clarified by
consistently using the term ‘‘NOX ozone
season budget’’ throughout
§ 202F;51.121, specifying that the final
budgets apply starting in 2007, and
documenting the definition used for the
term ‘‘ozone season.’’ Extending the
commenter’s suggestions, EPA believes
the regulations would be further
clarified by indicating that other
emissions amounts described in the
regulations are also ozone season
emissions and documenting the
definition used for the term ‘‘nitrogen
oxides’’ or ‘‘NOX.’’ The specific changes
from proposal that are being adopted in
response to the commenter’s suggestion
are described in section IV of this
document.
Although EPA agrees with the
commenter’s observation that the Phase
I budgets no longer have any substantive
regulatory effect, EPA disagrees with the
suggestion to remove all references to
these budgets from the regulations. All
but one of the states subject to the NOX
SIP Call as implemented was required to
adopt a SIP revision designed to comply
with a Phase I budget, and some of the
control measures adopted in those SIP
revisions (such as measures to reduce
emissions from cement kilns or
stationary internal combustion engines)
continue to be implemented as
approved SIP provisions. While these
control measures now address
requirements to comply with the final
budgets rather than the Phase I budgets,
EPA considers it reasonable to retain the
Phase I budgets in the regulations (and
to specify their years of applicability) to
document and facilitate understanding
of both the state regulatory actions that
originally adopted the measures and the
EPA actions that approved the measures
into the SIPs.
PO 00000
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C. Baseline Emissions Inventory Table
Comment: One commenter objected to
the proposed removal of the baseline
emissions inventory table in
§ 51.121(g)(2)(ii), requesting that the
table be retained (with any necessary
updates) for use in implementing the
provisions at § 51.121(f)(2) that require
enforceable limits on seasonal NOX
mass emissions from large EGUs and
large non-EGU boilers and turbines. The
text of § 51.121(f)(2)(ii), which EPA has
not proposed to substantively amend,
contains the phrase ‘‘the total NOX
emissions projected for such sources by
the State pursuant to paragraph (g) of
this section.’’ The commenter interprets
this phrase as referring to amounts of
emissions that the commenter believes
either are or should be shown in the
baseline emissions inventory table in
§ 51.121(g)(2)(ii).
Response: EPA disagrees with this
comment, which appears to arise from
a misinterpretation of the reference to
‘‘paragraph (g)’’ in § 51.121(f)(2)(ii). The
various subparagraphs of § 51.121(g)
describe or implicate two different types
of projected 2007 emissions amounts.
The first type is the baseline pre-control
emissions amounts projected by EPA to
represent emissions absent the
reductions required by the NOX SIP
Call. The second type is the post-control
emissions amounts projected by states
to represent emissions following
implementation of the control measures
adopted in their SIPs. The table in
§ 51.121(g)(2)(ii) that EPA proposed to
delete was intended to contain 55 the
first type of emissions amount—
specifically, the pre-control emissions
amounts projected by EPA for all
sources 56 in all sectors. In contrast, the
phrase ‘‘the total NOX emissions
projected for such sources 57 by the State
pursuant to paragraph (g) of this
section’’ in § 51.121(f)(2)(ii) refers to the
second type of emissions amount—
specifically, the post-control emissions
amounts projected by states for their
55 As noted in the proposal, because of an error
setting out the regulatory text for certain NOX SIP
Call amendments finalized in 2000, the current
table incorrectly shows the potential post-control
emissions amounts that EPA projected for use in
setting the states’ amended statewide emissions
budgets rather than the amended pre-control
emissions amounts as intended. See 83 FR at 48760
& n.48.
56 The ‘‘EGU’’ and ‘‘non-EGU’’ columns of the
table in § 51.121(g)(2)(ii)—both the original version
showing EPA’s projections of pre-control emissions
and the incorrectly amended version showing
EPA’s projections of post-control emissions—
include emissions amounts for all EGU and nonEGU point sources, not just large EGUs and large
non-EGU boilers and turbines.
57 The term ‘‘such sources’’ in § 51.121(f)(2)(ii)
refers to the large EGUs and large non-EGU boilers
and turbines identified in § 51.121(f)(2).
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large EGUs and large non-EGU boilers
and turbines pursuant to
§ 51.121(g)(2)(iii) and used in the
demonstrations required under
§ 51.121(g)(1). The fact that the phrase
in § 51.121(f)(2)(ii) refers to the second
type of emissions amount is evident for
two reasons: first, the relevant amounts
are projected ‘‘by the State’’ and not by
EPA, and second, the purpose of
§ 51.121(f)(2)(ii) is to require enforceable
mechanisms to ensure achievement of
post-control emissions levels rather than
pre-control emissions levels. Thus, the
commenter’s objection to the removal of
the baseline emissions inventory table
in § 51.121(g)(2)(ii) is misplaced.
D. Post-NBTP Transition Requirements
Comment: Without expressing any
objection to the proposed clarifying
amendments to the post-NBTP
transition provision at § 51.121(r)(2),
one commenter requested confirmation
that EPA does not intend the
requirements of the provision as revised
to apply with regard to EGUs that
participate in the CSAPR Update trading
program under the regulations set forth
at 40 CFR part 97, subpart EEEEE,58
pursuant to an approved SIP revision.
Response: The proposed clarifying
revisions to the NOX SIP Call post-NBTP
transition provision at § 51.121(r)(2) add
a cross-reference to 40 CFR
52.38(b)(10)(ii), which is an existing
provision of the CSAPR regulations
governing SIP approvals. Under this
provision of the CSAPR regulations,
where a state has an approved full
CSAPR SIP revision requiring certain
units in the state to participate in a state
seasonal NOX trading program
integrated with the Federal CSAPR
Update seasonal NOX trading program
established under 40 CFR part 97,
subpart EEEEE, the NOX SIP Call’s postNBTP transition requirements under
§ 51.121(r)(2) are satisfied with regard to
any of the state’s large EGUs or large
non-EGU boilers and turbines
participating in that state trading
program. As explained in the
proposal,59 the addition of the cross
reference in § 51.121(r)(2) is not a
substantive change because the approval
of a full CSAPR SIP would produce this
result even without a cross-reference,
58 The commenter similarly requests confirmation
with regard to EGUs that participate in the original
CSAPR seasonal NOX trading program under the
regulations set forth at 40 CFR part 97, subpart
BBBBB, but this request is moot because there are
no states subject to the NOX SIP Call with EGUs that
continue to participate in the original CSAPR
seasonal NOX trading program.
59 83 FR at 48760–61.
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but the cross-reference clarifies the NOX
SIP Call regulations.
Comment: Without expressing any
objection to the proposed clarifying
amendments to the post-NBTP
transition provision at § 51.121(r)(2),
one commenter requested that EPA
further clarify the Rule’s post-NBTP
transition requirements by adding a new
regulatory provision indicating that
where a state does not require its large
non-EGU boilers and turbines to
participate in the CSAPR Update trading
program, the state must impose a cap on
these units’ collective seasonal NOX
mass emissions equivalent to the
portion of the statewide emissions
budget assigned to the units under the
NBTP. The commenter requested that
EPA add the new provision to
§ 51.121(f)(2), the provision establishing
the requirement for enforceable limits
on seasonal NOX mass emissions from
large EGUs and large non-EGU boilers
and turbines.
Response: This comment is outside
the scope of the proposal. A
requirement for a cap on the collective
NOX mass emissions of each state’s large
non-EGU boilers and turbines does not
appear in the existing regulatory text at
§ 51.121 because, as discussed in the
proposal and summarized in section
II.A. of this document, the NOX SIP Call
did not require states to control any
specific types of sources or to adopt any
specific types of control measures. Even
where states chose to adopt control
measures for large EGUs and large nonEGU boilers and turbines, thereby
triggering requirements for enforceable
limits on seasonal NOX mass emissions
from those sources, the regulations
provided several permissible alternative
forms for such limits.60 Similarly, the
post-NBTP provision at § 51.121(r)(2)
does not prescribe what types of sources
states must control to satisfy the postNBTP transition requirements or what
types of control measures states must
employ, but simply requires each state
with units affected under the NOX SIP
Call that do not participate in a
successor trading program to the NBTP
to ‘‘revise the SIP to adopt control
measures that satisfy the same portion
of the State’s emission reduction
requirements under [§ 51.121] as the
State projected [the NBTP] would
satisfy.’’ The commenter’s requested
amendment would codify as a Federal
requirement what may be the simplest
way to satisfy the Rule’s post-NBTP
transition requirements, but it would
also reduce states’ flexibility by
eliminating options to satisfy the postNBTP transition requirements in other
60 See
PO 00000
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8437
ways, and the reduction in flexibility
would represent a substantive change to
the existing regulations. EPA did not
propose substantive changes to the postNBTP transition provision and made
clear that the only provision of the NOX
SIP Call regulations being reopened for
substantive comment was the provision
concerning part 75 monitoring
requirements for large EGUs and large
non-EGU boilers and turbines.
Comment: Without expressing any
objection to the proposed clarifying
amendments to the post-NBTP
transition provision at § 51.121(r)(2),
two commenters requested that EPA
identify in the regulations the portion of
each state’s statewide emissions budget
assigned to the state’s large non-EGU
boilers and turbines by adding this
information either as a new table or as
an additional column in the table of
statewide budgets in § 51.121(e)(2)(i).
The commenters suggested that
inclusion of these amounts in the
regulations could help states address
their post-NBTP transition
requirements. One of the commenters
accompanied this comment with a
request that EPA confirm ‘‘it is the
EPA’s intent that all required SIP
elements for the NOX SIP Call are
contained under § 51.121.’’
Response: These comments are
outside the scope of the proposal. The
portions of the statewide emissions
budgets assigned to various categories of
sources do not appear in the existing
regulatory text at § 51.121 because, as
discussed in the proposal and
summarized in section II.A. of this
document, the NOX SIP Call did not
establish required post-control
emissions amounts for any specific
categories of sources. Instead, each state
determined what portions of its postcontrol statewide emissions budget to
assign to the specific categories of
sources in the state, and the assignments
were approved in separate SIP approval
actions for each state.61 Adopting the
state-determined, sector-specific
assignments as Federal requirements at
this time would be a substantive change
to the existing regulations because it
would reduce states’ flexibility to revise
their previous choices and select other
ways of addressing their post-NBTP
transition requirements. EPA did not
propose substantive changes to the postNBTP transition provision and made
clear that the only provision of the NOX
SIP Call regulations being reopened for
61 See, e.g., 67 FR 68542 (Nov. 12, 2002)
(proposing to approve Virginia SIP provisions
assigning portions of the statewide emissions
budget to large EGUs and large non-EGU boilers and
turbines); see also 68 FR 40520 (July 8, 2003)
(finalizing approval).
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substantive comment was the provision
concerning part 75 monitoring
requirements for large EGUs and large
non-EGU boilers and turbines.
Comment: Without expressing any
objection to the proposed clarifying
revisions to the post-NBTP transition
provision at § 51.121(r)(2), one
commenter noted the proposed
insertion of the words ‘‘or included’’
into the phrase ‘‘a State whose SIP . . .
includes or included an emission
trading program approved under
[§ 51.121]’’ and indicated that the
commenter’s interpretation of the
revised language is that ‘‘no action is
necessary to affirm [the commenter’s]
obligation to maintain NOX SIP Call
emissions control.’’ The commenter
requested that EPA clarify in this final
action if the state’s interpretation is not
correct.
Response: EPA considers this
comment to be outside the scope of the
proposal. As discussed in the proposal,
the reason for inserting the words ‘‘or
included’’ in § 51.121(r)(2) was to
eliminate any possible mistaken
inference that a state’s obligation to
maintain NOX SIP Call emission
controls might be contingent on whether
its SIP currently includes trading
program provisions and to reinforce that
the Rule’s emissions reductions are
permanent and enforceable.62 EPA does
not consider this to be a substantive
change to the regulations.63 While the
commenter contends that its request for
clarification about the need for any
further action regarding its SIP arises
from the proposed insertion, the
commenter has not explained how, if at
all, its interpretation of the post-NBTP
transition requirements might have been
influenced by the proposed insertion,
and there is no indication that the
commenter’s interpretation has changed
from its interpretation before issuance of
the proposal.64 Given the lack of any
62 83
FR at 48760–61.
notes that the continued applicability of
the post-NBTP transition requirements following
the replacement of the CAIR seasonal NOX trading
program by the original CSAPR seasonal NOX
trading program was discussed in the preamble for
the CSAPR final rule. 76 FR at 48325.
64 Like several other states, when the NBTP was
discontinued, the commenter elected to include its
large non-EGU boilers and turbines in the
replacement seasonal NOX trading program
established under CAIR, and EPA subsequently
approved the removal of the NBTP from its SIP. The
commenter is thus a state whose SIP ‘‘included’’ a
trading program approved under § 51.121. The
commenter clearly is not contending that, prior to
this action, it believed the requirement to adopt
control measures replacing the NBTP no longer
applied to it because its SIP no longer ‘‘includes’’
the NBTP and that, now, the insertion of the words
‘‘or included’’ would cause it to understand the
requirement once again applies, although such a
contention would have internal logic and would be
63 EPA
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apparent connection between the
proposed revision and the commenter’s
request for clarification, EPA interprets
the comment as a request for a
determination concerning the
commenter’s SIP that is outside the
scope of the proposal. For this action,
EPA did not propose to make any
determinations regarding whether any
further action is or is not necessary to
address any specific state’s post-NBTP
transition requirements. Accordingly,
EPA is not making any such statespecific determinations in this final
action, either through express
statements or otherwise.
IV. Final Action
For the reasons discussed in the
proposal, as supplemented by the
discussion in this document, EPA is
finalizing amendments to the NOX SIP
Call regulations at 40 CFR 51.121 and
51.122 and amendments to associated
cross-references in the CSAPR
regulations at 40 CFR 52.38. In place of
the current requirement for states to
include provisions in their SIPs under
which certain emissions sources must
monitor their seasonal NOX mass
emissions according to 40 CFR part 75,
the amended regulations will allow
states to include alternate forms of
monitoring requirements in their SIPs
for NOX SIP Call purposes. Other
amendments remove obsolete
provisions and clarify the remaining
regulations but do not substantively
alter any current regulatory
requirements.
Descriptions of the individual
proposed amendments are provided in
sections II.B. and II.C. of this document
and further discussion is provided in
the proposal. EPA is finalizing the
amendments generally as proposed with
the following further revisions, all of
which EPA considers to be nonsubstantive changes from the proposal:
• To improve clarity, the final
regulatory text of § 51.121(i)(4) is being
revised from the proposed amended text
in two ways. First, the final revisions
consistent with the purpose of the proposed
clarification. The comment does not set forth the
commenter’s interpretation of § 51.121(r)(2) prior to
this action, but if the commenter is contending that,
prior to this action, it understood the requirement
to adopt replacement control measures applied to
it and that, now, the insertion of the words ‘‘or
included’’ would cause it to believe the requirement
no longer applies, that contention would be
illogical. If the commenter is contending that the
insertion of the words ‘‘or included’’ would alter its
interpretation concerning the nature of the
replacement control measures that can satisfy the
post-NBTP transition requirements, that contention
would also be illogical because with or without the
added words, the post-NBTP transition provision
does not address the nature of replacement control
measures that states may or must adopt.
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indicate that where a state chooses to
require part 75 monitoring for some or
all large EGUs and large non-EGU
boilers and turbines for NOX SIP Call
purposes, the ‘‘full set of’’ monitoring,
recordkeeping, and reporting provisions
in subpart H of part 75 must be
required. The added words clarify that
the amendments do not authorize states
to create partial versions of the part 75
regulations that EPA would then have to
administer on a state-specific basis.
Second, the final revisions remove a
phrase indicating that the amended text
does not create any exception to any
part 75 requirements that may apply to
a source under another legal authority.
The removed phrase is unnecessary
because, on its face, the amended text
merely gives states an option to require
part 75 monitoring for NOX SIP Call
purposes and does not create or
authorize any exceptions to any
requirements that may apply to any
source under any legal authority. EPA
believes the text of the final amendment
is clearer and does not differ
substantively from the text of the
amendment as proposed.
• As discussed in EPA’s response to
comments in section III.B. of this
document, the regulatory text
expressing the NOX SIP Call’s emissions
reduction requirements is being further
clarified by using more precise
terminology and documenting the
definitions that already apply for two
important terms. The final revisions (1)
use the standard term ‘‘NOX ozone
season budget’’ consistently, (2) specify
emissions ‘‘during the ozone season’’
where appropriate, (3) indicate the
respective years of applicability for the
Phase I and final emissions budgets, and
(4) add definitions of the terms
‘‘nitrogen oxides or NOX’’ and ‘‘ozone
season’’ to § 51.121. The term ‘‘nitrogen
oxides or NOX’’ is defined as ‘‘all oxides
of nitrogen except nitrous oxide (N2O),
reported on an equivalent molecular
weight basis as nitrogen dioxide (NO2).’’
The term ‘‘ozone season’’ is defined as
‘‘the period from May 1 through
September 30 of a year.’’ The added
definitions do not alter any regulatory
requirements because they are
substantively identical to the definitions
that already explicitly apply for
purposes of § 51.122 and that have
historically been used in practice for
purposes of § 51.121 as well.65 The
additional revisions affect the regulatory
text at § 51.121(a)(3), (b)(1)(i) and (iii),
(e)(1), (e)(2)(i) and (ii), (f) introductory
65 See 40 CFR 51.122(a); see also id. § 51.50
(definition of ‘‘nitrogen oxides’’).
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text, (f)(2) introductory text, (f)(2)(i)(C),
(g)(1), (g)(2)(i) and (iii), (i), and (j)(1).
• Instead of being removed as
proposed, the provision at § 51.121(d)(2)
concerning procedural requirements for
SIP submissions is being revised to
incorporate the updated procedural
requirements for SIP submissions at 40
CFR 51.103. In the proposal,66 EPA
stated the intent for the completeness
and format requirements in § 51.103 to
apply to any future SIP submissions
under § 51.121. The final revision makes
such applicability explicit and is
consistent with several other provisions
of § 51.121 that similarly incorporate
requirements set forth in other sections
of 40 CFR part 51.
• An additional editorial revision is
being made to the text of § 51.121(k)(2).
The revision clarifies the regulations by
standardizing citation formats.
A redline-strikeout document
showing the text of 40 CFR 51.121 and
51.122 with the amendments adopted in
this action, including all the proposed
amendments to the NOX SIP Call
regulations with the further revisions
just described, is available in the docket
for this action.
The amendments finalized in this
action are effective immediately upon
publication of the action in the Federal
Register. This final action is not subject
to requirements specifying a minimum
period between publication and
effectiveness under either Congressional
Review Act (CRA) section 801(a)(3), 5
U.S.C. 801(a)(3), or Administrative
Procedure Act (APA) section 553(d), 5
U.S.C. 553(d).
CRA section 801(a)(3) generally
prohibits a ‘‘major rule’’ from taking
effect earlier than 60 days after the rule
is published in the Federal Register.
Generally, under CRA section 804(2), 5
U.S.C. 804(2), a major rule is a rule that
the Office of Management and Budget
(OMB) finds has resulted in or is likely
to result in (1) an annual effect on the
economy of $100 million or more, (2)
major cost or price increases, or (3)
other significant adverse economic
effects. This action is not a major rule
for CRA purposes.
As discussed in section VI.M. of this
document, EPA is issuing the
amendments under CAA section 307(d).
This provision does not include
requirements governing the effective
date of a rule promulgated under it and,
accordingly, EPA has discretion in
establishing the effective date. While
APA section 553(d) generally provides
that rules may not take effect earlier
than 30 days after they are published in
the Federal Register, CAA section
66 83
FR at 48761.
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307(d)(1) clarifies that ‘‘[t]he provisions
of [APA] section 553 . . . shall not,
except as expressly provided in this
section, apply to actions to which this
subsection applies.’’ Thus, APA section
553(d) does not apply to the
amendments. Nevertheless, in making
this final action effective immediately
upon publication, EPA has considered
the purposes underlying APA section
553(d). The primary purpose of the
prescribed 30-day waiting period is to
give affected parties a reasonable time to
adjust their behavior and prepare before
a final rule takes effect. The
amendments made in this action do not
impose any new regulatory
requirements and therefore do not
necessitate time for affected sources to
adjust their behavior or otherwise
prepare for implementation. Further,
APA section 553(d) expressly allows an
effective date earlier than 30 days after
publication for a rule that ‘‘grants or
recognizes an exemption or relieves a
restriction.’’ This action relieves an
existing restriction and allows EPA to
approve SIPs with more flexible
monitoring requirements, which in turn
could lead to reduced monitoring costs
for certain sources. Consequently,
making the amendments effective
immediately upon publication of the
action is consistent with the purposes of
APA section 553(d).
V. Impacts of the Amendments
The only amendment being finalized
in this action that substantively alters
existing regulatory requirements is the
amendment allowing states to revise
their SIPs, for NOX SIP Call purposes
only, to establish monitoring
requirements other than part 75
monitoring requirements. The
amendments do not change any of the
Rule’s existing regulatory requirements
related to statewide emissions budgets
or enforceable mass emissions limits for
large EGUs and large non-EGU boilers
and turbines. Accordingly, EPA expects
that the amendments will have no
impact on emissions or air quality.
However, EPA does expect that the
amendment to the Rule’s monitoring
requirements will ultimately allow some
sources to reduce their monitoring costs
because of alternate monitoring
requirements established in SIP
revisions submitted and approved for
their states. Because states, not EPA,
will decide whether to revise the
monitoring requirements in their SIPs
and because EPA lacks complete
information on the remaining
monitoring requirements that the
sources would face, there is
considerable uncertainty concerning the
amount of monitoring cost reductions
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8439
that may be facilitated by this action,
and EPA did not present a quantitative
estimate of potential monitoring cost
reductions in the proposal. For purposes
of the final action, based in part on
improved information obtained through
comments, EPA has estimated a range of
potential annual monitoring cost
reductions from $1.2 million to $3.3
million, with a midpoint estimate of
$2.25 million, as further discussed
below. Given the absence of any change
in emissions or air quality, there would
be no change in the public health and
environmental benefits attributable to
the NOX SIP Call’s emissions reduction
requirements, and the likely reductions
in monitoring costs therefore are
expected to constitute positive net
benefits from this action.
