73 Fed. Reg. 22818 (Apr. 28, 2008)

Withdrawal of Federal Implementation Plans for the Clean Air Interstate Rule in 12 States

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Federal RegisterApr 28, 2008

73 Fed. Reg. 22818 (Apr. 28, 2008)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is withdrawing Federal Implementation Plans (FIPs) for the Clean Air Interstate Rule (CAIR) in Alabama, Arkansas, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana (SO2 FIP trading program only), Massachusetts, Mississippi, Missouri, and Virginia because these 12 states have previously submitted and received EPA approval of full state implementation plans (SIPs) to meet the CAIR requirements. When EPA issued the CAIR FIPs on April 28, 2006, it stated that it would withdraw the FIPs in a state in coordination with the approval of the CAIR SIP for that state. Also, when EPA approved the CAIR SIPs for these states, it explained that it would take a separate action to remove the CAIR FIPs for those states. EPA is now acting to formally withdraw the FIPs for 12 states. This action is necessary because EPA's approval of those states' CAIR SIPs corrected the deficiency that provided the basis for EPA's promulgation of the FIPs.

EPA is also removing the CAIR FIP regulatory text for Connecticut and New York. The FIPs for these states have already been automatically withdrawn pursuant to a rulemaking published on November 2, 2007. This ministerial action is necessary to correct the regulatory text.

DATES:

This final rule is effective on April 28, 2008.

ADDRESSES:

EPA has established a docket for this rulemaking under Docket ID number EPA-HQ-OAR-2007-0510. (The docket for the CAIR FIP rulemaking is EPA-HQ-OAR-2004-0076 and the docket for the CAIR is EPA-HQ-OAR-2003-0053.) All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., confidential business information 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. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

Rulemaking actions for the CAIR and CAIR FIPs are also available at EPA's CAIR Web site at http://www.epa.gov/cair . The Federal Register citations for the SIP approval actions for the states addressed in this rule are provided in section III below.

FOR FURTHER INFORMATION CONTACT:

Carla Oldham, Air Quality Planning Division, Office of Air Quality Planning and Standards, mail code C539-04, Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: 919-541-3347; fax number: 919-541-0824; e-mail address: oldham.carla@epa.gov.

SUPPLEMENTARY INFORMATION:

Outline

I. General Information

A. Does This Action Apply to Me?

B. Judicial Review

II. What Is the Background for This Rule?

III. What Is This Final Action?

A. Withdrawal of CAIR FIPs in 12 States

B. Removal of CAIR FIP Regulatory Text for New York and Connecticut

C. Updating the CAIR FIP Regulatory Text

IV. What Is the Rulemaking Procedure?

V. Statutory and Executive Order Reviews

I. General Information

A. Does This Action Apply to Me?

This action does not establish any control requirements. It withdraws the CAIR FIPs in Alabama, Arkansas, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana (SO2 FIP trading program only), Massachusetts, Mississippi, Missouri, and Virginia because these states previously have submitted and received full EPA approval of SIPs to meet the CAIR requirements. EPA promulgated the CAIR FIPs on April 28, 2006 (71 FR 25328). Categories and entities potentially regulated by the CAIR FIPs include the following:

Category	NAICS code	Examples of potentially regulated entities
Industry	221112	Fossil fuel-fired electric utility steam generating units.
Federal government	221122	Fossil fuel-fired electric utility steam generating units owned by the Federal government.
State/local/Tribal government	221122	Fossil fuel-fired electric utility steam generating units owned by municipalities.
	921150	Fossil fuel-fired electric utility steam generating units in Indian Country.
North American Industry Classification System.
Federal, state, or local government-owned and operated establishments are classified according to the activity in which they are engaged.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the CAIR FIPs in states that continue to be affected by the FIPs. To determine whether your facility is affected by the CAIR FIPs, in states where the FIP still applies, you should examine the definitions and applicability criteria in 40 CFR 97.102, 97.104, 97.105, 97.202, 97.204, 97.205, 97.302, 97.304, and 97.305.

B. Judicial Review

Under CAA section 307(b), judicial review of this final action is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit on or before June 27, 2008. Moreover, under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements.

II. What Is the Background for This Rule?

In a final rule published on April 25, 2005 (70 FR 21147), effective May 25, 2005, EPA made national findings that states had failed to submit SIPs required under section 110(a)(2)(D)(i) of the Clean Air Act (CAA) to address interstate transport with respect to the PM2.5 and 8-hour ozone national ambient air quality standards (NAAQS). These SIPs were due in July 2000, 3 years after the promulgation of the PM_2.5 and 8-hour ozone NAAQS. The findings started a 2-year clock for EPA to promulgate FIPs to address the requirements of section 110(a)(2)(D)(i). Under section 110(c)(1), EPA may issue a FIP any time after such findings are made and must do so unless a SIP revision correcting the deficiency is approved by EPA before the FIP is promulgated.