As of December 2018, EPA’s records
indicate that there are approximately
315 existing large EGUs and large nonEGU boilers and turbines in the NOX
SIP Call region that could potentially be
affected by the monitoring amendment
if all states were to revise their SIPs.67
To estimate how many of these
potentially affected existing units may
ultimately face alternate monitoring
requirements made possible by the
monitoring amendment in this action,
EPA is relying on information obtained
from states’ comments. Six states
submitted comments expressing support
for the proposed monitoring
amendment.68 While these comments
do not in any way obligate the states to
submit SIP revisions with alternate
monitoring requirements, and
additional states that did not submit
comments could also choose to submit
SIP revisions, EPA believes that the
comments provide a reasonable basis for
assuming, solely for purposes of
developing an estimate of this action’s
impacts, that the 102 existing units in
these six states will ultimately face
alternate monitoring requirements of
some kind.69 According to the
monitoring plans for these units, 34
units use both gas concentration CEMS
67 The spreadsheet referenced in note 54 supra
identifies 317 potentially affected existing units. As
noted in section II.B. of this document, in the
proposal for this action EPA indicated that there
were approximately 310 potentially affected
existing units. Several additional units started
reporting emissions for NOX SIP Call purposes in
2018.
68 The six states are Indiana, Michigan, North
Carolina, Ohio, South Carolina, and West Virginia.
69 The 102 units are the existing units identified
in the spreadsheet referenced in note 54 supra for
these six states. While any new units in these states
that otherwise would have been required to use
CEMS methodologies for NOX SIP Call purposes
could also experience monitoring cost reductions,
EPA believes it is reasonable to ignore possible new
units in preparing this estimate due to the larger
numbers of existing units.
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and stack gas flow rate CEMS, 35 units
use gas concentration CEMS but not
stack gas flow rate CEMS, and 33 units
use non-CEMS methodologies. For
purposes of estimating potential
monitoring cost reductions, EPA has
focused on the units currently using
CEMS because, as noted in the proposal
and in section II.B. of this document,
EPA expects that units already using
non-CEMS methodologies under part 75
would experience little or no reduction
in monitoring costs from alternate
monitoring requirements.
To represent the alternate monitoring
requirements that the units currently
using CEMS could face in a manner that
reflects the substantial uncertainty on
this issue, EPA has used a range of
assumptions. Specifically, to estimate
the low end of the range, EPA has
assumed that the only change from
current requirements is that the 34 units
currently using both gas concentration
CEMS and stack gas flow rate CEMS
will discontinue the use of stack gas
flow rate CEMS. EPA considers this
assumption to be reasonable for
purposes of estimating potential
monitoring cost reductions because
requirements to use stack gas flow rate
CEMS are relatively uncommon in nonpart 75 monitoring regulations. EPA also
believes the units currently using stack
gas flow rate CEMS are more likely than
other potentially affected units to
continue to be subject to requirements
to use gas concentration CEMS because
many of these units combust solid fuel
and consequently may have triggered
emission control requirements and
associated emissions monitoring
requirements under other regulations.
To estimate the high end of the range,
EPA has assumed that in addition to the
change just described, the 35 units
currently using only gas concentration
CEMS will switch to a non-CEMS
methodology. While it is possible that
some of these units may also face
continued requirements to use gas
concentration CEMS under other
regulations, EPA believes the likelihood
that these units, none of which combust
solid fuel, would be eligible to use nonCEMS methodologies is greater than for
the units that currently use both gas
concentration CEMS and stack gas flow
rate CEMS.
To estimate the monitoring cost
reductions associated with the assumed
range of changes in monitoring
requirements, EPA has used the cost
estimates for the various part 75
monitoring methodologies contained in
the information collection request (ICR)
renewal prepared in conjunction with
this action for purposes of the
Paperwork Reduction Act, 44 U.S.C.
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3501 et seq.70 Based on the cost
estimates in the ICR renewal, EPA has
estimated that the potential annual cost
reduction from discontinuing the use of
stack gas flow rate CEMS—including
reductions in labor costs, non-labor
operating and maintenance costs
(including contractor costs), and
annualized capital costs—is
approximately $35,000 per unit, while
the analogous potential annual cost
reduction from discontinuing the use of
gas concentration CEMS is
approximately $60,000 per unit.71
Multiplying these per-unit amounts by
the respective numbers of units yields
an estimated range of potential annual
monitoring cost reductions from $1.2
million to $3.3 million.72 The midpoint
of this range is a potential reduction in
annual monitoring costs of $2.25
million.
VI. Statutory and Executive Order
Reviews
Additional information about these
statutes and executive orders can be
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory
Planning and Review, and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action and was therefore not
submitted to OMB for review.
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action is considered an
Executive Order 13771 deregulatory
action. This final rule provides
meaningful burden reduction by
allowing states to establish lower-cost
monitoring requirements in their SIPs
for some sources as alternatives to part
75 monitoring requirements. Because
states, not EPA, will decide whether to
revise the monitoring requirements in
their SIPs and because EPA lacks
complete information on the remaining
monitoring requirements that the
sources would face, there is
70 See
section VI.C. infra.
Information Collection Request Renewal
for the NOX SIP Call: Supporting Statement
(September 2018) at 12 (Table 6–2), available in the
docket for this action. The $35,000 estimate is the
rounded difference between the sum of the amounts
in the labor, O&M, and annualized capital cost
columns on line 6(a) and the sum of the amounts
in the same columns on line 6(b). The $60,000
estimate is the rounded difference from the same
calculation performed using the amounts on lines
6(b) and 6(c) instead.
72 Calculation of low end of range: 34 units ×
$35,000 per unit = $1.2 million.
Calculation of high end of range: 35 units ×
$60,000 per unit + $1.2 million = $3.3 million.
71 See
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considerable uncertainty regarding the
amount of monitoring cost reductions
that may occur, but EPA has quantified
an estimated range in section V of this
document. In addition, the proposal’s
qualitative discussion of the potential
monitoring cost reductions 73 is
summarized in section II.B. of this
document.
C. Paperwork Reduction Act
This action does not impose any new
information collection burden under the
Paperwork Reduction Act. OMB has
previously approved the information
collection activities contained in the
existing regulations and has assigned
OMB control number 2060–0445.
However, to reflect the amendment
allowing states to establish potentially
lower-cost monitoring requirements for
some sources as alternatives to the
current part 75 monitoring
requirements, EPA submitted an
information collection request (ICR)
renewal to OMB in conjunction with the
proposal for this action. The ICR
document prepared by EPA, which has
been assigned EPA ICR number 1857.08,
can be found in the docket for this
action. None of the comments that EPA
received during the public comment
period for the proposal addressed the
ICR renewal.
Like the current ICR, the ICR renewal
reflects the information collection
burden and costs associated with part
75 monitoring requirements for sources
that are subject to part 75 monitoring
requirements under the SIP revisions
addressing states’ NOX SIP Call
obligations and that are not subject to
part 75 monitoring requirements under
the Acid Rain Program or a CSAPR
trading program. The ICR renewal is
generally unchanged from the current
ICR except that the renewal reflects
projected decreases in the numbers of
sources that would perform part 75
monitoring for NOX SIP Call purposes
based on an assumption (made only for
purposes of estimating information
collection burden and costs for the ICR
renewal) that, over the course of the 3year renewal period, some states will
revise their SIPs to replace part 75
monitoring requirements for some
sources with lower-cost monitoring
requirements. As under the current ICR,
all information collected from sources
under the ICR renewal will be treated as
public information.
Respondents/affected entities: Fossil
fuel-fired boilers and stationary
combustion turbines that have heat
input capacities greater than 250
mmBtu/hr or serve electricity generators
73 83
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with nameplate capacities greater than
25 MW and that are not subject to part
75 monitoring requirements under
another program.
Respondents’ obligation to respond:
Mandatory if elected by the state (40
CFR 51.121(i)(4) as amended).
Estimated number of respondents:
340 (average over 2019–2021 renewal
period).
Frequency of response: Quarterly,
occasionally.
Total estimated burden: 131,945
hours (per year). Burden is defined at 5
CFR 1320.3(b).
Total estimated cost: $19,143,004 (per
year), includes $8,256,087 annualized
capital or operation & maintenance
costs.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9. When
OMB approves this ICR renewal, the
Agency will announce that approval in
the Federal Register.
D. Regulatory Flexibility Act
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act, 5
U.S.C. 601–612. In making this
determination, the impact of concern is
any significant adverse economic
impact on small entities. An agency may
certify that a rule will not have a
significant economic impact on a
substantial number of small entities if
the rule relieves regulatory burden, has
no net burden, or otherwise has a
positive economic effect on the small
entities subject to the rule. This action
does not directly regulate any entity, but
simply allows states to establish
potentially lower-cost monitoring
requirements for some sources and
generally streamlines existing
regulations. EPA has therefore
concluded that this action will either
relieve or have no net regulatory burden
for all affected small entities.
E. Unfunded Mandates Reform Act
This action does not contain any
unfunded mandate as described in the
Unfunded Mandates Reform Act, 2
U.S.C. 1531–1538, and does not
significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local, or
tribal governments or the private sector.
This action simply allows states to
establish potentially lower-cost
monitoring requirements for some
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sources and generally streamlines
existing regulations.
F. 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. This action
simply allows states to establish
potentially lower-cost monitoring
requirements for some sources and
generally streamlines existing
regulations.
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. It will not have substantial
direct effects on tribal governments, on
the relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes. This
action simply allows states to establish
potentially lower-cost monitoring
requirements for some sources and
generally streamlines existing
regulations. Thus, Executive Order
13175 does not apply to this action.
H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets Executive Order 13045
as applying only to those regulatory
actions that concern environmental
health or safety risks that EPA has
reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. This action is not
subject to Executive Order 13045
because it does not concern an
environmental health risk or safety risk.
This action simply allows states to
establish potentially lower-cost
monitoring requirements for some
sources and generally streamlines
existing regulations.
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 because it is not a
significant regulatory action under
Executive Order 12866.
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8441
J. National Technology Transfer
Advancement Act
This rulemaking does not involve
technical standards.
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
EPA believes that this action is not
subject to Executive Order 12898
because it does not establish an
environmental health or safety standard.
This action simply allows states to
establish potentially lower-cost
monitoring requirements for some
sources and generally streamlines
existing regulations. Consistent with
Executive Order 12898 and EPA’s
environmental justice policies, EPA
considered effects on low-income
populations, minority populations, and
indigenous peoples while developing
the original NOX SIP Call. The process
and results of that consideration are
described in the Regulatory Impact
Analysis for the NOX SIP Call.
L. Congressional Review Act
This action is subject to the
Congressional Review Act, and EPA will
submit a rule report to each House of
the Congress and to the Comptroller
General of the United States. This action
is not a ‘‘major rule’’ as defined by 5
U.S.C. 804(2).
M. Determinations Under CAA Section
307(b) and (d)
CAA section 307(b)(1), 42 U.S.C.
7607(b)(1), indicates which United
States Courts of Appeals have venue for
petitions of review of final actions by
EPA. This section provides, in part, that
petitions for review must be filed in the
U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) if (i) the
Agency action consists of ‘‘nationally
applicable regulations promulgated, or
final action taken, by the
Administrator,’’ or (ii) the action is
locally or regionally applicable, but
‘‘such action is based on a
determination of nationwide scope or
effect and if in taking such action the
Administrator finds and publishes that
such action is based on such a
determination.’’ This action amends
existing regulations that apply to 20
states and the District of Columbia, and
thus the action applies to the same 21
jurisdictions. The existing regulations
were promulgated to address interstate
transport of air pollution across the
eastern half of the nation and the
resulting emissions reductions have
been relied on as a basis for actions
redesignating areas in at least 20 states
to attainment with one or more NAAQS.
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The states affected under the regulations
and relying on the resulting emissions
reductions are located in multiple EPA
Regions and Federal judicial circuits.
Previous final actions promulgating and
amending the existing regulations were
nationally applicable and reviewed in
the D.C. Circuit. For these reasons, the
Administrator determines that this final
action is nationally applicable or, in the
alternative, is based on a determination
of nationwide scope and effect for
purposes of section 307(b)(1). Thus,
pursuant to section 307(b), any petitions
for review of this final action must be
filed in the D.C. Circuit within 60 days
from the date this final action is
published in the Federal Register.
CAA section 307(d), 42 U.S.C.
7607(d), contains rulemaking and
judicial review provisions that apply to
certain EPA actions under the CAA
including, under section 307(d)(1)(V),
‘‘such other actions as the Administrator
may determine.’’ In accordance with
section 307(d)(1)(V), the Administrator
determines that the provisions of
section 307(d) apply to this final action.
EPA has complied with the procedural
requirements of section 307(d) during
the course of this rulemaking.
List of Subjects
40 CFR Part 51
Environmental protection,
Administrative practice and procedure,
Air pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxide.
40 CFR Part 52
Environmental protection,
Administrative practice and procedure,
Air pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxide.
Dated: February 26, 2019.
Andrew R. Wheeler,
Acting Administrator.
For the reasons stated in the
preamble, parts 51 and 52 of chapter I
of title 40 of the Code of Federal
Regulations are amended as follows:
PART 51—REQUIREMENTS FOR
PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION
PLANS
1. The authority citation for part 51
continues to read as follows:
■
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
7671q.
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§ 51.121
[Amended]
2. Section 51.121 is amended by:
a. Revising the section heading;
b. Removing and reserving paragraph
(a)(2);
■ c. Revising paragraph (a)(3);
■ d. In paragraph (b)(1) introductory
text, removing the text ‘‘section, the’’
and adding in its place the text ‘‘section,
each’’;
■ e. In paragraph (b)(1)(i), adding the
words ‘‘during the ozone season’’ after
the words ‘‘NOX emissions’’, adding the
words ‘‘applicable NOX ozone season’’
before the word ‘‘budget’’, and removing
the text ‘‘(except as provided in
paragraph (b)(2) of this section),’’ and
adding in its place a semicolon;
■ f. In paragraph (b)(1)(ii), removing the
period and adding in its place ‘‘; and’’;
■ g. In paragraph (b)(1)(iii), adding the
words ‘‘NOX ozone season’’ before the
word ‘‘budget’’;
■ h. Removing and reserving paragraph
(b)(2);
■ i. In paragraph (c)(1), removing the
text ‘‘With respect to the 1-hour ozone
NAAQS:’’;
■ j. In paragraph (c)(2), removing the
text ‘‘With respect to the 1-hour ozone
NAAQS, the portions of Missouri,
Michigan, and Alabama’’ and adding in
its place the text ‘‘The portions of
Alabama, Michigan, and Missouri’’;
■ k. Removing and reserving paragraph
(d)(1);
■ l. Revising paragraph (d)(2);
■ m. In paragraph (e)(1), adding the
words ‘‘ozone season’’ before the word
‘‘budget’’;
■ n. Revising paragraph (e)(2)(i);
■ o. In paragraph (e)(2)(ii)(A), adding
the words ‘‘ozone season’’ before the
word ‘‘budget’’;
■ p. In paragraph (e)(2)(ii)(B), removing
the text ‘‘De Kalb’’ and adding in its
place the text ‘‘DeKalb’’;
■ q. In paragraph (e)(2)(ii)(E), removing
the text ‘‘St. Genevieve,’’ and after the
text ‘‘St. Louis City,’’ adding the text
‘‘Ste. Genevieve,’’;
■ r. Removing paragraphs (e)(3), (4), and
(5);
■ s. In paragraphs (f) introductory text
and (f)(2) introductory text, adding the
words ‘‘ozone season’’ before the word
‘‘budget’’;
■ t. In paragraph (f)(2)(i)(B), removing
the words ‘‘mass NOX’’ and adding in
their place the words ‘‘NOX mass’’;
■ u. In paragraph (f)(2)(i)(C), removing
‘‘paragraphs (f)(2)(i)(A) or (f)(2)(i)(B)’’
and adding in its place ‘‘paragraph
(f)(2)(i)(A) or (B)’’ and adding the words
‘‘ozone season’’ before the word
‘‘budget’’;
■
■
■
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v. In paragraph (f)(2)(ii), removing the
text ‘‘(b)(1) (i)’’ and adding in its place
the text ‘‘(b)(1)(i)’’;
■ w. In paragraph (g)(1), adding the
words ‘‘ozone season’’ before the word
‘‘budget’’;
■ x. In paragraph (g)(2)(i), adding the
words ‘‘during the ozone season’’ after
the words ‘‘mass emissions’’, adding the
words ‘‘ozone season’’ before the word
‘‘budget’’, and removing the text ‘‘as set
forth for the State in paragraph (g)(2)(ii)
of this section,’’;
■ y. Removing and reserving paragraph
(g)(2)(ii);
■ z. In paragraph (g)(2)(iii), adding the
words ‘‘during the ozone season’’ after
the words ‘‘mass emissions’’;
■ aa. In paragraph (h), removing the
words ‘‘of this part’’;
■ bb. In paragraph (i) introductory text,
adding the words ‘‘ozone season’’ before
the word ‘‘budget’’;
■ cc. In paragraphs (i)(2) and (3),
removing the words ‘‘of this part’’;
■ dd. Revising paragraphs (i)(4) and (5);
■ ee. In paragraph (j)(1), adding the
words ‘‘ozone season’’ before the word
‘‘budget’’;
■ ff. In paragraph (k)(2), removing the
text ‘‘CAA’’ and adding in its place the
text ‘‘CAA, 42 U.S.C. 7414’’;
■ gg. In paragraphs (l) and (m),
removing the phrase ‘‘of this part’’
everywhere it appears;
■ hh. In paragraph (n), removing the text
‘‘§ 52.31(c) of this part’’ and adding in
its place the text ‘‘40 CFR 52.31(c)’’ and
removing the text ‘‘§ 52.31 of this part’’
and adding in its place the text ‘‘40 CFR
52.31’’;
■ ii. In paragraph (o), removing the
words ‘‘of this part’’;
■ jj. Removing and reserving paragraphs
(p) and (q); and
■ kk. Revising paragraph (r).
The revisions read as follows:
■
Subpart G—Control Strategy
§ 51.121 Findings and requirements for
submission of State implementation plan
revisions relating to emissions of nitrogen
oxides.
(a) * * *
(3) As used in this section, these
terms shall have the following
meanings:
Nitrogen oxides or NOX means all
oxides of nitrogen except nitrous oxide
(N2O), reported on an equivalent
molecular weight basis as nitrogen
dioxide (NO2).
Ozone season means the period from
May 1 to September 30 of a year.
Phase I SIP submission means a SIP
revision submitted by a State on or
before October 30, 2000 in compliance
with paragraph (b)(1)(ii) of this section
to limit projected NOX emissions during
the ozone season from sources in the
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relevant portion or all of the State, as
applicable, to no more than the State’s
Phase I NOX ozone season budget under
paragraph (e) of this section.
Phase II SIP submission means a SIP
revision submitted by a State in
compliance with paragraph (b)(1)(ii) of
this section to limit projected NOX
emissions during the ozone season from
sources in the relevant portion or all of
the State, as applicable, to no more than
the State’s final NOX ozone season
budget under paragraph (e) of this
section.
*
*
*
*
*
(d) * * *
(2) Each SIP submission under this
section must comply with § 51.103
(regarding submission of plans).
(e) * * *
(2)(i) The State-by-State amounts of
the Phase I and final NOX ozone season
budgets, expressed in tons, are listed in
Table 1 to this paragraph (e)(2)(i):
TABLE 1 TO PARAGRAPH (e)(2)(I)—STATE NOX OZONE SEASON BUDGETS
State
Phase I NOX
ozone season
budget
(2004–2006)
Alabama .......................................................................................................................................................
Connecticut ..................................................................................................................................................
Delaware ......................................................................................................................................................
District of Columbia .....................................................................................................................................
Illinois ...........................................................................................................................................................
Indiana .........................................................................................................................................................
Kentucky ......................................................................................................................................................
Maryland ......................................................................................................................................................
Massachusetts .............................................................................................................................................
Michigan .......................................................................................................................................................
Missouri ........................................................................................................................................................
New Jersey ..................................................................................................................................................
New York .....................................................................................................................................................
North Carolina ..............................................................................................................................................
Ohio .............................................................................................................................................................
Pennsylvania ................................................................................................................................................
Rhode Island ................................................................................................................................................
South Carolina .............................................................................................................................................
Tennessee ...................................................................................................................................................
Virginia .........................................................................................................................................................
West Virginia ................................................................................................................................................
124,795
42,891
23,522
6,658
278,146
234,625
165,075
82,727
85,871
191,941
..............................
95,882
241,981
171,332
252,282
268,158
9,570
127,756
201,163
186,689
85,045
*
*
*
*
*
(i) * * *
(4) If the revision contains measures
to control fossil fuel-fired NOX sources
serving electric generators with a
nameplate capacity greater than 25
MWe or boilers, combustion turbines or
combined cycle units with a maximum
design heat input greater than 250
mmBtu/hr, then the revision may
require some or all such sources to
comply with the full set of monitoring,
recordkeeping, and reporting provisions
of 40 CFR part 75, subpart H. A State
requiring such compliance authorizes
the Administrator to assist the State in
implementing the revision by carrying
out the functions of the Administrator
under such part.
(5) For purposes of paragraph (i)(4) of
this section, the term ‘‘fossil fuel-fired’’
has the meaning set forth in paragraph
(f)(3) of this section.
*
*
*
*
*
(r)(1) Notwithstanding any provisions
of subparts A through I of 40 CFR part
96 and any State’s SIP to the contrary,
with regard to any ozone season that
occurs after September 30, 2008, the
Administrator will not carry out any of
the functions set forth for the
Administrator in subparts A through I of
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18:14 Mar 07, 2019
Jkt 247001
40 CFR part 96 or in any emissions
trading program provisions in a State’s
SIP approved under this section.
(2) Except as provided in 40 CFR
52.38(b)(10)(ii), a State whose SIP is
approved as meeting the requirements
of this section and that includes or
included an emissions trading program
approved under this section must revise
the SIP to adopt control measures that
satisfy the same portion of the State’s
NOX emissions reduction requirements
under this section as the State projected
such emissions trading program would
satisfy.
§ 51.122
[Amended]
3. Section 51.122 is amended by:
a. In paragraph (c)(1)(ii), removing the
text ‘‘pursuant to a trading program
approved under § 51.121(p) or’’;
■ b. In paragraph (e), removing the first
sentence;
■ c. In paragraph (f), removing the
paragraph heading; and
■ d. Removing the second paragraph (g).
■
■
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
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119,827
42,850
22,862
6,657
271,091
230,381
162,519
81,947
84,848
190,908
61,406
96,876
240,322
165,306
249,541
257,928
9,378
123,496
198,286
180,521
83,921
Authority: 42 U.S.C. 7401 et seq.
Subpart A—General Provisions
§ 52.38
[Amended]
5. In § 52.38, paragraphs (b)(8)(ii),
(b)(8)(iii)(A)(2), (b)(9)(ii), and
(b)(9)(iii)(A)(2) are amended by
removing the text ‘‘§ 51.121(p)’’ and
adding in its place the text ‘‘§ 51.121’’.
■
[FR Doc. 2019–03854 Filed 3–7–19; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 27
[WT Docket No. 06–150; DA 19–77]
Service Rules for the 698–746, 747–
762, and 777–792 Bands
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the Federal
Communications Commission
(Commission) describes the process for
relicensing 700 MHz spectrum that is
returned to the Commission’s inventory
SUMMARY:
4. The authority citation for part 52
continues to read as follows:
■
Final NOX ozone
season budget
(2007 and thereafter)
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]]>Agencies
[Federal Register Volume 84, Number 46 (Friday, March 8, 2019)]
[Rules and Regulations]
[Pages 8422-8443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03854]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2018-0595; FRL-9990-33-OAR]
RIN 2060-AU08
Emissions Monitoring Provisions in State Implementation Plans
Required Under the NOX SIP Call
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is revising some of
the regulations that were originally promulgated in 1998 to implement
the NOX SIP Call. The revisions give covered states greater
flexibility concerning the form of the nitrogen oxides (NOX)
emissions monitoring requirements that the states must include in their
state implementation plans (SIPs) for certain emissions sources. Other
revisions remove obsolete provisions and clarify the remaining
regulations but do not substantively alter any current regulatory
requirements.
DATES: This rule is effective as of March 8, 2019.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2018-0595. All documents in the docket are listed on the
https://www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available
electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: David Lifland, Clean Air Markets
Division, Office of Atmospheric Programs, U.S. Environmental Protection
Agency, MC 6204M, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
202-343-9151; lifland.david@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview of the Action
A. Summary of Amendments and Estimated Impacts
B. Potentially Affected Entities
C. Statutory Authority
II. Summary of the Proposal
A. Background
B. Proposed Amendment to Emissions Monitoring Requirements
C. Other Proposed Amendments
D. Public Comment Process
III. Response to Comments
A. Emissions Monitoring Requirements
B. Emissions Reduction Requirements
C. Baseline Emissions Inventory Table
D. Post-NBTP Transition Requirements
IV. Final Action
V. Impacts of the Amendments
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
[[Page 8423]]
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer Advancement Act
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act
M. Determinations Under CAA Section 307(b) and (d)
I. Overview of the Action
This section provides an overview of the action, including a
summary of the amendments and their estimated impacts as well as
information concerning potentially affected entities and statutory
authority.
Section II provides a summary of the proposal for this action,
including background information. In section III, EPA summarizes and
responds to comments received on the proposal. EPA's final action is
set forth in section IV, and section V discusses the estimated impacts
of the amendments. Section VI addresses reviews required under various
statutes and executive orders as well as determinations concerning
applicable rulemaking and judicial review provisions.
A. Summary of Amendments and Estimated Impacts
On September 27, 2018, EPA published in the Federal Register a
proposal \1\ to amend the existing NOX SIP Call regulations
\2\ to allow states to amend their SIPs, for NOX SIP Call
purposes only, to establish emissions monitoring requirements for
certain units other than requirements to monitor according to 40 CFR
part 75. This action finalizes the amendment generally as proposed,
with minor further revisions discussed in section IV of this document.
Ultimately, such alternate monitoring requirements could be made
available to sources through states' revisions to their SIPs, with
consequent potential reductions in some units' monitoring costs. The
group of units affected under the SIPs adopted to meet the
NOX SIP Call comprises both existing and new electricity
generating units (EGUs) as well as certain other existing and new
industrial units (non-EGUs). Within this overall group, the set of
existing units potentially affected by the amendment includes
approximately 285 non-EGU boilers and combustion turbines and
approximately 30 EGUs--specifically, combustion turbines that are
considered large EGUs for NOX SIP Call purposes and that are
not required to monitor according to part 75 under other programs such
as the Acid Rain Program or a Cross-State Air Pollution Rule (CSAPR)
trading program. States, not EPA, will decide whether to revise the
monitoring requirements in their SIPs as allowed under this amendment,
and EPA lacks complete information on the remaining monitoring
requirements that the sources would face if a state decides to make
such revisions, leaving considerable uncertainty regarding the amount
of monitoring cost reductions that may occur. However, using
information from comments and assumptions concerning the sources'
remaining monitoring requirements, EPA estimates annual monitoring cost
reductions from this action in the range of $1.2 million to $3.3
million. Because this action is not expected to cause any change in
emissions or air quality, the monitoring cost reductions will
constitute net benefits from the action.
---------------------------------------------------------------------------
\1\ Emissions Monitoring Provisions in State Implementation
Plans Required Under the NOX SIP Call, Proposed Rule, 83
FR 48751 (Sept. 27, 2018).
\2\ Finding of Significant Contribution and Rulemaking for
Certain States in the Ozone Transport Assessment Group Region for
Purposes of Reducing Regional Transport of Ozone (NOX SIP
Call), 63 FR 57356 (Oct. 27, 1998) (codified in relevant part at 40
CFR 51.121 and 51.122). Amendments to the NOX SIP Call
regulations made between issuance and implementation are described
in the proposal for this action, 83 FR at 48755 & nn.11-15.
---------------------------------------------------------------------------
In addition, EPA is eliminating several obsolete provisions of the
NOX SIP Call regulations that no longer have any substantive
effect on the regulatory requirements faced by states or sources and is
making clarifying amendments--all of which EPA considers non-
substantive--to the remaining regulations. The additional amendments
also include updates to several cross-references in the CSAPR
regulations that refer to an obsolete provision of the NOX
SIP Call regulations. The specific additional amendments discussed in
the proposal are identified in section II.C. of this document, and the
amendments are being finalized generally as proposed, with minor
further revisions discussed in section IV of this document.
B. Potentially Affected Entities
This action does not apply directly to any emissions sources but
instead amends existing regulatory requirements applicable to the SIPs
of Alabama, Connecticut, Delaware, Illinois, Indiana, Kentucky,
Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York,
North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Virginia, West Virginia, and the District of Columbia. If an
affected jurisdiction chooses to revise its SIP in response to these
amendments, sources in the jurisdiction could be indirectly affected if
they are subject to emissions monitoring requirements for purposes of
the NOX SIP Call and are not independently subject to
comparable requirements under another program such as the Acid Rain
Program or a CSAPR trading program. Generally, the types of sources
that could be indirectly affected are fossil fuel-fired boilers and
stationary combustion turbines with heat input capacities over 250
million British thermal units per hour (mmBtu/hr) or serving
electricity generators with capacities over 25 megawatts (MW). Sources
meeting these criteria operate in a variety of industries, including
but not limited to the following:
------------------------------------------------------------------------
Examples of industries with
NAICS * code potentially affected sources
------------------------------------------------------------------------
221112........................... Fossil fuel-fired electric power
generation.
3112............................. Grain and oilseed milling.
3221............................. Pulp, paper, and paperboard mills.
3241............................. Petroleum and coal products
manufacturing.
3251............................. Basic chemical manufacturing.
3311............................. Iron and steel mills and ferroalloy
manufacturing.
6113............................. Colleges, universities, and
professional schools.
------------------------------------------------------------------------
* North American Industry Classification System.
C. Statutory Authority
Statutory authority for this action is provided by Clean Air Act
(CAA) sections 110 and 301, 42 U.S.C. 7410 and 7601, which also
provided statutory authority for issuance of the existing
NOX SIP Call regulations that EPA is amending in this
action.\3\
---------------------------------------------------------------------------
\3\ See, e.g., 63 FR at 57366, 57479.
---------------------------------------------------------------------------
II. Summary of the Proposal
This section summarizes the proposal for this action. Section II.A.
repeats some of the background information from the proposal. Section
II.B. addresses the proposed amendment to the NOX SIP Call's
emissions monitoring requirements, reiterating the proposed rationale
and summarizing the proposal's discussion of projected impacts.
Sections II.C. and II.D. summarize the remaining proposed amendments
and describe the public comment process.
A. Background
Under the CAA, EPA establishes and periodically revises national
ambient air quality standards (NAAQS) for certain pollutants, including
ground-level ozone, while states have primary responsibility for
attaining the NAAQS through the adoption of emission control measures
in their SIPs. Under CAA section 110(a)(2)(D)(i)(I), 42 U.S.C.
7410(a)(2)(D)(i)(I), often called the ``good neighbor'' provision, each
state is
[[Page 8424]]
required to include provisions in its SIP prohibiting emissions that
``will . . . contribute significantly to nonattainment in, or interfere
with maintenance by, any other State with respect to any [NAAQS].'' In
1998, EPA issued the NOX SIP Call (the Rule) identifying
good neighbor obligations with respect to the 1979 1-hour ozone NAAQS
and calling for SIP revisions to address those obligations.\4\ The
Rule's regulatory text was codified at 40 CFR 51.121, addressing the
required SIP revisions, and 40 CFR 51.122, addressing states' periodic
reporting requirements. As implemented, the Rule required 20 states and
the District of Columbia \5\ to revise their SIPs to reduce their
sources' emissions of NOX, an ozone precursor, during the
May-September ``ozone season'' starting in 2004.
---------------------------------------------------------------------------
\4\ 63 FR 57356. As described in the proposal for this action,
an amendment to the NOX SIP Call made before the Rule's
implementation indefinitely stayed the additional findings of good
neighbor obligations with respect to the 1997 8-hour ozone NAAQS
that were included in the Rule as issued. See 83 FR at 48755.
\5\ The Rule as implemented applies to Connecticut, Delaware,
Illinois, Indiana, Kentucky, Maryland, Massachusetts, New Jersey,
New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South
Carolina, Tennessee, Virginia, and West Virginia; portions of
Alabama, Michigan, and Missouri; and the District of Columbia. For
simplicity, this document often refers to all the jurisdictions with
obligations under the CAA and the NOX SIP Call, including
the District of Columbia, as ``states.''
---------------------------------------------------------------------------
To implement the NOX SIP Call's emissions reduction
requirements, EPA promulgated a ``budget'' for the statewide seasonal
NOX emissions from each covered state. Each state's
emissions budget was calculated as the state's projected 2007 pre-
control or ``baseline'' emissions inventory minus the state's required
emissions reduction. The Rule did not mandate that states follow any
particular approach for achieving their required emissions reductions.
Instead, states retained wide discretion regarding which sources in
their states to control and what control measures to employ. Each state
was simply required to demonstrate that whatever control measures it
chose to include in its SIP revision would be sufficient to ensure that
projected 2007 statewide seasonal NOX emissions from its
sources would not exceed its emissions budget.
Besides the general flexibility given to states regarding the
choices of sources and control measures, the NOX SIP Call
included additional provisions designed to increase compliance
flexibility. Most notably, the Rule allowed states to adopt interstate
emission allowance trading programs as control measures to accomplish
some or all of the required emissions reductions. EPA also provided a
model rule for an EPA-administered interstate trading program--the
NOX Budget Trading Program (NBTP)--that would meet all the
Rule's SIP approval criteria for a trading program for two types of
sources: Fossil fuel-fired EGU boilers and combustion turbines serving
electricity generators with capacity ratings greater than 25 MW (large
EGUs), and fossil fuel-fired non-EGU boilers and combustion turbines
with heat input ratings greater than 250 mmBtu/hr (large non-EGU
boilers and turbines).
While generally oriented toward providing states and sources with
compliance flexibility, the NOX SIP Call also included two
conditional provisions that would become mandatory SIP requirements for
large EGUs and large non-EGU boilers and turbines if states chose to
include any emission control measures for these types of sources in
their SIP revisions. First, under Sec. 51.121(f)(2), any control
measures imposed on these types of sources would be required to include
enforceable limits on the sources' seasonal NOX mass
emissions. These limits could take several forms, including either
limits on individual sources or collective limits on the group of all
such sources in a state. Second, under Sec. 51.121(i)(4), these
sources would be required to monitor and report their seasonal
NOX mass emissions according to the provisions of 40 CFR
part 75.\6\ One way a state could meet these two SIP requirements was
to adopt the NBTP, because the NBTP included provisions addressing both
requirements and was expressly designed as a potential control measure
for these types of sources.
---------------------------------------------------------------------------
\6\ For brevity, this document generally refers to the
monitoring, recordkeeping, and reporting requirements in 40 CFR part
75 as ``part 75 monitoring requirements.''
---------------------------------------------------------------------------
All the jurisdictions subject to the NOX SIP Call as
implemented ultimately chose to adopt the NBTP for large EGUs and large
non-EGU boilers and turbines as part of their required SIP revisions.
By adopting control measures applicable to large EGUs and large non-EGU
boilers and turbines into their SIPs, all the affected jurisdictions
triggered the obligations for their SIPs to include enforceable mass
emissions limits and part 75 monitoring requirements for these types of
sources. These requirements have remained in effect despite the
discontinuation of the NBTP following the 2008 ozone season.\7\
---------------------------------------------------------------------------
\7\ Some states expanded NBTP applicability under their SIPs to
include additional sources such as process heaters, cement kilns,
and smaller EGUs. Unlike large EGUs and large non-EGU boilers and
turbines, the additional sources are not subject to the
NOX SIP Call's ongoing obligation under Sec.
51.121(i)(4) for SIPs to include part 75 monitoring requirements and
therefore are not affected by the amendments being finalized in this
action.
---------------------------------------------------------------------------
The NBTP was implemented starting in 2003 for sources in several
northeastern states and in 2004 for sources in most of the remaining
NOX SIP Call states. Missouri sources joined the NBTP in
2007, and EPA continued to administer the NBTP through the 2008 ozone
season. Since the 2008 ozone season, EPA has replaced the NBTP with a
series of three similar interstate emission allowance trading programs
designed to address eastern states' good neighbor obligations with
respect to ozone NAAQS more recent than the 1979 1-hour ozone NAAQS.
The NBTP's three successor seasonal NOX trading programs
were established under the Clean Air Interstate Rule (CAIR),\8\ which
was remanded to EPA for replacement; \9\ the original CSAPR,\10\ which
replaced CAIR; and most recently the CSAPR Update.\11\ The seasonal
NOX trading programs established under CAIR and the original
CSAPR were both designed to address the 1997 8-hour ozone NAAQS, while
the trading program established under the CSAPR Update was designed to
address the 2008 8-hour ozone NAAQS. The CAIR seasonal NOX
trading program operated from 2009 through 2014, the original CSAPR
seasonal NOX trading program started operating in 2015,\12\
and the CSAPR Update trading program started operating in 2017.
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\8\ 70 FR 25162 (May 12, 2005) (SIP requirements); 71 FR 25328
(Apr. 28, 2006) (parallel Federal implementation plan requirements).
\9\ North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008),
modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008).
\10\ 76 FR 48208 (Aug. 8, 2011); see also 76 FR 80760 (Dec. 27,
2011) (adding seasonal NOX emissions reduction
requirements for sources in five states), 79 FR 71663 (Dec. 3, 2014)
(tolling implementation dates by three years).
\11\ 81 FR 74504 (Oct. 26, 2016). Consolidated challenges to the
CSAPR Update are pending in Wisconsin v. EPA, No. 16-1406 (D.C. Cir.
argued Oct. 3, 2018).
\12\ The original CSAPR seasonal NOX trading program
remains in effect for sources in Georgia but after 2016 has not
applied to sources in any state subject to the NOX SIP
Call as implemented.
---------------------------------------------------------------------------
For purposes of this action, the most important difference between
the NBTP and its successor seasonal NOX trading programs
concerns the types of sources participating in the various programs. As
discussed above, the NBTP was designed to cover both large EGUs and
large non-EGU boilers and turbines. In contrast, by default the three
successor trading programs have covered only units considered EGUs
under those
[[Page 8425]]
programs, which generally means all units that would be classified as
NOX SIP Call large EGUs as well as a small subset of the
units that would be classified as NOX SIP Call large non-EGU
boilers and turbines.\13\ Under the CAIR seasonal NOX
trading program, most NOX SIP Call states exercised an
option to expand program applicability to include all their
NOX SIP Call large non-EGU boilers and turbines, but the
option was eliminated under the original CSAPR seasonal NOX
trading program and no state has exercised the restored option made
available under the CSAPR Update trading program. Consequently, at
present most NOX SIP Call large non-EGU boilers and turbines
do not participate in a successor trading program to the NBTP.
---------------------------------------------------------------------------
\13\ For example, under the NOX SIP Call as
implemented, a unit qualifying as exempt from the Acid Rain Program
under the provision for cogeneration units at 40 CFR 72.6(b)(4)
would be classified as a non-EGU, but in some instances such a unit
could be covered under the CAIR, original CSAPR, and CSAPR Update
trading programs as an EGU.
---------------------------------------------------------------------------
The second relevant difference between the NBTP and its successor
trading programs concerns the various programs' geographic areas of
coverage. At present, EGUs in fourteen NOX SIP Call states
participate in the CSAPR Update trading program.\14\ EGUs in the
remaining seven NOX SIP Call jurisdictions do not currently
participate in a successor trading program to the NBTP, although most
such units are subject to other EPA programs with comparable part 75
monitoring requirements.\15\
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\14\ The CSAPR Update applies to EGUs in the NOX SIP
Call states of Alabama, Illinois, Indiana, Kentucky, Maryland,
Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania,
Tennessee, Virginia, and West Virginia as well as eight additional
states that are not subject to the NOX SIP Call as
implemented.
\15\ EGUs in the NOX SIP Call jurisdictions of
Connecticut, Delaware, Massachusetts, North Carolina, Rhode Island,
South Carolina, and the District of Columbia are not subject to the
CSAPR Update. All NOX SIP Call EGUs in North Carolina and
South Carolina are required to monitor NOX mass emissions
according to part 75 under a CSAPR trading program for annual
NOX emissions, and most NOX SIP Call EGUs in
the remaining jurisdictions are required to monitor NOX
emission rate and heat input rate according to part 75 under the
Acid Rain Program.
---------------------------------------------------------------------------
In the CAIR rulemaking, EPA amended the NOX SIP Call
regulations both to provide that the NBTP would be discontinued upon
implementation of the CAIR seasonal NOX trading program and
to require states to adopt replacement control measures into their SIPs
to ensure continued achievement of the portions of their NOX
SIP Call emissions reduction requirements that had been met through the
NBTP.\16\ As noted above, notwithstanding the discontinuation of the
NBTP, the NOX SIP Call's requirements for enforceable mass
emissions limits and part 75 monitoring have continued to apply to
large EGUs and large non-EGU boilers and turbines in all affected
states. Since the CAIR rulemaking, EPA has worked with NOX
SIP Call states individually to assist them in revising their SIPs to
meet these ongoing NOX SIP Call requirements, whether
through use of the NBTP's successor trading programs (to the extent
those options have been available) or through other replacement control
measures.
---------------------------------------------------------------------------
\16\ 40 CFR 51.121(r); see also 40 CFR 51.123(bb) and
52.38(b)(10)(ii) (authorizing use of CAIR and CSAPR Update seasonal
NOX trading programs as NBTP replacement control measures
for large non-EGU boilers and turbines).
---------------------------------------------------------------------------
Under CAA section 107(d)(3)(E), 42 U.S.C. 7407(d)(3)(E),
redesignation of an area to attainment of a NAAQS requires a
determination that the improvement in air quality is due to ``permanent
and enforceable'' emissions reductions. At least 140 EPA final actions
redesignating areas in 20 states to attainment with an ozone NAAQS or a
fine particulate matter (PM2.5) NAAQS--because
NOX is a precursor to PM2.5 as well as ozone--
have relied in part on the NOX SIP Call's emissions
reductions.\17\ In this action, to avoid any possible argument that
amendments to the NOX SIP Call might result in a lessening
of permanence and enforceability that could threaten continued reliance
on the Rule's emissions reductions to support other actions, EPA is not
substantively amending the Rule's key provisions supporting these
attributes. These key provisions include the statewide emissions
budgets and general enforceability and monitoring requirements as well
as the requirements for enforceable limits on seasonal NOX
mass emissions from large EGUs and large non-EGU boilers and
turbines.\18\ As discussed in section II.B. of this document, EPA
believes that under current circumstances, the amendment to allow
states to establish alternate monitoring requirements for large EGUs
and large non-EGU boilers and turbines does not undermine assurance
that the Rule's required emissions reductions will continue to be
achieved and therefore does not pose a risk to the permanence and
enforceability of the emissions reductions.
---------------------------------------------------------------------------
\17\ See Redesignation Actions Relying on NOX SIP
Call Emissions Reductions (August 2018), available in the docket for
this action. EPA notes that reliance on the Rule's emissions
reductions as permanent and enforceable for purposes of
redesignation actions has been upheld by multiple courts of appeals.
Sierra Club v. EPA, 774 F.3d 383, 397-99 (7th Cir. 2014); Sierra
Club v. EPA, 793 F.3d 656, 665-68 (6th Cir. 2015).
\18\ EPA notes that the implementation rules for both the 1997
ozone NAAQS and the 2008 ozone NAAQS have required that the
NOX SIP Call in general and states' emissions budgets in
particular will continue to apply after revocation of the previous
NAAQS and have also made clear that any modifications to control
requirements approved into a SIP pursuant to the Rule are subject to
anti-backsliding requirements under CAA section 110(l), 42 U.S.C.
7410(l). See 40 CFR 51.905(f), 51.1105(e).
---------------------------------------------------------------------------
B. Proposed Amendment to Emissions Monitoring Requirements
The only substantive amendment to the NOX SIP Call
regulations proposed for this action concerns emissions monitoring
requirements. Under 40 CFR 51.121(i)(4) of the regulations as
originally promulgated, where a state's SIP revision contains control
measures for large EGUs or large non-EGU boilers and turbines, the SIP
must also require part 75 monitoring for these types of sources. As
discussed in section II.A. of this document, all NOX SIP
Call states triggered this requirement by including control measures in
their SIPs for these types of sources, and the requirement has remained
in effect despite the discontinuation of the NBTP after the 2008 ozone
season. For this action, EPA proposed to amend the provision at Sec.
51.121(i)(4) to make the inclusion of part 75 monitoring requirements
for these sources in SIPs optional rather than mandatory for
NOX SIP Call purposes.\19\ The SIPs would still need to
include some form of emissions monitoring requirements for these types
of sources, consistent with the Rule's general enforceability and
monitoring requirements at Sec. 51.121(f)(1) and (i)(1), respectively,
but states would no longer be required to satisfy these general Rule
requirements specifically through the adoption of part 75 monitoring
requirements. EPA noted that finalization of this proposed amendment
would not in itself eliminate part 75 monitoring requirements for any
sources but would enable EPA to approve SIP submittals replacing these
requirements for NOX SIP Call purposes with other forms of
monitoring requirements.
---------------------------------------------------------------------------
\19\ The amendment would apply only for NOX SIP Call
purposes and would not authorize states to create exceptions to any
part 75 monitoring requirements that might apply to a source under a
different legal authority.
---------------------------------------------------------------------------
In the proposal, EPA discussed the following rationale for the
proposed amendment to emissions monitoring requirements.\20\ The
condition that SIPs must include part 75 monitoring requirements was
established based on
[[Page 8426]]
determinations that, first, a requirement for mass emissions limits for
large EGUs and large non-EGU boilers and turbines was feasible and
provided the greatest assurance that the NOX SIP Call's
required emissions reductions would be achieved, and second, part 75
monitoring was a feasible and cost-effective way to ensure compliance
with the mass emissions limits for these sources.\21\ (Part 75
monitoring requirements were also established independently as an
essential element of the now-discontinued NBTP, which like EPA's other
emission allowance trading programs could function only with timely
reporting of consistent, quality-assured mass emissions data by all
participating units.) To ensure that the NOX SIP Call's
emissions reductions can continue to be relied on as permanent and
enforceable for purposes of other actions, EPA did not propose to amend
the Rule's existing requirements regarding enforceable mass emissions
limits for these sources. However, EPA proposed the view that under
current circumstances, allowing states to establish alternate
monitoring requirements for large EGUs and large non-EGU boilers and
turbines would not pose a risk to the permanence and enforceability of
the Rule's emissions reductions.
---------------------------------------------------------------------------
\20\ 83 FR at 48757-58.
\21\ See 63 FR at 57451-52.
---------------------------------------------------------------------------
The first relevant current circumstance EPA discussed was the
substantial margins by which all NOX SIP Call states are now
complying with the portions of their statewide emissions budgets
assigned to large EGUs and large non-EGU boilers and turbines. As shown
in Table 1 of the proposal, which is reproduced without change as Table
1 of this document, in 2017, seasonal NOX emissions from
sources that would have been subject to the NBTP across the region
covered by the NOX SIP Call were approximately 200,000 tons,
which is less than 40% of the sum of the relevant portions of the
statewide final NOX budgets. Table 1 also shows that no
state's reported emissions exceeded 71% of the relevant portion of its
budget.\22\ As noted by EPA, these comparisons demonstrate that the
Rule's required emissions reductions would continue to be achieved even
with substantial increases in emissions from current levels. EPA also
observed that the possibility of such large increases in emissions is
remote because of requirements under other state and Federal
environmental programs \23\ and changes to the fleet of affected
sources since 2008.\24\
---------------------------------------------------------------------------
\22\ Reported 2017 emissions from Missouri sources were just
over 70% of the relevant portion of the state's budget.
\23\ For example, for the 11 states covered in their entirety
under both programs--Illinois, Indiana, Kentucky, Maryland, New
Jersey, New York, Ohio, Pennsylvania, Tennessee, Virginia, and West
Virginia--EGU emissions budgets under the current CSAPR Update
seasonal NOX trading program range from 17% to 66% of the
portions of the respective states' NOX SIP Call statewide
budgets based on EGU emissions. Compare 40 CFR 97.810(a) (CSAPR
Update budgets) with 65 FR 11222, 11225 (Mar. 2, 2000) (EGU-based
portions of NOX SIP Call statewide budgets).
\24\ For example, sources responsible for over 40% of 2008
emissions reported under the NBTP have either ceased operation or
switched from coal combustion to gas or oil combustion since 2008.
See Post-2008 Changes to Units Reporting Under the NOX
Budget Trading Program (August 2018), available in the docket for
this action.
Table 1--2017 Emissions and Relevant Emissions Budget Amounts by State
----------------------------------------------------------------------------------------------------------------
NOX emissions during the 2017 ozone season (tons) from: Portion of
---------------------------------------------------------------- statewide
NBTP sources Other NBTP Other NBTP emissions
State also subject large EGUs and sources budget
to part 75 large non-EGU subject to Total for all assigned to
under other boilers and part 75 under NBTP sources NBTP sources
programs turbines NSC SIPs (tons)
----------------------------------------------------------------------------------------------------------------
Alabama (part).................. 7,166 1,911 0 9,077 25,497
Connecticut..................... 380 10 39 430 4,477
Delaware........................ 324 511 0 835 5,227
District of Columbia............ 0 20 0 20 233
Illinois........................ 13,038 1,493 0 14,531 35,557
Indiana......................... 20,396 1,201 823 22,419 55,729
Kentucky........................ 19,978 75 0 20,053 36,109
Maryland........................ 2,422 516 0 2,939 15,466
Massachusetts................... 734 113 32 879 12,861
Michigan (part)................. 14,580 205 0 14,785 31,247
Missouri (part)................. 9,486 0 0 9,486 13,459
New Jersey...................... 1,646 310 0 1,956 13,022
New York........................ 4,062 941 611 5,614 41,385
North Carolina.................. 16,352 1,689 0 18,041 34,703
Ohio............................ 20,012 993 0 21,005 49,842
Pennsylvania.................... 13,616 837 0 14,453 50,843
Rhode Island.................... 193 0 0 193 936
South Carolina.................. 5,030 1,043 0 6,074 19,678
Tennessee....................... 7,785 2,350 0 10,135 31,480
Virginia........................ 7,462 589 0 8,051 21,195
West Virginia................... 18,187 276 0 18,463 29,507
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Total....................... 182,849 15,084 1,505 199,438 528,453
----------------------------------------------------------------------------------------------------------------
Data sources: Emissions data are from EPA's Air Markets Program Database, https://ampd.epa.gov/ampd. In a few
cases where 2017 data are not available, the most recent available data are used instead. Budget data are from
The NOX Budget Trading Program: 2008 Emission, Compliance, and Market Analyses (July 2009) at 14, available in
the docket for this action.
The second relevant current circumstance EPA discussed was that
even with the proposed amendment, part 75 monitoring requirements would
remain in effect for most NOX SIP Call large EGUs pursuant
to other regulatory requirements, including the Acid Rain Program and
the CSAPR trading programs, and these large EGUs are responsible for
most of the collective emissions of NOX SIP Call large EGUs
and large non-EGU boilers and turbines.
[[Page 8427]]
Table 1 shows the portions of the reported seasonal NOX
emissions for each state reported by units that would continue to be
subject to part 75 monitoring requirements even if the proposed
amendments are finalized and all states choose to revise their
SIPs.\25\ As indicated in the table, the sources that would continue to
report under part 75 account for over 90% of the overall emissions. If
a state chooses to revise its SIP to no longer require part 75
monitoring for some sources, then under Sec. 51.121(f)(1) and (i)(1)--
which EPA did not propose to amend--the SIP would still have to include
provisions requiring all large EGUs and large non-EGU boilers and
turbines subject to control measures for purposes of the NOX
SIP Call to submit other forms of information on their seasonal
NOX emissions sufficient to ensure compliance with the
control measures. EPA stated the belief that in the context of the
substantial compliance margins discussed above, and given the continued
availability of part 75 monitoring data from sources responsible for
most of the relevant emissions, emissions data from the remaining
sources submitted pursuant to other forms of monitoring requirements
can provide sufficient assurance that the Rule's overall required
emissions reductions will continue to be achieved.
---------------------------------------------------------------------------
\25\ Although the Acid Rain Program does not require units to
report NOX mass emissions specifically, NOX
mass emissions can be calculated from other part 75 data that are
required to be reported.
---------------------------------------------------------------------------
In the proposal's discussion of projected impacts,\26\ EPA stated
the expectation that the proposed amendments, if finalized, would have
no impact on emissions or air quality because no changes would be made
to any of the NOX SIP Call's existing regulatory
requirements related to statewide emissions budgets or enforceable mass
emissions limits for large EGUs and large non-EGU boilers and turbines.
---------------------------------------------------------------------------
\26\ 83 FR at 48761-62.
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With respect to cost impacts, EPA expressed the expectation that,
if the proposed amendment to monitoring requirements is finalized, at
least some states would revise their SIPs to establish alternate
monitoring requirements and at least some sources would experience
reductions in monitoring costs. EPA indicated that there were
approximately 310 existing large EGUs and large non-EGU boilers and
turbines in NOX SIP Call states that could potentially be
affected by the proposed amendment to monitoring requirements if all
affected states were to revise their SIPs. The discussion also
indicated how many of these units used each of the principal monitoring
methodologies allowed under part 75 according to the monitoring plans
submitted for the units. Specifically, EPA noted that approximately 90
units used monitoring methodologies involving continuous emissions
monitoring systems (CEMS) to measure both stack gas flow rate and the
concentrations of certain gases in the effluent gas stream,
approximately 140 units used methodologies involving gas concentration
CEMS but not stack gas flow rate CEMS, and approximately 80 units used
non-CEMS methodologies. The proposal noted that it was not possible to
predict the amount of the monitoring cost reductions that might
eventually result from finalization of the proposed monitoring
amendment because states, not EPA, would decide whether to revise the
monitoring requirements in their SIPs and because EPA lacks information
on the remaining monitoring requirements that sources would face.
However, EPA qualitatively discussed how alternate monitoring
requirements could result in reduced costs for units currently using
the various part 75 monitoring methodologies. For example, some units
that currently use part 75 monitoring methodologies involving the use
of stack gas flow rate CEMS might be allowed to discontinue use of
those CEMS, some units that currently use part 75 monitoring
methodologies involving the use of gas concentration CEMS might be
allowed to discontinue use of those CEMS, and some units continuing to
use one or both types of CEMS might be allowed to perform less
extensive data reporting or less comprehensive quality-assurance
testing. EPA expressed the expectation that units currently using non-
CEMS methodologies under part 75 would experience little or no
reduction in monitoring costs as a result of the proposed monitoring
amendment.
C. Other Proposed Amendments
In addition to the proposed amendment to the NOX SIP
Call's monitoring requirements discussed in section II.B. of this
document, EPA proposed to make several further amendments to the Rule's
regulatory text at 40 CFR 51.121 and 51.122 to remove obsolete
provisions and clarify the remaining provisions. The proposed revisions
also included updates to several cross-references in the CSAPR
regulations at 40 CFR 52.38 that refer to an obsolete provision of the
NOX SIP Call regulations. Although EPA proposed to remove or
modify numerous provisions of the NOX SIP Call
regulations,\27\ the proposal explained that the additional amendments
were not intended to substantively alter any currently effective
regulatory requirements. Briefly, EPA proposed to:
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\27\ A redline-strikeout document showing the text of 40 CFR
51.121 and 51.122 with the amendments adopted in this action, which
include all the proposed amendments to the NOX SIP Call
regulations with the further revisions discussed in section IV of
this document, is available in the docket for this action.
---------------------------------------------------------------------------
Rescind and remove the stayed and superseded findings of
good neighbor obligations with respect to the 1997 8-hour ozone NAAQS
at Sec. 51.121(a)(2), remove Sec. 51.121(q) staying the now-rescinded
findings, and remove obsolete related language in Sec. 51.121(c)(1)
and (2);
Clarify the expression of Phase I and existing final
emissions reduction requirements by removing the table of required
incremental Phase II emissions reduction amounts at Sec. 51.121(e)(3),
adding a column of Phase I budget amounts to the existing table of
final budget amounts in Sec. 51.121(e)(2)(i), revising the definitions
of ``Phase I SIP submission'' and ``Phase II SIP submission'' at Sec.
51.121(a)(3)(i) and (ii), and making related revisions at Sec.
51.121(b)(1) introductory text and (b)(1)(i);
Remove Sec. 51.121(e)(4), which governs the former
compliance supplement pool;
Remove Sec. 51.121(e)(5), which sets forth a one-time
process for revising the emissions inventories and budgets published as
part of the original Rule;
Remove Sec. 51.121(g)(2)(ii), which contains an obsolete
table of baseline emissions inventory information originally intended
to help states prepare their required SIP revisions;
Remove Sec. 51.121(p) and (b)(2), which authorize the use
of the former NBTP and other potential interstate trading programs,
respectively, as compliance options;
Make clarifying revisions to Sec. 51.121(r)(2), which
sets forth the post-NBTP transition requirements;
Remove Sec. 51.121(d)(1), which contains obsolete
deadlines for Phase I and Phase II SIP submissions, and Sec.
51.121(d)(2), which contains obsolete or duplicative procedural
provisions concerning the completeness and format of SIP submissions;
Remove or update obsolete cross-references in the
NOX SIP Call regulations at Sec. Sec. 51.121(b)(1)(i),
(g)(2)(i) and (r)(1) and (2) and 51.122(c)(1)(ii) and in the CSAPR
regulations at
[[Page 8428]]
Sec. 52.38(b)(8)(ii), (b)(8)(iii)(A)(2), (b)(9)(ii), and
(b)(9)(iii)(A)(2); and
Make clarifying editorial revisions to Sec. 51.121
heading, (b)(1)(ii), (e)(2)(ii)(B) and (E), (f)(2)(i)(B), (f)(2)(ii),
(h), (i)(2),(3), and (5), (l)(1) and (2), (m), (n), and (o).
These proposed further amendments as well as EPA's supporting
rationales are fully discussed in the proposal.\28\ The discussions in
the proposal are incorporated herein and are not summarized further in
this document except as necessary to respond to comments in sections
III.B. through III.D of this document.
---------------------------------------------------------------------------
\28\ 83 FR at 48758-61.
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D. Public Comment Process
In the proposal, EPA requested comment on the proposed amendment to
revise the provision at 40 CFR 51.121(i)(4) to allow states to
establish monitoring requirements for large EGUs and large non-EGU
boilers and turbines in their SIPs other than part 75 monitoring
requirements. With respect to the remaining proposed amendments, EPA
made clear that the amendments were not intended to substantively alter
existing regulatory requirements and consequently requested comment
solely on whether the provisions proposed for removal as obsolete in
fact are obsolete and on whether the proposed clarifications in fact
achieve clarification. EPA did not reopen for comment any provisions of
the existing NOX SIP Call regulations except the provisions
that were proposed to be amended as discussed in the proposal \29\ and
did not reopen or request comment on amending any other existing
regulations. The proposal also provided information on how to request a
public hearing. No public hearing was held because none was requested,
and the public comment period closed on October 29, 2018.
---------------------------------------------------------------------------
\29\ Regulatory findings and requirements that EPA did not
propose to substantively amend include (but are not limited to) the
findings of good neighbor obligations with respect to the 1979 1-
hour ozone NAAQS, the requirements for SIPs to contain control
measures addressing these obligations, the final NOX
budgets, the requirement for enforceable limits on seasonal
NOX mass emissions for large EGUs and large non-EGU
boilers and turbines where states have included control measures for
these types of sources in their SIPs, the requirement for states to
adopt replacement control measures into their SIPs to achieve the
emissions reductions formerly projected to be achieved by the NBTP,
and the general requirements for enforceability and for monitoring
of the status of compliance with the control measures adopted.
---------------------------------------------------------------------------
III. Response to Comments
Commenters on the proposal included states, source owners, industry
associations, environmental organizations, and persons commenting as
individuals. The comments are available in the docket for this action.
In this section, EPA summarizes and responds to the comments regarding
the proposed amendments, including requests for clarification. Sections
III.A through III.D. address the proposed amendments to the
NOX SIP Call's provisions concerning emissions monitoring
requirements, emissions reduction requirements, the baseline emissions
inventory table, and post-NBTP transition requirements, respectively.
With respect to the proposed amendments not addressed in sections
III.A. through III.D., EPA received no adverse comments or requests for
clarification. One commenter stated no objection to or supported most
of these amendments individually, and additional commenters expressed
general support for all the amendments removing obsolete provisions or
all the amendments clarifying the remaining regulations. EPA thanks the
commenters for these comments, which are not discussed further in this
document.
Some commenters also submitted comments on topics other than the
NOX SIP Call regulations. These comments are outside the
scope of the proposal and are not discussed further in this document.
A. Emissions Monitoring Requirements
Comment: Most commenters supported the proposed amendment to the
NOX SIP Call's monitoring requirements. These commenters
generally expressed the view that requirements to perform part 75
monitoring solely for purposes of the NOX SIP Call are no
longer necessary to ensure states' compliance with the Rule's emissions
reduction requirements. Most of these commenters also generally
indicated that allowing the use of alternate monitoring requirements
would result in reduced monitoring costs for some sources.
Response: EPA agrees with these comments' support for the proposed
amendment to the Rule's monitoring requirements.
Comment: Some commenters, while generally supporting the proposed
monitoring amendment, stated that EPA should also make further
amendments to the NOX SIP Call's monitoring provisions to
authorize particular forms of alternate monitoring requirements.
Specifically, two commenters requested an amendment providing that, if
a demonstration is made that emissions from a state's large non-EGU
boilers and turbines ``will not exceed the [emissions] budget . . .
established'' for such sources, then those sources would be allowed to
determine reported NOX emissions according to a methodology
based on the use of emission factors--that is, factors approved as
estimates of the quantity of NOX emitted per unit of fuel
combusted--and information on fuel consumption. Another commenter
requested an amendment to authorize methodologies involving the use of
gas concentration CEMS installed and operated in accordance with the
provisions of 40 CFR part 60 in addition to the monitoring methodology
preferred by the two previously mentioned commenters. Another
commenter, without expressing a preference for a particular form of
alternate monitoring requirements, recommended that EPA issue model
rule language for alternate monitoring requirements that would be
approvable in SIP revisions.
Most commenters supporting the proposed monitoring amendment did
not request that EPA make further amendments to identify particular
permissible alternate monitoring requirements or issue model rule
language. One of these commenters specifically recommended that EPA
defer to states' choices regarding alternate monitoring requirements to
the maximum extent allowable.
Response: EPA disagrees with the comments seeking further
amendments to identify specifically permissible alternate monitoring
requirements or issue model rule language and agrees with the comments
supporting the monitoring amendment as proposed without such further
amendments. Upon finalization of the proposed amendment to the
NOX SIP Call regulations making the inclusion of part 75
monitoring requirements in SIPs optional rather than mandatory, states
would have the flexibility to establish their own preferred forms of
monitoring requirements for NOX SIP Call purposes, subject
to the existing general provisions at Sec. 51.121(i) introductory text
and (i)(1) concerning SIP monitoring requirements--provisions that EPA
did not propose to amend. Under the general monitoring provisions,
which closely parallel the longstanding provisions concerning SIP
source surveillance requirements at 40 CFR 51.210 and 51.211, each SIP
revision must provide for monitoring the status of compliance with any
control measures adopted to achieve the NOX SIP Call's
emissions reduction requirements, and the monitoring must be sufficient
to determine whether sources are in compliance with the control
measures. Nothing in these
[[Page 8429]]
general monitoring provisions precludes the commenters' preferred forms
of monitoring requirements where such requirements are shown to be
sufficient to meet these criteria. Thus, the further amendments
suggested by the commenters are unnecessary, because where a state
agrees that the commenters' preferred forms of monitoring requirements
are appropriate, the state may obtain approval of those requirements
simply by submitting a SIP revision that adopts those requirements and
demonstrating that the revision satisfies the general monitoring
provisions and does not conflict with any other applicable CAA
requirement.\30\ For the same reasons that EPA considers it reasonable
under current circumstances to make part 75 monitoring optional rather
than mandatory for NOX SIP Call purposes (as discussed in
section II.B. of this document), EPA also considers it reasonable to
defer to states' choices regarding alternate monitoring requirements
for NOX SIP Call purposes to the extent consistent with the
general monitoring provisions at Sec. 51.121(i) introductory text and
(i)(1).
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\30\ EPA notes that for purposes of demonstrating that the
replacement monitoring requirements would be sufficient to ensure
compliance with the emissions requirements, a state generally would
be able to cite the same types of data that EPA presented in the
proposal to support the proposed amendment to the NOX SIP
Call's monitoring requirements.
---------------------------------------------------------------------------
In addition, EPA believes that inclusion of the suggested further
amendments would not be particularly useful in providing certainty of
the approvability of any specific state regulation implementing the
commenters' preferred forms of monitoring requirements. Notwithstanding
any endorsement of a particular overall monitoring approach that EPA
might include in the regulations, given the need to satisfy the
NOX SIP Call's general monitoring provisions just discussed,
EPA would still need to individually review the specific alternate
monitoring requirements in each SIP revision to support a determination
that the monitoring is sufficient to ensure compliance with the
NOX SIP Call's emissions reduction requirements. For
example, EPA would need to consider whether each regulation contains
adequate provisions to avoid gaps in required monitoring and whether a
regulation following an emission factor approach employs emission
factors that are designed to avoid any bias toward understatement of
emissions. Approval of each SIP revision would also be subject to
notice-and-comment procedures. While in theory EPA could provide
greater certainty of the approvability of certain forms of alternate
monitoring requirements by issuing model rule language, EPA believes
issuance of such language in this instance is neither necessary nor
consistent with EPA's general intent of deferring to states'
preferences regarding alternate monitoring requirements for
NOX SIP Call purposes.
Comment: One commenter stated that amending the NOX SIP
Call regulations to allow sources that currently monitor using CEMS to
switch to alternate monitoring methods would be inconsistent with CAA
section 110(l), 42 U.S.C. 7410(l), known as the ``anti-backsliding''
provision, which prohibits EPA from approving any implementation plan
revision that would interfere with any applicable requirement under the
CAA. The commenter stated that effective and accurate emissions
monitoring is needed to protect against backsliding and that allowing
sources to use monitoring approaches less effective than CEMS
monitoring would be inconsistent with section 110(l) because it would
deprive communities and regulators of timely or reliable emissions
information needed to identify possible violations of emissions
standards and to facilitate enforcement actions.
Response: EPA disagrees with this comment. As a preliminary matter,
EPA notes that CAA section 110(l) applies to EPA actions determining to
approve implementation plan revisions, not other EPA actions that might
affect the matters that are required to be addressed through such
implementation plan revisions. Thus, this action to amend the
NOX SIP Call regulations is not subject to section 110(l).
At the same time, no Agency-issued regulation can negate or otherwise
modify the Congressionally-established prohibition in section 110(l)
against approval of implementation plan revisions that would permit
backsliding. For this reason, notwithstanding the content of any
amendment to the NOX SIP Call regulations finalized in this
action, approval of any SIP submissions made in response to such an
amendment will necessarily still be subject to anti-backsliding
requirements under section 110(l).
Substantively, the proposed amendment to monitoring requirements is
not inconsistent with the purpose of section 110(l) because there is no
reason to expect that a SIP submission seeking only to revise
monitoring requirements for NOX SIP Call purposes would
result in increased emissions or otherwise interfere with any other CAA
requirement, in light of the criteria for approval of such a SIP
submission. That is, the amendments proposed for this action make no
changes to the NOX SIP Call's existing regulatory
requirements related to statewide emissions budgets or enforceable mass
emissions limits for large EGUs and large non-EGU boilers and turbines.
As discussed in response to a previous comment, under Sec. 51.121(i)
introductory text and (i)(1) any alternate monitoring requirements
approved into a SIP for NOX SIP Call purposes must be
sufficient to determine whether the state's sources are in compliance
with the control measures adopted to meet the Rule's emissions
requirements. Given continued implementation of SIP requirements
governing the unchanged amounts of allowable emissions, accompanied by
replacement monitoring requirements sufficient to ensure compliance
with the unchanged emissions requirements, a SIP revision adopted in
response to the proposed amendments would not be expected to result in
increases in emissions that could interfere with other statutory or
regulatory requirements.
The commenter's suggestion that CEMS emissions data provided
pursuant to NOX SIP Call requirements is necessary to
provide emissions information to identify violations of and enforce
other emissions standards is outside the scope of the proposal. The
NOX SIP Call's monitoring requirements were promulgated to
provide monitoring information sufficient to ensure compliance with the
control measures adopted to achieve the Rule's emissions reduction
requirements.\31\ Monitoring requirements to ensure compliance with
other emissions requirements are generally established as part of the
regulations that establish each specific emissions requirement or
through monitoring-focused regulations such as the source surveillance
regulations at 40 CFR part 51, subpart K, or the compliance assurance
monitoring regulations at 40 CFR part 64. Any concerns about the
adequacy of the monitoring requirements established under other
regulations would be properly raised as comments in the actions
promulgating those regulations or as requests for new rulemaking, not
as comments on this action addressing monitoring requirements under the
NOX SIP Call regulations. In the proposal for this action,
EPA did not propose to alter any monitoring requirements under any
[[Page 8430]]
regulations other than the NOX SIP Call regulations.
---------------------------------------------------------------------------
\31\ See 83 FR at 48757.
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Comment: One commenter stated that amending the NOX SIP
Call regulations to allow sources that currently monitor using CEMS to
switch to alternate monitoring methods would be inconsistent with CAA
section 504(b), 42 U.S.C. 7661c(b), which authorizes EPA to prescribe
monitoring requirements for the operating permits that certain sources
are required to obtain pursuant to CAA title V. The commenter cited a
portion of the provision stating that ``continuous emissions monitoring
need not be required if alternative methods are available that provide
sufficiently reliable and timely information for determining
compliance'' and stated that because CEMS monitoring is the most
reliable and timely monitoring method for determining compliance with
NOX emissions limits, it would be unreasonable and
inconsistent with section 504(b) for EPA to allow sources which already
have CEMS equipment installed to use less reliable and timely
monitoring approaches.
Response: EPA disagrees with this comment. While CAA section 504(b)
provides EPA with authority to prescribe monitoring requirements for
title V operating permits, it does not require EPA to exercise that
authority in any particular situation and hence does not impose any
statutory requirement applicable to this action. Further, even
accepting for purposes of argument the comment's premise that the
conditions that would apply to an exercise of EPA's authority under
section 504(b) should also apply to EPA's establishment of monitoring
requirements for NOX SIP Call purposes, the proposed
monitoring amendment is neither unreasonable nor inconsistent with
those conditions. As noted in the comment, section 504(b) explicitly
provides that EPA need not exercise its authority under the section so
as to require CEMS in circumstances where alternate monitoring methods
sufficient to determine compliance are available. In the proposal, EPA
presented recent emissions data and expressed the view that, given the
current substantial margins by which the sets of large EGUs and large
non-EGU boilers and turbines in all NOX SIP Call states are
complying with the relevant portions of the statewide emissions budgets
as well as the fact that most of the relevant emissions will continue
to be monitored according to part 75 under other programs, monitoring
of the remaining emissions using non-part 75 approaches can now provide
sufficient assurance that the Rule's required emissions reductions will
continue to be achieved.\32\ The commenter does not challenge EPA's
assessment. EPA's rationale for proposing the amendment closely
parallels and is fully consistent with the conditions set forth in
section 504(b) for the possible establishment of monitoring
requirements other than CEMS monitoring requirements.
---------------------------------------------------------------------------
\32\ 83 FR at 48757-58.
---------------------------------------------------------------------------
Moreover, neither of the commenter's stated reasons for suggesting
that it would be unreasonable or inconsistent with section 504(b) for
EPA to allow the use of non-CEMS approaches is compelling. The first
stated reason--that CEMS-based monitoring approaches would provide the
most reliable and timely information for determining compliance with
NOX emission limits--is itself inconsistent with the
statutory text which, as just discussed, explicitly indicates the
potential acceptability of non-CEMS monitoring approaches that provide
sufficient reliability and timeliness of information for determining
compliance. The second stated reason--that the sources in question
already have CEMS equipment installed--is incorrect for some of the
sources potentially affected by the monitoring amendment and materially
incomplete for all of them. The set of large EGUs and large non-EGU
boilers and turbines subject to the NOX SIP Call's ongoing
requirements discussed in this document includes both existing and new
units. Some new units that would need to install CEMS equipment if
required to monitor under part 75 might not need to install some or all
of that CEMS equipment if part 75 monitoring were not required for
NOX SIP Call purposes. Further, as discussed in the
proposal, even for a source that already has CEMS equipment installed,
the source's ongoing operating costs to monitor using the installed
CEMS equipment could be higher than the source's ongoing operating
costs if the source were to switch to a non-CEMS monitoring
approach.\33\ Besides the factor of whether non-CEMS monitoring
approaches that provide sufficiently reliable and timely information
for determining compliance are available, the text of section 504(b)
does not specify or limit other factors that EPA may consider when
applying its authority under the section. Thus, it is neither
unreasonable nor inconsistent with section 504(b) for EPA to consider
the likelihood that some sources would incur lower monitoring costs if
allowed to use non-CEMS monitoring approaches for NOX SIP
Call purposes.
---------------------------------------------------------------------------
\33\ 83 FR at 48761. Several commenters also discussed the
significance of the operating and maintenance costs that are
incurred to comply with monitoring requirements. See comments of
North Carolina, Alcoa, Citizens Energy, Council of Industrial Boiler
Owners, and Virginia Manufacturers Association.
---------------------------------------------------------------------------
Comment: One commenter summarized several provisions of CAA section
110(a), 42 U.S.C. 7410(a), concluding with the interpretation that ``a
bedrock requirement for any implementation plan is for emissions
monitoring requisite to ensure attainment and maintenance of the
NAAQS.'' The commenter further stated that the current network of
ambient air quality monitors is ``not robust enough to adequately
assess levels of [ozone and particulate matter] in ambient air'' and
cited a study concerning satellite-based measurements of ambient air
quality. The commenter concluded that ``[g]iven this level of under-
assessment of pollution problems and dramatic[ ] undercounting of
nonattainment issues,'' the proposed amendment to allow states to
establish alternate emissions monitoring requirements ``is wholly
inconsistent with the Clean Air Act's requirements.''
Response: EPA disagrees that the proposed amendment to the
NOX SIP Call regulations would be inconsistent with the
statutory requirements under CAA section 110(a). The comment conflates
the statutory provision authorizing EPA to prescribe emissions
monitoring requirements for individual sources under CAA section
110(a)(2)(F) with the general requirement for ambient air quality
monitoring under CAA section 110(a)(2)(B). Contrary to the commenter's
interpretation of CAA section 110(a), the data used to determine
whether air quality in a given area meets the ozone or PM2.5
NAAQS are the data obtained through the ambient air quality monitoring
network, not the data obtained through source emissions monitoring.
Similarly, assessments of whether the emission control measures in
effect are collectively sufficient to ensure attainment and maintenance
of those NAAQS are made using monitored ambient air quality data or
projected ambient air quality data (which necessarily reflect
projected, not monitored, source emissions data). The amendments
proposed for this action would not alter any regulatory requirements
concerning ambient air quality monitoring, and comments on this topic
are outside the scope of the proposal.
As discussed in response to a previous comment, the originally
intended purpose served by the emissions monitoring requirements under
the NOX SIP Call was to ensure compliance with the control
measures
[[Page 8431]]
adopted to achieve the Rule's emissions reduction requirements, not to
ensure attainment and maintenance of the NAAQS. Amendment of the
NOX SIP Call as proposed for this action would not alter the
provisions at Sec. 51.121(i) introductory text and (i)(1) that set
forth the ongoing general requirement for SIPs to include emissions
monitoring sufficient for this purpose. The amendment would simply
expand the options available to states for addressing the ongoing
general requirement by eliminating the additional specific requirement
at Sec. 51.121(i)(4) for part 75 monitoring by large EGUs and large
non-EGU boilers and turbines. Like the NOX SIP Call's
initial monitoring requirements, the Rule's monitoring requirements as
amended would be fully consistent with CAA section 110(a)(2)(F), which
authorizes EPA to prescribe emissions monitoring and reporting SIP
requirements that may include requirements for ``correlation of such
[emissions] reports by the State agency with any emission limitations
or standards'' established under the CAA.
Comment: One commenter discussed the data EPA presented in the
proposal regarding recent emissions reported by the sources that would
have been subject to the former NBTP. While not disputing EPA's
assessment that the data show that the sources in all states subject to
the NOX SIP Call are currently complying with the assigned
portions of their respective statewide budgets by substantial margins,
the commenter asserted that EPA's reliance on the data to support the
proposed amendment to the Rule's monitoring requirements is misguided.
The commenter questioned the relevance of EPA's assessment that non-
part 75 monitoring by the sources not subject to part 75 monitoring
requirements under other programs could now provide assurance of
continued compliance with the NOX SIP Call's emissions
reduction requirements, suggesting that EPA should instead consider
emissions targets more stringent than the Rule's existing budgets.
With regard to EPA's assessment that the substantial majority of
emissions from large EGUs and large non-EGU boilers and turbines would
continue to be monitored according to part 75 under other programs, the
commenter observed that in certain states, the emissions from the
subset of large EGUs and large non-EGU boilers and turbines potentially
affected by the proposed monitoring amendment can be significant
relative to the emissions from the remaining large EGUs and large non-
EGU boilers and turbines that must continue to monitor their emissions
under part 75 for other programs. Based on this observation, the
commenter concluded that, in these states, allowing the potentially
affected sources to monitor using non-CEMS methodologies ``will notably
degrade the overall NOX emissions data'' from the sets of
large EGUs and large non-EGU boilers and turbines in the states. The
commenter also stated that the total amount of seasonal NOX
emissions from the potentially affected sources--approximately 15,000
tons in the 2017 ozone season--is ``not trivial,'' but is significant
in an absolute sense regardless of its relation to the amount of
emissions from the sources that would still be subject to part 75
monitoring requirements under other programs. Noting that annual
emissions of 100 tons can trigger classification of certain types of
new or modified sources as ``major sources'' under other CAA programs,
the commenter suggested that allowing sources that collectively produce
15,000 tons of seasonal NOX emissions to stop using CEMS is
comparable to excusing as many as 360 major sources from requirements
to use NOX CEMS under other programs.
Response: EPA continues to believe that the emissions data
presented in the proposal provide compelling support for the proposed
amendment to the NOX SIP Call's emissions monitoring
requirements. EPA disagrees with the commenter's suggestion that in
evaluating possible changes to monitoring requirements under the
NOX SIP Call, rather than assessing whether alternate forms
of monitoring would be sufficient to ensure compliance with the Rule's
existing emissions reduction requirements, EPA should instead consider
whether the alternate monitoring requirements would be sufficient to
ensure compliance with more stringent emissions targets. As discussed
in response to a previous comment, the Rule's monitoring requirements
were established to provide monitoring information sufficient to ensure
compliance with the control measures adopted to achieve the Rule's
required emissions reductions, and monitoring requirements to ensure
compliance with other emissions requirements are established in other
regulations. Comments concerning whether the Rule's existing emissions
reductions requirements are sufficiently stringent are outside the
scope of the proposal. EPA did not propose to substantively alter any
regulatory requirements other than the NOX SIP Call's
monitoring requirements.
With regard to the commenter's observations concerning the relative
magnitudes of the respective total amounts of emissions from sources
potentially affected by the proposed monitoring amendment and other
sources in certain states, EPA acknowledges that emissions from the
potentially affected sources comprise larger shares of the total
emissions from large EGUs and large non-EGU boilers and turbines in
some states than others but disagrees with the suggestion that this
fact should foreclose the possibility of allowing monitoring
flexibility for NOX SIP Call purposes. According to the
recent emissions data presented in the proposal \34\ and reproduced in
Table 1 in section II.B. of this document, for six of the states
identified in the comment--Alabama, Maryland, New Jersey, New York,
South Carolina, and Tennessee--the total amount of emissions from the
state's potentially affected sources was from 19% to 30% of the total
amount of emissions from the state's remaining large EGUs and large
non-EGU boilers and turbines, and for the last identified state--
Delaware--the emissions from the state's potentially affected sources
exceeded the emissions from the state's remaining large EGUs and large
non-EGU boilers and turbines. However, even accepting the commenter's
premise that allowing the potentially affected sources in these states
to switch from CEMS methodologies to non-CEMS methodologies would
reduce the accuracy of the total reported amounts of emissions from
large EGUs and large non-EGU boilers and turbines, EPA believes that
the compliance margins in these states are large enough that there
would still be sufficient assurance that the NOX SIP Call's
emissions reduction requirements would continue to be achieved. In each
of these states (as well as all the other states subject to the
NOX SIP Call), the emissions data in Table 1 indicate that,
assuming no increase in the total emissions from the sources in the
state that would continue to be subject to part 75 monitoring under
other programs, the total emissions from the state's potentially
affected sources could increase at least eightfold without causing the
total emissions from the state's large EGUs and large non-EGU boilers
and turbines to exceed the relevant portion of the statewide emissions
budget.\35\ Thus, again
[[Page 8432]]
assuming no increase in the total emissions from the sources in the
state that would continue to be subject to part 75 monitoring under
other programs, even if the total reported emissions data for the set
of potentially affected sources in a state in some future ozone season
were to understate the true emissions data because of less accurate
measurements made using non-CEMS methodologies, in order for the total
reported emissions data to incorrectly indicate compliance for the
state when the true emissions data would indicate non-compliance, the
cumulative measurement errors causing understatement of the true data--
that is, the differences between the reported emissions data values and
the true emissions data values for each source--would have to be
several times larger than the reported data values.\36\ The commenter
does not suggest, and EPA does not believe, that the accuracy of non-
CEMS monitoring approaches would be so poor as to allow such a scenario
to occur. Moreover, if the commenter believes that the specific
alternate monitoring approaches included in a particular state's SIP
revision submitted for EPA's approval would provide insufficiently
accurate data to ensure continued compliance with the control measures
adopted in the state's SIP for NOX SIP Call purposes, the
notice-and-comment process for approval of the SIP revision would
provide an opportunity for the commenter to raise that concern.
---------------------------------------------------------------------------
\34\ See 83 FR at 48758 (Table 1).
\35\ The recent compliance margins for the individual
NOX SIP Call states indicated by the data in Table 1
range from 8.6 times to over 300 times the total reported emissions
from the respective states' sets of potentially affected sources.
For example, for Alabama, the data in Table 1 indicate a compliance
margin of 16,420 tons (25,497-9,077 = 16,420), which is 8.6 times
the reported emissions from the state's potentially affected sources
(16,420 / 1,911 = 8.6).
\36\ For illustrative purposes, this example assumes both that
the collective emissions from potentially affected sources in a
state would increase by the amount necessary to cause non-compliance
for the state and that the alternate monitoring methodologies would
fail to register the increase in emissions. EPA does not believe
these assumptions have a reasonable basis and is using them only to
respond to the commenter's concerns regarding accuracy.
---------------------------------------------------------------------------
With regard to the commenter's observations concerning the
significance of the total seasonal NOX emissions from the
potentially affected sources in an absolute sense, EPA agrees that a
15,000-ton quantity of seasonal NOX emissions is ``not [a]
trivial'' amount but disagrees with the suggestion that this fact
should foreclose the possibility of allowing monitoring flexibility for
NOX SIP Call purposes. The proposed amendments would not
alter any of the Rule's regulatory requirements concerning permissible
amounts of emissions and would not eliminate the requirement for SIPs
to provide for monitoring of the emissions from all large EGUs and
large non-EGU boilers and turbines sufficient to ensure continued
compliance with the Rule's emissions reduction requirements. Nor does
EPA agree that allowing non-CEMS monitoring approaches to be used for
purposes of demonstrating compliance with control measures adopted
under the NOX SIP Call is comparable to excusing major
sources from requirements to monitor using CEMS for other purposes. The
amendments proposed for this action are based on EPA's assessment,
specific to this action, that under current circumstances monitoring
information from some sources other than part 75 monitoring information
can now provide sufficient assurance that the NOX SIP Call's
required emissions reductions will continue to be achieved. Where any
source is required to monitor using CEMS for another purpose under
regulations other than the NOX SIP Call regulations, the
amendments proposed for this action would not affect those
requirements.
Comment: One commenter contended that allowing alternate monitoring
requirements will lead to increased emissions. The commenter observed
that EPA did not know which specific sources might ultimately be
allowed to use alternate monitoring methods. According to the
commenter, EPA had suggested in the proposal that the potential for
increases in pollution resulting from alternate monitoring requirements
is merely uncertain, because EPA would not itself relax the
requirements but would leave that decision to the states, and the
commenter stated it is arbitrary and capricious for EPA to rely on such
a claim of uncertainty to avoid assessing the impacts of increased
pollution. The commenter contended that EPA had suggested in the
proposal that ``systemwide NOX emissions are low enough that
if there are increases in pollution attainment and maintenance [of the
NAAQS] might not be threatened.'' The commenter also discussed ozone
pollution and the harms it causes to human health and the environment,
citing several EPA documents.
Response: EPA does not dispute the commenter's summary of the harms
caused by ozone pollution or the correct observation that EPA does not
know which specific sources might ultimately be allowed to use
alternate monitoring methods (because states, not EPA, will decide
whether to revise their SIPs). Otherwise, EPA disagrees with these
comments. Relative to part 75 monitoring approaches, non-part 75
monitoring approaches may be expected to provide less detailed
monitoring data and require less rigorous quality assurance, with a
consequently greater possibility that the total NOX
emissions amount reported by a source for a given ozone season might
understate or overstate the source's actual total emissions for that
ozone season to some degree. However, there is no reason to expect any
approved non-part 75 monitoring methodology either to be systematically
biased toward understatement of emissions or to create any incentive
leading to increased emissions. EPA was clear in the proposal that no
changes to emissions or air quality are expected because no changes are
being made to the NOX SIP Call's emissions requirements.\37\
The commenter effectively equates allowing alternate monitoring methods
with relaxing emissions requirements, providing no rationale or
evidence to support the contention that in the absence of any change in
either emissions requirements or the general requirement to monitor
emissions, possible changes in just the allowed methods for emissions
monitoring under the NOX SIP Call will lead to increased
emissions. EPA continues to believe it is reasonable to assume that
under current circumstances where sources are already complying with
the NOX SIP Call's emissions requirements by substantial
margins, substitution of one monitoring method for another monitoring
method, in the absence of any change in the Rule's emissions
requirements, will not cause sources to change their behavior in a way
that would affect emissions levels. Moreover, in the event that a
particular state's SIP submission were to include a poorly designed
alternate monitoring requirement that could lead to systematic
understatement of emissions, the SIP approval process--including
notice-and-comment procedures--would provide a further safeguard
against the possibility of alternate monitoring requirements
insufficient to ensure compliance with the Rule's emissions
requirements. The commenter appears to incorrectly assume that the
amendment in this action would by itself end all EPA oversight of
monitoring requirements for NOX SIP Call purposes and fails
to acknowledge the additional safeguard afforded by the SIP approval
process.
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\37\ 83 FR at 48761.
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The commenter's claims regarding suggestions that EPA purportedly
made about the supposed possibility of increased emissions misrepresent
the proposal. Contrary to the comments, nowhere in the proposal did EPA
indicate ``uncertainty'' as to whether the proposed amendments would
lead to
[[Page 8433]]
increased pollution. Rather, as just discussed, EPA explicitly stated
that the proposed amendments are expected to have no impact on
emissions or air quality. The fact that states, rather than EPA, will
decide whether to revise their SIPs to establish alternate monitoring
requirements was cited in the proposal as a basis for uncertainty with
regard to the potential amount of reductions in monitoring costs, not
as a basis for uncertainty with regard to supposed potential increases
in emissions.\38\ Likewise, nowhere in the proposal did EPA make any
suggestion regarding the relationship of supposed potential increases
in emissions to the likelihood of attainment or maintenance of any
NAAQS. Rather, as an illustration of the magnitude of states' recent
margins of compliance with the NOX SIP Call's emissions
reduction requirements, EPA stated only that such compliance would
continue to be achieved even if emissions were to increase
substantially from current levels, and then proceeded to explain why
such increases in emissions in fact are unlikely to occur.\39\
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\38\ 83 FR at 48761.
\39\ 83 FR at 48757 & nn.38-39.
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Comment: One commenter suggested that the proposal did not address
relevant differences among the states and source types that could be
affected by the proposed monitoring amendment. The commenter stated
that the proposal failed to identify which sources affected under the
NOX SIP Call do not participate in any CSAPR trading
program. Noting that several NOX SIP Call states are outside
the region covered by the various CSAPR trading programs, the commenter
asserted that EPA had failed to explain ``why sources in some areas
should be allowed to monitor less and pollute more,'' and that ``EPA is
thus effectively proposing to end continuous NOX monitoring
for an entire geographic area without discussing the ensuing
implications.'' Noting that the NOX SIP Call applies to both
EGUs and non-EGUs while the CSAPR trading programs generally apply only
to EGUs, the commenter further asserted that EPA did not ``coherently
address the distinction between the types of sources'' (emphasis in
original) covered by the NOX SIP Call and the CSAPR trading
programs. Repeating the contention that allowing alternate monitoring
methods will lead to increased emissions, the commenter suggested that
EPA should have evaluated the impacts on regional ozone transport
problems of allowing alternate monitoring methods for some states and
source types but not others.
Response: EPA disagrees with these comments. Contrary to the
commenter's suggestion, the proposal explicitly discussed differences
among NOX SIP Call states concerning whether each state's
EGUs are covered by a CSAPR trading program, noting that EGUs in
Connecticut, Delaware, Massachusetts, Rhode Island, and the District of
Columbia do not participate in any CSAPR trading programs.\40\
Likewise, the commenter's assertion that the proposed monitoring
amendment would ``end continuous NOX monitoring for an
entire geographic region'' is directly contradicted by information in
the proposal: First, by the explanation that most of the EGUs in the
five non-CSAPR states will remain subject to part 75 monitoring
requirements under the Acid Rain Program; \41\ second, by the
explanation that most of the emissions from the set of large EGUs and
large non-EGU boilers and turbines affected under the NOX
SIP Call come from large EGUs that would continue to monitor their
emissions according to part 75 under either the Acid Rain Program or a
CSAPR trading program; \42\ and third, by the data showing
quantitatively that out of the total set of sources subject to the
NOX SIP Call in the five non-CSAPR states, the subset of
sources that would continue to be subject to part 75 monitoring
requirements under other programs has produced most of the recent
emissions.\43\
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\40\ 83 FR at 48756 & nn.26-27. EPA notes that there are
currently no large EGUs in the District of Columbia.
\41\ 83 FR at 48756 & n.27.
\42\ 83 FR at 48758 & n.40.
\43\ See 83 FR at 48758 (Table 1) (also reproduced as Table 1 in
section II.B. of this document). The sum of the emissions shown in
Table 1 for the sources that would continue to be subject to part 75
monitoring in the five non-CSAPR states is 1,631 tons. The sum of
the emissions shown for the sources potentially affected by the
proposed amendment in these states is 654 tons.
---------------------------------------------------------------------------
Contrary to the commenter's assertion that the proposal failed to
address the distinction between EGUs and non-EGUs, the proposal
explicitly discussed the fact that unlike most EGUs, most non-EGUs
affected under the NOX SIP Call do not participate in a
CSAPR trading program or face part 75 monitoring requirements under
other programs.\44\ The proposal also explicitly noted that although
some of the sources potentially affected by the proposed monitoring
amendment are large EGUs not subject to the Acid Rain Program or a
CSAPR trading program, most of the potentially affected sources are
large non-EGU boilers and turbines.\45\ The proposal presented recent
state-specific emissions data broken out according to whether the
emissions came from sources that would continue to be subject to part
75 requirements under other programs or instead came from sources
potentially affected by the proposed amendment.\46\ The proposal did
not further break out the total recent emissions from potentially
affected sources into the respective portions from EGUs and non-EGUs
because EPA did not see any relevance in whether the NOX
emissions that might be monitored for NOX SIP Call purposes
using methods other than part 75 come from EGUs or from non-EGUs. The
commenter has not suggested any reasons why further subcategorization
of the emissions information provided in the proposal might be relevant
to an evaluation of the proposed monitoring amendment. Nevertheless, to
address the comment, EPA notes that large non-EGU boilers and turbines
were collectively responsible for 14,860 tons of the total 15,084 tons
of seasonal NOX emissions shown in Table 1 for all units
potentially affected by the proposed monitoring amendment, or 98.5% of
the total, while large EGUs not required to monitor according to part
75 under the Acid Rain Program or a CSAPR trading program were
collectively responsible for 224 tons, or 1.5% of the total.\47\
---------------------------------------------------------------------------
\44\ 83 FR at 48751-52, 48755-56 & n.23.
\45\ 83 FR at 48752.
\46\ 83 FR at 48758 (Table 1).
\47\ The potentially affected large EGUs are combustion turbines
located in non-CSAPR states that serve generators larger than 25 MW
and are exempt from the Acid Rain Program because they commenced
commercial operation before November 15, 1990, and meet the
definition of a ``simple combustion turbine'' in 40 CFR 72.2. There
are currently 31 such units, all located in Connecticut, Delaware,
or Massachusetts. The individual units are identified in the
spreadsheet referenced in note 54 infra, available in the docket for
this action.
---------------------------------------------------------------------------
The comments suggesting that EPA should have evaluated the impacts
on regional ozone transport problems of allowing alternate monitoring
methods for some states and source types but not others reflect the
commenter's unsupported assumption that allowing alternate monitoring
methods is equivalent to relaxing emissions requirements. EPA has
already rebutted the commenter's assumption in response to a previous
comment. Because there is no reason to expect any increase in emissions
from the proposed monitoring amendment, there is no reason to evaluate
any impacts on regional ozone transport problems of any supposed
potential increase in emissions.
Comment: One commenter stated that EPA has not ``identif[ied] any
need to weaken emission monitoring requirements'' (emphasis in
original), has not identified specific complaints
[[Page 8434]]
from sources regarding the costs of operating monitoring equipment that
has already been installed, and has not sufficiently discussed possible
monitoring methodologies or compared their costs. The commenter also
stated that allowing alternate monitoring requirements would unfairly
advantage new sources over existing sources because the new sources,
unlike existing sources, would be allowed ``to both use cheaper, less
effective monitoring systems and to get away with emitting more
NOX'' than existing sources.
Response: EPA disagrees with these comments. In the proposal, EPA
discussed the opportunity to reduce monitoring costs under the
NOX SIP Call for some sources while continuing to ensure
compliance with the Rule's emissions reduction requirements.\48\ By
definition, a regulatory initiative that reduces overall costs while
holding overall benefits constant produces positive net benefits. The
commenter has not offered any legal basis or policy rationale
supporting the notion that EPA should decline to pursue a regulatory
initiative intended to produce positive net benefits simply because the
net benefits happen to take the form of a reduction in sources'
monitoring costs.
---------------------------------------------------------------------------
\48\ 83 FR at 48761-62.
---------------------------------------------------------------------------
The commenter's suggestion that EPA has presented insufficient
evidence to support the existence of monitoring cost reduction
opportunities is belied by the information in the proposal, which
described the various monitoring methodologies available under part 75
and qualitatively discussed the cost reductions that could be available
if the sources using each of those methodologies were to switch to
alternate monitoring methodologies.\49\ Moreover, all of the comments
received on the proposal from source owners and industry associations,
as well as most of the comments received from states, agreed that the
proposed amendment would make monitoring cost reductions possible for
sources in states that choose to revise their SIPs.\50\ The commenter
asserted that sources had no reason to complain of monitoring costs
because they had already installed the necessary CEMS equipment, but as
EPA explained in response to a previous comment, this assessment is
incorrect as to new sources, because new sources would not yet have
installed the CEMS equipment, and materially incomplete as to all
sources, because CEMS-related costs include not only equipment
installation costs but also ongoing operating costs. EPA sees no reason
why, in the absence of any contrary information, more evidence is
needed to demonstrate the existence of opportunities for monitoring
cost reductions than was already presented in the proposal, as further
supported by comments.
---------------------------------------------------------------------------
\49\ 83 FR at 48761 & nn.53-54.
\50\ See comments from Indiana, Michigan, North Carolina, Ohio,
South Carolina, Alcoa, Citizens Energy, Council of Industrial Boiler
Owners, Illinois Environmental Regulatory Group, Ohio Manufacturers
Association, Virginia Manufacturers Association, and West Virginia
Manufacturers Association, available in the docket for this action.
---------------------------------------------------------------------------
With respect to quantification of the potential reductions in
monitoring costs, EPA explained in the proposal that because states,
not EPA, would decide whether to revise the monitoring requirements in
their SIPs and because EPA lacked complete information on the remaining
monitoring requirements that the sources would face, it was not
possible to predict the amount of monitoring cost reductions that could
occur following finalization of the proposed monitoring amendment.\51\
EPA still lacks information on the remaining monitoring requirements
that sources will face but received comments indicating some likelihood
that at least six states would revise their SIPs following finalization
of the proposed monitoring amendment. The states' comments make it
possible to estimate a potential range of monitoring cost reductions
that could occur if these states were to adopt some of the changes in
monitoring requirements that EPA considers most likely. EPA's estimates
are provided in section V of this document.
---------------------------------------------------------------------------
\51\ 83 FR at 48761.
---------------------------------------------------------------------------
Finally, the commenter's suggestion that the proposed monitoring
amendment would unfairly advantage new sources over existing sources
lacks any support. The NOX SIP Call's current requirements
for part 75 monitoring apply to both existing and new sources, and upon
finalization of the proposed monitoring amendment, states' flexibility
to establish alternate monitoring requirements will likewise apply to
both existing and new sources. Commenters have not suggested any reason
to believe that states will choose to exercise this new flexibility in
a manner that discriminates among their existing and new sources in
terms of the prospective monitoring requirements established in their
SIPs, and if the commenter is suggesting that EPA should require new
sources to incur certain capital expenditures in the future simply
because existing sources incurred those same capital expenditures in
the past, EPA disagrees. Further, the commenter's assertion that the
monitoring amendment will allow new sources to ``get away with emitting
more NOX'' again rests on the commenter's unsupported
assumption that allowing alternate monitoring methods is equivalent to
relaxing emissions requirements. EPA has already rebutted the
commenter's assumption in response to a previous comment. EPA also
reiterates that the proposed monitoring amendment would not change any
other emissions or monitoring requirements applicable to either
existing or new sources under regulations other than the NOX
SIP Call, including requirements that may be more stringent for new
sources than existing sources.
Comment: One commenter discussed the superiority of CEMS
methodologies compared to non-CEMS monitoring methodologies in terms of
the timeliness and reliability or accuracy of the emissions data
collected, particularly with respect to NOX emissions, and
cited various EPA documents in support. The commenter stated that EPA
``should be enhancing the use of CEMS in emissions measurements''
instead of allowing monitoring flexibility. In particular, the
commenter stated that the continued use of CEMS is necessary to ensure
compliance with the Chesapeake Bay Total Maximum Daily Load (TMDL) for
nitrogen established under the Clean Water Act. In support of this
comment, the commenter summarized the role of atmospheric deposition as
a contributor of nitrogen to Chesapeake Bay, citing studies by EPA and
others. The commenter also noted that the plan for achieving the TMDL
includes commitments from EPA to reduce atmospheric deposition through
implementation of rules addressing CAA requirements, including the
NOX SIP Call, and stated that EPA must maintain or
strengthen air regulations in order to meet its commitments. The
commenter stated that without accurate monitoring, states and EPA
``will not know whether the reductions necessary to attain the Bay TMDL
goals by 2025 are actually being met.''
Response: EPA agrees that CEMS methodologies are often the
preferred monitoring approaches for ensuring compliance with particular
emissions requirements but disagrees that the acknowledged superiority
of CEMS methodologies for some purposes should foreclose the
possibility of allowing monitoring flexibility for NOX SIP
Call purposes where other monitoring methods would be sufficient to
ensure continued achievement of the Rule's emissions reduction
requirements. Likewise, EPA does not dispute the commenter's summary
regarding the Chesapeake Bay TMDL
[[Page 8435]]
and EPA's reliance on the NOX SIP Call's emissions
reductions to reduce atmospheric deposition contributing nitrogen to
the Bay but disagrees that those facts suggest that compliance with the
Rule's emissions reduction requirements must be determined using any
particular monitoring approach. As discussed in response to a previous
comment, the NOX SIP Call's existing monitoring requirements
were established to provide monitoring information sufficient to ensure
compliance with the control measures adopted to achieve the Rule's
required emissions reductions, and monitoring requirements to ensure
compliance with other emissions requirements are established in other
regulations. Comments concerning whether the NOX SIP Call's
existing emissions reductions requirements are sufficiently stringent
to address other environmental objectives, including achievement of the
Chesapeake Bay TMDL, are outside the scope of the proposal. EPA did not
propose to substantively alter any regulatory requirements other than
the NOX SIP Call's monitoring requirements.
Comment: One commenter supported a narrower amendment to the
NOX SIP Call's monitoring requirements than EPA proposed.
Specifically, the commenter supported an amendment that would allow
states to eliminate the requirements for reporting emissions data to
EPA under part 75 but would not allow the use of substantively
different monitoring methodologies for collecting emissions data. The
commenter objected to allowing sources that currently monitor emissions
using CEMS to use other monitoring methodologies because, unlike CEMS
methodologies, non-CEMS methodologies do not allow for accurate and
timely determinations of compliance with or violations of short-term
emission limits. The commenter also expressed the expectation that if
the proposed amendment to emissions monitoring requirements is
finalized, some states would be required to revise their SIPs to
establish less stringent monitoring requirements because of provisions
in state law barring the states from imposing requirements on sources
that exceed minimum Federal requirements.
Response: The comment expressing concern that non-CEMS
methodologies are less useful than CEMS methodologies for determining
compliance with emissions requirements other than the NOX
SIP Call's emissions requirements is outside the scope of the proposal.
As discussed in response to a previous comment, the NOX SIP
Call's existing monitoring requirements were established to provide
monitoring information sufficient to ensure compliance with the control
measures adopted to achieve the Rule's required emissions reductions,
and monitoring requirements to ensure compliance with other emissions
requirements are established in other regulations. The NOX
SIP Call does not require states to impose short-term emissions limits
on their sources, and EPA did not propose to substantively alter any
regulatory requirements other than the NOX SIP Call's
monitoring requirements.
The comment suggesting that some NOX SIP Call states
would be required under state law to revise their SIPs if the proposed
monitoring amendment is finalized has no bearing on this action. EPA's
proper focus in this action is whether the proposed amendment to allow
alternate monitoring requirements in SIPs is appropriate under the CAA.
Questions of whether and how state law provisions might affect the
decisions of individual states to adopt alternate monitoring
requirements allowed under the amendment are outside EPA's purview.
Comment: One commenter stated that allowing sources that currently
monitor emissions for NOX SIP Call purposes with CEMS
methodologies to instead monitor their emissions with non-CEMS
methodologies would result in a loss of data resolution that would make
it more difficult to understand the impacts of the sources' emissions
on air quality in other states. The commenter stated that, with less
detailed emissions data, it would be more difficult for states to work
together to develop regionally consistent approaches for addressing
good neighbor obligations with respect to the 2015 ozone NAAQS. The
commenter also requested that EPA identify the specific units whose
monitoring requirements could potentially be altered by states if the
proposed monitoring amendment is finalized, as well as the locations of
the units.
Response: EPA disagrees that allowing the use of alternate
monitoring requirements for NOX SIP Call purposes would
materially impact the ability of states to work together to address
their good neighbor obligations with respect to the 2015 ozone NAAQS in
a regionally consistent manner. As discussed in section II.B. of this
document, if the proposed amendment is finalized, over 90% of the
emissions from the set of NOX SIP Call large EGUs and large
non-EGU boilers and turbines would still be monitored according to part
75 under other regulations if the relative proportions shown for 2017
in Table 1 continue into the future. In addition, the potentially
affected sources in states that choose to revise their SIPs would still
need to provide emissions monitoring information for each ozone season
sufficient for the state to demonstrate compliance with the Rule's
emissions reduction requirements. The commenter has not explained the
purpose for which the enhanced data resolution provided by part 75
monitoring is desired. In any event, EPA notes that projected hourly
emissions data for use in air quality modeling could be prepared based
on the intra-year time patterns in the extensive historical emissions
data reported by the sources for periods while the sources have been
subject to part 75, because those data would remain available even if
hourly emissions data are no longer reported in the future for some of
these sources. As indicated in Table 1, the total amount of recent
seasonal NOX emissions from the units that could potentially
switch from part 75 monitoring approaches to non-part 75 monitoring
approaches was approximately 15,000 tons during the 5-month ozone
season, which by extrapolation suggests possible annual emissions of
roughly 36,000 tons. By comparison, the most recent National Emissions
Inventory (for 2014) indicates that for the set of NOX SIP
Call states, the total amount of annual NOX emissions from
all types of stationary sources--that is, not just the large EGUs and
large non-EGU boilers and turbines currently subject to part 75
monitoring requirements under the NOX SIP Call--was over
2,000,000 tons, and the total amount of annual NOX emissions
from all stationary and mobile sources was over 5,000,000 tons.\52\
Thus, the NOX SIP Call units potentially affected by the
proposed amendment appear to be responsible for roughly 2% of the total
stationary source emissions and less than 1% of the total stationary
and mobile source emissions from NOX SIP Call states. Given
the small percentages of the relevant overall emissions inventory
represented by the large non-
[[Page 8436]]
EGU boilers and turbines potentially affected by the monitoring
amendment proposed for this action, EPA expects that air quality
modeling results and analyses of interstate ozone transport would not
be materially affected by differences in the intra-year patterns of the
projected hourly emissions data for these sources.
---------------------------------------------------------------------------
\52\ See state_tier1_caps.xlsx, available at https://www.epa.gov/air-emissions-inventories/air-pollutant-emissions-trends-data (follow the link for State Average Annual Emissions
Trend) and in the docket for this action. The total amount of
stationary and mobile source emissions can be obtained from the
spreadsheet by filtering column B to exclude all states except the
21 NOX SIP Call jurisdictions, filtering column D to
exclude ``prescribed fires'' and ``wildfires,'' filtering column E
to exclude all pollutants except NOX, and then summing
the 2014 emissions inventory amounts in column Y for all remaining
line items shown. The total amount of stationary source emissions
can be obtained in the same way after further filtering column D to
exclude ``highway vehicles'' and ``off-highway.''
---------------------------------------------------------------------------
With respect to the commenter's request for the identities and
locations of units potentially affected by the proposed monitoring
amendment--in other words, large non-EGU boilers and turbines as well
as large EGUs that are subject to the NOX SIP Call but not
the Acid Rain Program or a CSAPR trading program--EPA notes that the
requested information is already publicly available in the database of
reported part 75 emissions data accessible through the Agency's
website.\53\ The database identifies each individual unit that has
reported according to part 75 and provides the unit's state, county,
latitude, and longitude. The database also indicates the regulatory
programs for which the data have been reported, using the code
``SIPNOX'' to indicate where a unit has reported seasonal
NOX mass emissions data for purposes of the NOX
SIP Call but not for purposes of the seasonal NOX trading
programs established under CAIR, the original CSAPR, and the CSAPR
Update. For the convenience of the commenter and others who might be
similarly interested, EPA has extracted this information from the
database into a spreadsheet which has been added to the docket for this
action.\54\
---------------------------------------------------------------------------
\53\ See https://ampd.epa.gov/ampd.
\54\ See Existing Units Potentially Affected by the
NOX SIP Call Monitoring Amendment (December 2018),
available in the docket for this action. EPA acknowledges that the
database does not differentiate between two sets of units for which
the SIPNOX code is used: (1) Large EGUs and large non-EGU
boilers and turbines that are described in Sec. 51.121(i)(4) and
are potentially affected by the amendments in this action, and (2)
other units that are not described in Sec. 51.121(i)(4) and
therefore are not affected by the amendments in this action, but
that nevertheless monitor according to part 75 for NOX
SIP Call purposes pursuant to requirements in their states' SIPs.
The spreadsheet in the docket includes only units in the first set.
---------------------------------------------------------------------------
B. Emissions Reduction Requirements
Comment: One commenter stated it had no objection to the proposed
revisions to the provisions expressing the NOX SIP Call's
emissions reduction requirements to the extent that the revisions do
not substantively adjust the states' budgets.
Response: EPA thanks the commenter for this comment.
Comment: One commenter agreed with EPA's objective of clarifying
and simplifying the provisions describing the NOX SIP Call's
emissions reduction requirements but offered suggestions for doing so
in ways that differed in some respects from the proposed amendments.
First, the commenter suggested replacing the terms ``budget'' and
``NOX budget'' with a single term such as ``NOX
ozone season budget'' both for consistency and to clarify that the
budgets apply to seasonal rather than annual emissions. The commenter
also suggested that EPA specify that the final budgets apply starting
in 2007 and define the term ``ozone season'' in the regulations.
Finally, the commenter suggested that all references to the Phase I
budgets could be removed from the regulations because these budgets no
longer have any substantive effect.
Response: EPA agrees with most of the commenter's suggestions. In
particular, EPA agrees that the regulations would be clarified by
consistently using the term ``NOX ozone season budget''
throughout Sec. 202F;51.121, specifying that the final budgets apply
starting in 2007, and documenting the definition used for the term
``ozone season.'' Extending the commenter's suggestions, EPA believes
the regulations would be further clarified by indicating that other
emissions amounts described in the regulations are also ozone season
emissions and documenting the definition used for the term ``nitrogen
oxides'' or ``NOX.'' The specific changes from proposal that
are being adopted in response to the commenter's suggestion are
described in section IV of this document.
Although EPA agrees with the commenter's observation that the Phase
I budgets no longer have any substantive regulatory effect, EPA
disagrees with the suggestion to remove all references to these budgets
from the regulations. All but one of the states subject to the
NOX SIP Call as implemented was required to adopt a SIP
revision designed to comply with a Phase I budget, and some of the
control measures adopted in those SIP revisions (such as measures to
reduce emissions from cement kilns or stationary internal combustion
engines) continue to be implemented as approved SIP provisions. While
these control measures now address requirements to comply with the
final budgets rather than the Phase I budgets, EPA considers it
reasonable to retain the Phase I budgets in the regulations (and to
specify their years of applicability) to document and facilitate
understanding of both the state regulatory actions that originally
adopted the measures and the EPA actions that approved the measures
into the SIPs.
C. Baseline Emissions Inventory Table
Comment: One commenter objected to the proposed removal of the
baseline emissions inventory table in Sec. 51.121(g)(2)(ii),
requesting that the table be retained (with any necessary updates) for
use in implementing the provisions at Sec. 51.121(f)(2) that require
enforceable limits on seasonal NOX mass emissions from large
EGUs and large non-EGU boilers and turbines. The text of Sec.
51.121(f)(2)(ii), which EPA has not proposed to substantively amend,
contains the phrase ``the total NOX emissions projected for
such sources by the State pursuant to paragraph (g) of this section.''
The commenter interprets this phrase as referring to amounts of
emissions that the commenter believes either are or should be shown in
the baseline emissions inventory table in Sec. 51.121(g)(2)(ii).
Response: EPA disagrees with this comment, which appears to arise
from a misinterpretation of the reference to ``paragraph (g)'' in Sec.
51.121(f)(2)(ii). The various subparagraphs of Sec. 51.121(g) describe
or implicate two different types of projected 2007 emissions amounts.
The first type is the baseline pre-control emissions amounts projected
by EPA to represent emissions absent the reductions required by the
NOX SIP Call. The second type is the post-control emissions
amounts projected by states to represent emissions following
implementation of the control measures adopted in their SIPs. The table
in Sec. 51.121(g)(2)(ii) that EPA proposed to delete was intended to
contain \55\ the first type of emissions amount--specifically, the pre-
control emissions amounts projected by EPA for all sources \56\ in all
sectors. In contrast, the phrase ``the total NOX emissions
projected for such sources \57\ by the State pursuant to paragraph (g)
of this section'' in Sec. 51.121(f)(2)(ii) refers to the second type
of emissions amount--specifically, the post-control emissions amounts
projected by states for their
[[Page 8437]]
large EGUs and large non-EGU boilers and turbines pursuant to Sec.
51.121(g)(2)(iii) and used in the demonstrations required under Sec.
51.121(g)(1). The fact that the phrase in Sec. 51.121(f)(2)(ii) refers
to the second type of emissions amount is evident for two reasons:
first, the relevant amounts are projected ``by the State'' and not by
EPA, and second, the purpose of Sec. 51.121(f)(2)(ii) is to require
enforceable mechanisms to ensure achievement of post-control emissions
levels rather than pre-control emissions levels. Thus, the commenter's
objection to the removal of the baseline emissions inventory table in
Sec. 51.121(g)(2)(ii) is misplaced.
---------------------------------------------------------------------------
\55\ As noted in the proposal, because of an error setting out
the regulatory text for certain NOX SIP Call amendments
finalized in 2000, the current table incorrectly shows the potential
post-control emissions amounts that EPA projected for use in setting
the states' amended statewide emissions budgets rather than the
amended pre-control emissions amounts as intended. See 83 FR at
48760 & n.48.
\56\ The ``EGU'' and ``non-EGU'' columns of the table in Sec.
51.121(g)(2)(ii)--both the original version showing EPA's
projections of pre-control emissions and the incorrectly amended
version showing EPA's projections of post-control emissions--include
emissions amounts for all EGU and non-EGU point sources, not just
large EGUs and large non-EGU boilers and turbines.
\57\ The term ``such sources'' in Sec. 51.121(f)(2)(ii) refers
to the large EGUs and large non-EGU boilers and turbines identified
in Sec. 51.121(f)(2).
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D. Post-NBTP Transition Requirements
Comment: Without expressing any objection to the proposed
clarifying amendments to the post-NBTP transition provision at Sec.
51.121(r)(2), one commenter requested confirmation that EPA does not
intend the requirements of the provision as revised to apply with
regard to EGUs that participate in the CSAPR Update trading program
under the regulations set forth at 40 CFR part 97, subpart EEEEE,\58\
pursuant to an approved SIP revision.
---------------------------------------------------------------------------
\58\ The commenter similarly requests confirmation with regard
to EGUs that participate in the original CSAPR seasonal
NOX trading program under the regulations set forth at 40
CFR part 97, subpart BBBBB, but this request is moot because there
are no states subject to the NOX SIP Call with EGUs that
continue to participate in the original CSAPR seasonal
NOX trading program.
---------------------------------------------------------------------------
Response: The proposed clarifying revisions to the NOX
SIP Call post-NBTP transition provision at Sec. 51.121(r)(2) add a
cross-reference to 40 CFR 52.38(b)(10)(ii), which is an existing
provision of the CSAPR regulations governing SIP approvals. Under this
provision of the CSAPR regulations, where a state has an approved full
CSAPR SIP revision requiring certain units in the state to participate
in a state seasonal NOX trading program integrated with the
Federal CSAPR Update seasonal NOX trading program
established under 40 CFR part 97, subpart EEEEE, the NOX SIP
Call's post-NBTP transition requirements under Sec. 51.121(r)(2) are
satisfied with regard to any of the state's large EGUs or large non-EGU
boilers and turbines participating in that state trading program. As
explained in the proposal,\59\ the addition of the cross reference in
Sec. 51.121(r)(2) is not a substantive change because the approval of
a full CSAPR SIP would produce this result even without a cross-
reference, but the cross-reference clarifies the NOX SIP
Call regulations.
---------------------------------------------------------------------------
\59\ 83 FR at 48760-61.
---------------------------------------------------------------------------
Comment: Without expressing any objection to the proposed
clarifying amendments to the post-NBTP transition provision at Sec.
51.121(r)(2), one commenter requested that EPA further clarify the
Rule's post-NBTP transition requirements by adding a new regulatory
provision indicating that where a state does not require its large non-
EGU boilers and turbines to participate in the CSAPR Update trading
program, the state must impose a cap on these units' collective
seasonal NOX mass emissions equivalent to the portion of the
statewide emissions budget assigned to the units under the NBTP. The
commenter requested that EPA add the new provision to Sec.
51.121(f)(2), the provision establishing the requirement for
enforceable limits on seasonal NOX mass emissions from large
EGUs and large non-EGU boilers and turbines.
Response: This comment is outside the scope of the proposal. A
requirement for a cap on the collective NOX mass emissions
of each state's large non-EGU boilers and turbines does not appear in
the existing regulatory text at Sec. 51.121 because, as discussed in
the proposal and summarized in section II.A. of this document, the
NOX SIP Call did not require states to control any specific
types of sources or to adopt any specific types of control measures.
Even where states chose to adopt control measures for large EGUs and
large non-EGU boilers and turbines, thereby triggering requirements for
enforceable limits on seasonal NOX mass emissions from those
sources, the regulations provided several permissible alternative forms
for such limits.\60\ Similarly, the post-NBTP provision at Sec.
51.121(r)(2) does not prescribe what types of sources states must
control to satisfy the post-NBTP transition requirements or what types
of control measures states must employ, but simply requires each state
with units affected under the NOX SIP Call that do not
participate in a successor trading program to the NBTP to ``revise the
SIP to adopt control measures that satisfy the same portion of the
State's emission reduction requirements under [Sec. 51.121] as the
State projected [the NBTP] would satisfy.'' The commenter's requested
amendment would codify as a Federal requirement what may be the
simplest way to satisfy the Rule's post-NBTP transition requirements,
but it would also reduce states' flexibility by eliminating options to
satisfy the post-NBTP transition requirements in other ways, and the
reduction in flexibility would represent a substantive change to the
existing regulations. EPA did not propose substantive changes to the
post-NBTP transition provision and made clear that the only provision
of the NOX SIP Call regulations being reopened for
substantive comment was the provision concerning part 75 monitoring
requirements for large EGUs and large non-EGU boilers and turbines.
---------------------------------------------------------------------------
\60\ See 40 CFR 51.121(f)(2)(i)(A)-(C).
---------------------------------------------------------------------------
Comment: Without expressing any objection to the proposed
clarifying amendments to the post-NBTP transition provision at Sec.
51.121(r)(2), two commenters requested that EPA identify in the
regulations the portion of each state's statewide emissions budget
assigned to the state's large non-EGU boilers and turbines by adding
this information either as a new table or as an additional column in
the table of statewide budgets in Sec. 51.121(e)(2)(i). The commenters
suggested that inclusion of these amounts in the regulations could help
states address their post-NBTP transition requirements. One of the
commenters accompanied this comment with a request that EPA confirm
``it is the EPA's intent that all required SIP elements for the
NOX SIP Call are contained under Sec. 51.121.''
Response: These comments are outside the scope of the proposal. The
portions of the statewide emissions budgets assigned to various
categories of sources do not appear in the existing regulatory text at
Sec. 51.121 because, as discussed in the proposal and summarized in
section II.A. of this document, the NOX SIP Call did not
establish required post-control emissions amounts for any specific
categories of sources. Instead, each state determined what portions of
its post-control statewide emissions budget to assign to the specific
categories of sources in the state, and the assignments were approved
in separate SIP approval actions for each state.\61\ Adopting the
state-determined, sector-specific assignments as Federal requirements
at this time would be a substantive change to the existing regulations
because it would reduce states' flexibility to revise their previous
choices and select other ways of addressing their post-NBTP transition
requirements. EPA did not propose substantive changes to the post-NBTP
transition provision and made clear that the only provision of the
NOX SIP Call regulations being reopened for
[[Page 8438]]
substantive comment was the provision concerning part 75 monitoring
requirements for large EGUs and large non-EGU boilers and turbines.
---------------------------------------------------------------------------
\61\ See, e.g., 67 FR 68542 (Nov. 12, 2002) (proposing to
approve Virginia SIP provisions assigning portions of the statewide
emissions budget to large EGUs and large non-EGU boilers and
turbines); see also 68 FR 40520 (July 8, 2003) (finalizing
approval).
---------------------------------------------------------------------------
Comment: Without expressing any objection to the proposed
clarifying revisions to the post-NBTP transition provision at Sec.
51.121(r)(2), one commenter noted the proposed insertion of the words
``or included'' into the phrase ``a State whose SIP . . . includes or
included an emission trading program approved under [Sec. 51.121]''
and indicated that the commenter's interpretation of the revised
language is that ``no action is necessary to affirm [the commenter's]
obligation to maintain NOX SIP Call emissions control.'' The
commenter requested that EPA clarify in this final action if the
state's interpretation is not correct.
Response: EPA considers this comment to be outside the scope of the
proposal. As discussed in the proposal, the reason for inserting the
words ``or included'' in Sec. 51.121(r)(2) was to eliminate any
possible mistaken inference that a state's obligation to maintain
NOX SIP Call emission controls might be contingent on
whether its SIP currently includes trading program provisions and to
reinforce that the Rule's emissions reductions are permanent and
enforceable.\62\ EPA does not consider this to be a substantive change
to the regulations.\63\ While the commenter contends that its request
for clarification about the need for any further action regarding its
SIP arises from the proposed insertion, the commenter has not explained
how, if at all, its interpretation of the post-NBTP transition
requirements might have been influenced by the proposed insertion, and
there is no indication that the commenter's interpretation has changed
from its interpretation before issuance of the proposal.\64\ Given the
lack of any apparent connection between the proposed revision and the
commenter's request for clarification, EPA interprets the comment as a
request for a determination concerning the commenter's SIP that is
outside the scope of the proposal. For this action, EPA did not propose
to make any determinations regarding whether any further action is or
is not necessary to address any specific state's post-NBTP transition
requirements. Accordingly, EPA is not making any such state-specific
determinations in this final action, either through express statements
or otherwise.
---------------------------------------------------------------------------
\62\ 83 FR at 48760-61.
\63\ EPA notes that the continued applicability of the post-NBTP
transition requirements following the replacement of the CAIR
seasonal NOX trading program by the original CSAPR
seasonal NOX trading program was discussed in the
preamble for the CSAPR final rule. 76 FR at 48325.
\64\ Like several other states, when the NBTP was discontinued,
the commenter elected to include its large non-EGU boilers and
turbines in the replacement seasonal NOX trading program
established under CAIR, and EPA subsequently approved the removal of
the NBTP from its SIP. The commenter is thus a state whose SIP
``included'' a trading program approved under Sec. 51.121. The
commenter clearly is not contending that, prior to this action, it
believed the requirement to adopt control measures replacing the
NBTP no longer applied to it because its SIP no longer ``includes''
the NBTP and that, now, the insertion of the words ``or included''
would cause it to understand the requirement once again applies,
although such a contention would have internal logic and would be
consistent with the purpose of the proposed clarification. The
comment does not set forth the commenter's interpretation of Sec.
51.121(r)(2) prior to this action, but if the commenter is
contending that, prior to this action, it understood the requirement
to adopt replacement control measures applied to it and that, now,
the insertion of the words ``or included'' would cause it to believe
the requirement no longer applies, that contention would be
illogical. If the commenter is contending that the insertion of the
words ``or included'' would alter its interpretation concerning the
nature of the replacement control measures that can satisfy the
post-NBTP transition requirements, that contention would also be
illogical because with or without the added words, the post-NBTP
transition provision does not address the nature of replacement
control measures that states may or must adopt.
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IV. Final Action
For the reasons discussed in the proposal, as supplemented by the
discussion in this document, EPA is finalizing amendments to the
NOX SIP Call regulations at 40 CFR 51.121 and 51.122 and
amendments to associated cross-references in the CSAPR regulations at
40 CFR 52.38. In place of the current requirement for states to include
provisions in their SIPs under which certain emissions sources must
monitor their seasonal NOX mass emissions according to 40
CFR part 75, the amended regulations will allow states to include
alternate forms of monitoring requirements in their SIPs for
NOX SIP Call purposes. Other amendments remove obsolete
provisions and clarify the remaining regulations but do not
substantively alter any current regulatory requirements.
Descriptions of the individual proposed amendments are provided in
sections II.B. and II.C. of this document and further discussion is
provided in the proposal. EPA is finalizing the amendments generally as
proposed with the following further revisions, all of which EPA
considers to be non-substantive changes from the proposal:
To improve clarity, the final regulatory text of Sec.
51.121(i)(4) is being revised from the proposed amended text in two
ways. First, the final revisions indicate that where a state chooses to
require part 75 monitoring for some or all large EGUs and large non-EGU
boilers and turbines for NOX SIP Call purposes, the ``full
set of'' monitoring, recordkeeping, and reporting provisions in subpart
H of part 75 must be required. The added words clarify that the
amendments do not authorize states to create partial versions of the
part 75 regulations that EPA would then have to administer on a state-
specific basis. Second, the final revisions remove a phrase indicating
that the amended text does not create any exception to any part 75
requirements that may apply to a source under another legal authority.
The removed phrase is unnecessary because, on its face, the amended
text merely gives states an option to require part 75 monitoring for
NOX SIP Call purposes and does not create or authorize any
exceptions to any requirements that may apply to any source under any
legal authority. EPA believes the text of the final amendment is
clearer and does not differ substantively from the text of the
amendment as proposed.
As discussed in EPA's response to comments in section
III.B. of this document, the regulatory text expressing the
NOX SIP Call's emissions reduction requirements is being
further clarified by using more precise terminology and documenting the
definitions that already apply for two important terms. The final
revisions (1) use the standard term ``NOX ozone season
budget'' consistently, (2) specify emissions ``during the ozone
season'' where appropriate, (3) indicate the respective years of
applicability for the Phase I and final emissions budgets, and (4) add
definitions of the terms ``nitrogen oxides or NOX'' and
``ozone season'' to Sec. 51.121. The term ``nitrogen oxides or
NOX'' is defined as ``all oxides of nitrogen except nitrous
oxide (N2O), reported on an equivalent molecular weight
basis as nitrogen dioxide (NO2).'' The term ``ozone season''
is defined as ``the period from May 1 through September 30 of a year.''
The added definitions do not alter any regulatory requirements because
they are substantively identical to the definitions that already
explicitly apply for purposes of Sec. 51.122 and that have
historically been used in practice for purposes of Sec. 51.121 as
well.\65\ The additional revisions affect the regulatory text at Sec.
51.121(a)(3), (b)(1)(i) and (iii), (e)(1), (e)(2)(i) and (ii), (f)
introductory
[[Page 8439]]
text, (f)(2) introductory text, (f)(2)(i)(C), (g)(1), (g)(2)(i) and
(iii), (i), and (j)(1).
---------------------------------------------------------------------------
\65\ See 40 CFR 51.122(a); see also id. Sec. 51.50 (definition
of ``nitrogen oxides'').
---------------------------------------------------------------------------
Instead of being removed as proposed, the provision at
Sec. 51.121(d)(2) concerning procedural requirements for SIP
submissions is being revised to incorporate the updated procedural
requirements for SIP submissions at 40 CFR 51.103. In the proposal,\66\
EPA stated the intent for the completeness and format requirements in
Sec. 51.103 to apply to any future SIP submissions under Sec. 51.121.
The final revision makes such applicability explicit and is consistent
with several other provisions of Sec. 51.121 that similarly
incorporate requirements set forth in other sections of 40 CFR part 51.
---------------------------------------------------------------------------
\66\ 83 FR at 48761.
---------------------------------------------------------------------------
An additional editorial revision is being made to the text
of Sec. 51.121(k)(2). The revision clarifies the regulations by
standardizing citation formats.
A redline-strikeout document showing the text of 40 CFR 51.121 and
51.122 with the amendments adopted in this action, including all the
proposed amendments to the NOX SIP Call regulations with the
further revisions just described, is available in the docket for this
action.
The amendments finalized in this action are effective immediately
upon publication of the action in the Federal Register. This final
action is not subject to requirements specifying a minimum period
between publication and effectiveness under either Congressional Review
Act (CRA) section 801(a)(3), 5 U.S.C. 801(a)(3), or Administrative
Procedure Act (APA) section 553(d), 5 U.S.C. 553(d).
CRA section 801(a)(3) generally prohibits a ``major rule'' from
taking effect earlier than 60 days after the rule is published in the
Federal Register. Generally, under CRA section 804(2), 5 U.S.C. 804(2),
a major rule is a rule that the Office of Management and Budget (OMB)
finds has resulted in or is likely to result in (1) an annual effect on
the economy of $100 million or more, (2) major cost or price increases,
or (3) other significant adverse economic effects. This action is not a
major rule for CRA purposes.
As discussed in section VI.M. of this document, EPA is issuing the
amendments under CAA section 307(d). This provision does not include
requirements governing the effective date of a rule promulgated under
it and, accordingly, EPA has discretion in establishing the effective
date. While APA section 553(d) generally provides that rules may not
take effect earlier than 30 days after they are published in the
Federal Register, CAA section 307(d)(1) clarifies that ``[t]he
provisions of [APA] section 553 . . . shall not, except as expressly
provided in this section, apply to actions to which this subsection
applies.'' Thus, APA section 553(d) does not apply to the amendments.
Nevertheless, in making this final action effective immediately upon
publication, EPA has considered the purposes underlying APA section
553(d). The primary purpose of the prescribed 30-day waiting period is
to give affected parties a reasonable time to adjust their behavior and
prepare before a final rule takes effect. The amendments made in this
action do not impose any new regulatory requirements and therefore do
not necessitate time for affected sources to adjust their behavior or
otherwise prepare for implementation. Further, APA section 553(d)
expressly allows an effective date earlier than 30 days after
publication for a rule that ``grants or recognizes an exemption or
relieves a restriction.'' This action relieves an existing restriction
and allows EPA to approve SIPs with more flexible monitoring
requirements, which in turn could lead to reduced monitoring costs for
certain sources. Consequently, making the amendments effective
immediately upon publication of the action is consistent with the
purposes of APA section 553(d).
V. Impacts of the Amendments
The only amendment being finalized in this action that
substantively alters existing regulatory requirements is the amendment
allowing states to revise their SIPs, for NOX SIP Call
purposes only, to establish monitoring requirements other than part 75
monitoring requirements. The amendments do not change any of the Rule's
existing regulatory requirements related to statewide emissions budgets
or enforceable mass emissions limits for large EGUs and large non-EGU
boilers and turbines. Accordingly, EPA expects that the amendments will
have no impact on emissions or air quality. However, EPA does expect
that the amendment to the Rule's monitoring requirements will
ultimately allow some sources to reduce their monitoring costs because
of alternate monitoring requirements established in SIP revisions
submitted and approved for their states. Because states, not EPA, will
decide whether to revise the monitoring requirements in their SIPs and
because EPA lacks complete information on the remaining monitoring
requirements that the sources would face, there is considerable
uncertainty concerning the amount of monitoring cost reductions that
may be facilitated by this action, and EPA did not present a
quantitative estimate of potential monitoring cost reductions in the
proposal. For purposes of the final action, based in part on improved
information obtained through comments, EPA has estimated a range of
potential annual monitoring cost reductions from $1.2 million to $3.3
million, with a midpoint estimate of $2.25 million, as further
discussed below. Given the absence of any change in emissions or air
quality, there would be no change in the public health and
environmental benefits attributable to the NOX SIP Call's
emissions reduction requirements, and the likely reductions in
monitoring costs therefore are expected to constitute positive net
benefits from this action.
As of December 2018, EPA's records indicate that there are
approximately 315 existing large EGUs and large non-EGU boilers and
turbines in the NOX SIP Call region that could potentially
be affected by the monitoring amendment if all states were to revise
their SIPs.\67\ To estimate how many of these potentially affected
existing units may ultimately face alternate monitoring requirements
made possible by the monitoring amendment in this action, EPA is
relying on information obtained from states' comments. Six states
submitted comments expressing support for the proposed monitoring
amendment.\68\ While these comments do not in any way obligate the
states to submit SIP revisions with alternate monitoring requirements,
and additional states that did not submit comments could also choose to
submit SIP revisions, EPA believes that the comments provide a
reasonable basis for assuming, solely for purposes of developing an
estimate of this action's impacts, that the 102 existing units in these
six states will ultimately face alternate monitoring requirements of
some kind.\69\ According to the monitoring plans for these units, 34
units use both gas concentration CEMS
[[Page 8440]]
and stack gas flow rate CEMS, 35 units use gas concentration CEMS but
not stack gas flow rate CEMS, and 33 units use non-CEMS methodologies.
For purposes of estimating potential monitoring cost reductions, EPA
has focused on the units currently using CEMS because, as noted in the
proposal and in section II.B. of this document, EPA expects that units
already using non-CEMS methodologies under part 75 would experience
little or no reduction in monitoring costs from alternate monitoring
requirements.
---------------------------------------------------------------------------
\67\ The spreadsheet referenced in note 54 supra identifies 317
potentially affected existing units. As noted in section II.B. of
this document, in the proposal for this action EPA indicated that
there were approximately 310 potentially affected existing units.
Several additional units started reporting emissions for
NOX SIP Call purposes in 2018.
\68\ The six states are Indiana, Michigan, North Carolina, Ohio,
South Carolina, and West Virginia.
\69\ The 102 units are the existing units identified in the
spreadsheet referenced in note 54 supra for these six states. While
any new units in these states that otherwise would have been
required to use CEMS methodologies for NOX SIP Call
purposes could also experience monitoring cost reductions, EPA
believes it is reasonable to ignore possible new units in preparing
this estimate due to the larger numbers of existing units.
---------------------------------------------------------------------------
To represent the alternate monitoring requirements that the units
currently using CEMS could face in a manner that reflects the
substantial uncertainty on this issue, EPA has used a range of
assumptions. Specifically, to estimate the low end of the range, EPA
has assumed that the only change from current requirements is that the
34 units currently using both gas concentration CEMS and stack gas flow
rate CEMS will discontinue the use of stack gas flow rate CEMS. EPA
considers this assumption to be reasonable for purposes of estimating
potential monitoring cost reductions because requirements to use stack
gas flow rate CEMS are relatively uncommon in non-part 75 monitoring
regulations. EPA also believes the units currently using stack gas flow
rate CEMS are more likely than other potentially affected units to
continue to be subject to requirements to use gas concentration CEMS
because many of these units combust solid fuel and consequently may
have triggered emission control requirements and associated emissions
monitoring requirements under other regulations. To estimate the high
end of the range, EPA has assumed that in addition to the change just
described, the 35 units currently using only gas concentration CEMS
will switch to a non-CEMS methodology. While it is possible that some
of these units may also face continued requirements to use gas
concentration CEMS under other regulations, EPA believes the likelihood
that these units, none of which combust solid fuel, would be eligible
to use non-CEMS methodologies is greater than for the units that
currently use both gas concentration CEMS and stack gas flow rate CEMS.
To estimate the monitoring cost reductions associated with the
assumed range of changes in monitoring requirements, EPA has used the
cost estimates for the various part 75 monitoring methodologies
contained in the information collection request (ICR) renewal prepared
in conjunction with this action for purposes of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq.\70\ Based on the cost estimates in the ICR
renewal, EPA has estimated that the potential annual cost reduction
from discontinuing the use of stack gas flow rate CEMS--including
reductions in labor costs, non-labor operating and maintenance costs
(including contractor costs), and annualized capital costs--is
approximately $35,000 per unit, while the analogous potential annual
cost reduction from discontinuing the use of gas concentration CEMS is
approximately $60,000 per unit.\71\ Multiplying these per-unit amounts
by the respective numbers of units yields an estimated range of
potential annual monitoring cost reductions from $1.2 million to $3.3
million.\72\ The midpoint of this range is a potential reduction in
annual monitoring costs of $2.25 million.
---------------------------------------------------------------------------
\70\ See section VI.C. infra.
\71\ See Information Collection Request Renewal for the
NOX SIP Call: Supporting Statement (September 2018) at 12
(Table 6-2), available in the docket for this action. The $35,000
estimate is the rounded difference between the sum of the amounts in
the labor, O&M, and annualized capital cost columns on line 6(a) and
the sum of the amounts in the same columns on line 6(b). The $60,000
estimate is the rounded difference from the same calculation
performed using the amounts on lines 6(b) and 6(c) instead.
\72\ Calculation of low end of range: 34 units x $35,000 per
unit = $1.2 million.
Calculation of high end of range: 35 units x $60,000 per unit +
$1.2 million = $3.3 million.
---------------------------------------------------------------------------
VI. Statutory and Executive Order Reviews
Additional information about these statutes and executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review, and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to OMB for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is considered an Executive Order 13771 deregulatory
action. This final rule provides meaningful burden reduction by
allowing states to establish lower-cost monitoring requirements in
their SIPs for some sources as alternatives to part 75 monitoring
requirements. Because states, not EPA, will decide whether to revise
the monitoring requirements in their SIPs and because EPA lacks
complete information on the remaining monitoring requirements that the
sources would face, there is considerable uncertainty regarding the
amount of monitoring cost reductions that may occur, but EPA has
quantified an estimated range in section V of this document. In
addition, the proposal's qualitative discussion of the potential
monitoring cost reductions \73\ is summarized in section II.B. of this
document.
---------------------------------------------------------------------------
\73\ 83 FR at 48761-62.
---------------------------------------------------------------------------
C. Paperwork Reduction Act
This action does not impose any new information collection burden
under the Paperwork Reduction Act. OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 2060-0445. However, to reflect the
amendment allowing states to establish potentially lower-cost
monitoring requirements for some sources as alternatives to the current
part 75 monitoring requirements, EPA submitted an information
collection request (ICR) renewal to OMB in conjunction with the
proposal for this action. The ICR document prepared by EPA, which has
been assigned EPA ICR number 1857.08, can be found in the docket for
this action. None of the comments that EPA received during the public
comment period for the proposal addressed the ICR renewal.
Like the current ICR, the ICR renewal reflects the information
collection burden and costs associated with part 75 monitoring
requirements for sources that are subject to part 75 monitoring
requirements under the SIP revisions addressing states' NOX
SIP Call obligations and that are not subject to part 75 monitoring
requirements under the Acid Rain Program or a CSAPR trading program.
The ICR renewal is generally unchanged from the current ICR except that
the renewal reflects projected decreases in the numbers of sources that
would perform part 75 monitoring for NOX SIP Call purposes
based on an assumption (made only for purposes of estimating
information collection burden and costs for the ICR renewal) that, over
the course of the 3-year renewal period, some states will revise their
SIPs to replace part 75 monitoring requirements for some sources with
lower-cost monitoring requirements. As under the current ICR, all
information collected from sources under the ICR renewal will be
treated as public information.
Respondents/affected entities: Fossil fuel-fired boilers and
stationary combustion turbines that have heat input capacities greater
than 250 mmBtu/hr or serve electricity generators
[[Page 8441]]
with nameplate capacities greater than 25 MW and that are not subject
to part 75 monitoring requirements under another program.
Respondents' obligation to respond: Mandatory if elected by the
state (40 CFR 51.121(i)(4) as amended).
Estimated number of respondents: 340 (average over 2019-2021
renewal period).
Frequency of response: Quarterly, occasionally.
Total estimated burden: 131,945 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $19,143,004 (per year), includes $8,256,087
annualized capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves
this ICR renewal, the Agency will announce that approval in the Federal
Register.
D. Regulatory Flexibility Act
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act, 5 U.S.C. 601-612. In making this determination, the
impact of concern is any significant adverse economic impact on small
entities. An agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, has no net burden, or otherwise has a
positive economic effect on the small entities subject to the rule.
This action does not directly regulate any entity, but simply allows
states to establish potentially lower-cost monitoring requirements for
some sources and generally streamlines existing regulations. EPA has
therefore concluded that this action will either relieve or have no net
regulatory burden for all affected small entities.
E. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
the Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local, or tribal governments or the
private sector. This action simply allows states to establish
potentially lower-cost monitoring requirements for some sources and
generally streamlines existing regulations.
F. 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. This
action simply allows states to establish potentially lower-cost
monitoring requirements for some sources and generally streamlines
existing regulations.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments, on the relationship between the Federal Government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes. This action simply
allows states to establish potentially lower-cost monitoring
requirements for some sources and generally streamlines existing
regulations. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk. This action simply allows states to establish potentially
lower-cost monitoring requirements for some sources and generally
streamlines existing regulations.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer Advancement Act
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action is not subject to Executive Order
12898 because it does not establish an environmental health or safety
standard. This action simply allows states to establish potentially
lower-cost monitoring requirements for some sources and generally
streamlines existing regulations. Consistent with Executive Order 12898
and EPA's environmental justice policies, EPA considered effects on
low-income populations, minority populations, and indigenous peoples
while developing the original NOX SIP Call. The process and
results of that consideration are described in the Regulatory Impact
Analysis for the NOX SIP Call.
L. Congressional Review Act
This action is subject to the Congressional Review Act, and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
M. Determinations Under CAA Section 307(b) and (d)
CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), indicates which United
States Courts of Appeals have venue for petitions of review of final
actions by EPA. This section provides, in part, that petitions for
review must be filed in the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) if (i) the Agency action consists of
``nationally applicable regulations promulgated, or final action taken,
by the Administrator,'' or (ii) the action is locally or regionally
applicable, but ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.'' This
action amends existing regulations that apply to 20 states and the
District of Columbia, and thus the action applies to the same 21
jurisdictions. The existing regulations were promulgated to address
interstate transport of air pollution across the eastern half of the
nation and the resulting emissions reductions have been relied on as a
basis for actions redesignating areas in at least 20 states to
attainment with one or more NAAQS.
[[Page 8442]]
The states affected under the regulations and relying on the resulting
emissions reductions are located in multiple EPA Regions and Federal
judicial circuits. Previous final actions promulgating and amending the
existing regulations were nationally applicable and reviewed in the
D.C. Circuit. For these reasons, the Administrator determines that this
final action is nationally applicable or, in the alternative, is based
on a determination of nationwide scope and effect for purposes of
section 307(b)(1). Thus, pursuant to section 307(b), any petitions for
review of this final action must be filed in the D.C. Circuit within 60
days from the date this final action is published in the Federal
Register.
CAA section 307(d), 42 U.S.C. 7607(d), contains rulemaking and
judicial review provisions that apply to certain EPA actions under the
CAA including, under section 307(d)(1)(V), ``such other actions as the
Administrator may determine.'' In accordance with section 307(d)(1)(V),
the Administrator determines that the provisions of section 307(d)
apply to this final action. EPA has complied with the procedural
requirements of section 307(d) during the course of this rulemaking.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide.
40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide.
Dated: February 26, 2019.
Andrew R. Wheeler,
Acting Administrator.
For the reasons stated in the preamble, parts 51 and 52 of chapter
I of title 40 of the Code of Federal Regulations are amended as
follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart G--Control Strategy
Sec. 51.121 [Amended]
0
2. Section 51.121 is amended by:
0
a. Revising the section heading;
0
b. Removing and reserving paragraph (a)(2);
0
c. Revising paragraph (a)(3);
0
d. In paragraph (b)(1) introductory text, removing the text ``section,
the'' and adding in its place the text ``section, each'';
0
e. In paragraph (b)(1)(i), adding the words ``during the ozone
season'' after the words ``NOX emissions'', adding the words
``applicable NOX ozone season'' before the word ``budget'',
and removing the text ``(except as provided in paragraph (b)(2) of this
section),'' and adding in its place a semicolon;
0
f. In paragraph (b)(1)(ii), removing the period and adding in its place
``; and'';
0
g. In paragraph (b)(1)(iii), adding the words ``NOX ozone
season'' before the word ``budget'';
0
h. Removing and reserving paragraph (b)(2);
0
i. In paragraph (c)(1), removing the text ``With respect to the 1-hour
ozone NAAQS:'';
0
j. In paragraph (c)(2), removing the text ``With respect to the 1-hour
ozone NAAQS, the portions of Missouri, Michigan, and Alabama'' and
adding in its place the text ``The portions of Alabama, Michigan, and
Missouri'';
0
k. Removing and reserving paragraph (d)(1);
0
l. Revising paragraph (d)(2);
0
m. In paragraph (e)(1), adding the words ``ozone season'' before the
word ``budget'';
0
n. Revising paragraph (e)(2)(i);
0
o. In paragraph (e)(2)(ii)(A), adding the words ``ozone season'' before
the word ``budget'';
0
p. In paragraph (e)(2)(ii)(B), removing the text ``De Kalb'' and adding
in its place the text ``DeKalb'';
0
q. In paragraph (e)(2)(ii)(E), removing the text ``St. Genevieve,''
and after the text ``St. Louis City,'' adding the text ``Ste.
Genevieve,'';
0
r. Removing paragraphs (e)(3), (4), and (5);
0
s. In paragraphs (f) introductory text and (f)(2) introductory text,
adding the words ``ozone season'' before the word ``budget'';
0
t. In paragraph (f)(2)(i)(B), removing the words ``mass
NOX'' and adding in their place the words ``NOX
mass'';
0
u. In paragraph (f)(2)(i)(C), removing ``paragraphs (f)(2)(i)(A) or
(f)(2)(i)(B)'' and adding in its place ``paragraph (f)(2)(i)(A) or
(B)'' and adding the words ``ozone season'' before the word ``budget'';
0
v. In paragraph (f)(2)(ii), removing the text ``(b)(1) (i)'' and
adding in its place the text ``(b)(1)(i)'';
0
w. In paragraph (g)(1), adding the words ``ozone season'' before the
word ``budget'';
0
x. In paragraph (g)(2)(i), adding the words ``during the ozone season''
after the words ``mass emissions'', adding the words ``ozone season''
before the word ``budget'', and removing the text ``as set forth for
the State in paragraph (g)(2)(ii) of this section,'';
0
y. Removing and reserving paragraph (g)(2)(ii);
0
z. In paragraph (g)(2)(iii), adding the words ``during the ozone
season'' after the words ``mass emissions'';
0
aa. In paragraph (h), removing the words ``of this part'';
0
bb. In paragraph (i) introductory text, adding the words ``ozone
season'' before the word ``budget'';
0
cc. In paragraphs (i)(2) and (3), removing the words ``of this part'';
0
dd. Revising paragraphs (i)(4) and (5);
0
ee. In paragraph (j)(1), adding the words ``ozone season'' before the
word ``budget'';
0
ff. In paragraph (k)(2), removing the text ``CAA'' and adding in its
place the text ``CAA, 42 U.S.C. 7414'';
0
gg. In paragraphs (l) and (m), removing the phrase ``of this part''
everywhere it appears;
0
hh. In paragraph (n), removing the text ``Sec. 52.31(c) of this
part'' and adding in its place the text ``40 CFR 52.31(c)'' and
removing the text ``Sec. 52.31 of this part'' and adding in its place
the text ``40 CFR 52.31'';
0
ii. In paragraph (o), removing the words ``of this part'';
0
jj. Removing and reserving paragraphs (p) and (q); and
0
kk. Revising paragraph (r).
The revisions read as follows:
Sec. 51.121 Findings and requirements for submission of State
implementation plan revisions relating to emissions of nitrogen oxides.
(a) * * *
(3) As used in this section, these terms shall have the following
meanings:
Nitrogen oxides or NOX means all oxides of nitrogen except nitrous
oxide (N2O), reported on an equivalent molecular weight
basis as nitrogen dioxide (NO2).
Ozone season means the period from May 1 to September 30 of a year.
Phase I SIP submission means a SIP revision submitted by a State on
or before October 30, 2000 in compliance with paragraph (b)(1)(ii) of
this section to limit projected NOX emissions during the
ozone season from sources in the
[[Page 8443]]
relevant portion or all of the State, as applicable, to no more than
the State's Phase I NOX ozone season budget under paragraph
(e) of this section.
Phase II SIP submission means a SIP revision submitted by a State
in compliance with paragraph (b)(1)(ii) of this section to limit
projected NOX emissions during the ozone season from sources
in the relevant portion or all of the State, as applicable, to no more
than the State's final NOX ozone season budget under
paragraph (e) of this section.
* * * * *
(d) * * *
(2) Each SIP submission under this section must comply with Sec.
51.103 (regarding submission of plans).
(e) * * *
(2)(i) The State-by-State amounts of the Phase I and final
NOX ozone season budgets, expressed in tons, are listed in
Table 1 to this paragraph (e)(2)(i):
Table 1 to Paragraph (e)(2)(i)--State NOX Ozone Season Budgets
------------------------------------------------------------------------
Phase I NOX ozone Final NOX ozone
season budget season budget
State (2004-2006) (2007 and
thereafter)
------------------------------------------------------------------------
Alabama........................... 124,795 119,827
Connecticut....................... 42,891 42,850
Delaware.......................... 23,522 22,862
District of Columbia.............. 6,658 6,657
Illinois.......................... 278,146 271,091
Indiana........................... 234,625 230,381
Kentucky.......................... 165,075 162,519
Maryland.......................... 82,727 81,947
Massachusetts..................... 85,871 84,848
Michigan.......................... 191,941 190,908
Missouri.......................... ................. 61,406
New Jersey........................ 95,882 96,876
New York.......................... 241,981 240,322
North Carolina.................... 171,332 165,306
Ohio.............................. 252,282 249,541
Pennsylvania...................... 268,158 257,928
Rhode Island...................... 9,570 9,378
South Carolina.................... 127,756 123,496
Tennessee......................... 201,163 198,286
Virginia.......................... 186,689 180,521
West Virginia..................... 85,045 83,921
------------------------------------------------------------------------
* * * * *
(i) * * *
(4) If the revision contains measures to control fossil fuel-fired
NOX sources serving electric generators with a nameplate
capacity greater than 25 MWe or boilers, combustion turbines or
combined cycle units with a maximum design heat input greater than 250
mmBtu/hr, then the revision may require some or all such sources to
comply with the full set of monitoring, recordkeeping, and reporting
provisions of 40 CFR part 75, subpart H. A State requiring such
compliance authorizes the Administrator to assist the State in
implementing the revision by carrying out the functions of the
Administrator under such part.
(5) For purposes of paragraph (i)(4) of this section, the term
``fossil fuel-fired'' has the meaning set forth in paragraph (f)(3) of
this section.
* * * * *
(r)(1) Notwithstanding any provisions of subparts A through I of 40
CFR part 96 and any State's SIP to the contrary, with regard to any
ozone season that occurs after September 30, 2008, the Administrator
will not carry out any of the functions set forth for the Administrator
in subparts A through I of 40 CFR part 96 or in any emissions trading
program provisions in a State's SIP approved under this section.
(2) Except as provided in 40 CFR 52.38(b)(10)(ii), a State whose
SIP is approved as meeting the requirements of this section and that
includes or included an emissions trading program approved under this
section must revise the SIP to adopt control measures that satisfy the
same portion of the State's NOX emissions reduction
requirements under this section as the State projected such emissions
trading program would satisfy.
Sec. 51.122 [Amended]
0
3. Section 51.122 is amended by:
0
a. In paragraph (c)(1)(ii), removing the text ``pursuant to a trading
program approved under Sec. 51.121(p) or'';
0
b. In paragraph (e), removing the first sentence;
0
c. In paragraph (f), removing the paragraph heading; and
0
d. Removing the second paragraph (g).
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
4. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
Sec. 52.38 [Amended]
0
5. In Sec. 52.38, paragraphs (b)(8)(ii), (b)(8)(iii)(A)(2),
(b)(9)(ii), and (b)(9)(iii)(A)(2) are amended by removing the text
``Sec. 51.121(p)'' and adding in its place the text ``Sec. 51.121''.
[FR Doc. 2019-03854 Filed 3-7-19; 8:45 am]
BILLING CODE 6560-50-P