On May 12, 2005 (70 FR 25162), EPA issued the CAIR, which established the levels of NO_X and SO2 emission reduction requirements necessary for CAIR-affected states to address their significant 8-hour ozone and PM2.5 interstate transport. (See also CAIR revisions on April 28, 2006; 71 FR 25288 and December 13, 2006; 71 FR 74792.) NO_X emissions are precursors to 8-hour ozone and PM2.5; SO2 emissions are precursors to PM2.5. The CAIR affects 28 states and the District of Columbia (collectively, CAIR states) in the eastern half of the country. All CAIR states were required to submit their CAIR SIPs by September 11, 2006. For states subject to the CAIR requirements, an approved CAIR SIP corrects the section 110(a)(2)(D)(i) deficiency identified in the April 25, 2005 findings action.

In a final rule published on April 28, 2006 (71 FR 25328), EPA promulgated FIPs as a backstop to implement the CAIR requirements in all CAIR states. As the control requirement for the FIPs, EPA adopted the model trading rules for electric generating units (EGUs) that EPA provided in CAIR as a control option for states, with minor changes to account for Federal rather than state implementation. The FIPs were promulgated to regulate EGUs in the affected states and achieve the emissions reduction requirements established by the CAIR until states promulgated and received EPA approval of SIPs to achieve the reductions. In the FIP preamble, EPA stated it would withdraw the FIP in a state in coordination with the approval of the CAIR SIP for that state. Because EPA's authority to issue the FIPs was premised on the section 110(a)(2)(D)(i) deficiency identified in the April 25, 2005, findings action, once EPA fully approves a full SIP to correct that deficiency for a state, EPA no longer has the authority for the FIP in that state.

The CAIR FIPs also provide that states may submit “abbreviated” SIP revisions to replace or supplement specific elements of the FIPs, leaving the remainder of the overall FIPs in place, rather than submitting “full” CAIR SIP revisions that replace the FIPs. The abbreviated SIP revisions, when approved, will automatically replace or supplement the corresponding CAIR FIP provisions. (See 71 FR at 25345-25346 for further details.) This rule only addresses States that submitted full CAIR SIPs.

On November 2, 2007 (72 FR 62338), EPA published a final rule to amend the CAIR FIPs to make FIP withdrawal automatic upon the effective date of EPA's approval of a full SIP revision meeting the CAIR requirements. This rule became effective on January 16, 2008. For full CAIR SIPs whose EPA approvals are effective on or after that date, EPA will not need to take further action to withdraw the FIP. However, the automatic CAIR FIP withdrawal provisions do not apply retroactively. Therefore, EPA is issuing this separate final rule to withdraw the CAIR FIPs in states whose full CAIR SIP approvals have effective dates prior to January 16, 2008.

III. What Is This Final Action?

A. Withdrawal of CAIR FIPs in 12 States

In this final action, EPA is withdrawing CAIR FIPs in the 12 states listed below because the states previously have submitted and received EPA approval of full SIPs to meet the CAIR requirements and the SIP approvals are effective. These SIP approvals became effective prior to January 16, 2008. Therefore, as discussed above, the automatic FIP withdrawal provisions, which became effective on January 16, 2008, do not apply. EPA promulgated the FIPs based on findings that the affected states had failed to submit SIPs to address the requirements of CAA 110(a)(2)(D)(i). EPA's approval of the full CAIR SIPs corrects the 110(a)(2)(D)(i) deficiency for the listed states and thus also removes the basis for the FIPs in that state.

All of these 12 states have chosen to participate in the EPA-administered trading programs that EPA provided in the CAIR as highly cost-effective options for meeting the CAIR requirements. The SIP approval actions provide details on the states' trading programs. Except for Louisiana, the full SIPs address all of the CAIR requirements in the state. Louisiana adopted a full SIP to address the SO2 requirements for PM2.5, but adopted an abbreviated SIP to address the annual and ozone season NO_X requirements for PM2.5 and ozone. Therefore, EPA is only withdrawing the FIP SO2 requirements in Louisiana. The EPA has not yet taken any action under the relevant FIP trading programs for these states, such as recording the initial set of NO_X allocations, that would preclude EPA from fully withdrawing the FIPs in these states.

The final CAIR SIP approvals were published in the Federal Register on the dates given below.

Alabama

EPA's full approval of Alabama's CAIR SIP for the 8-hour ozone and PM_2.5 NAAQS was published on October 1, 2007 (72 FR 55659) and effective on October 31, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Alabama under 40 CFR 52.54 for annual and ozone season NO_X emissions and under 40 CFR 52.55 for to SO₂ emissions.

Arkansas

EPA's full approval of Arkansas's CAIR SIP for the 8-hour ozone NAAQS was published on September 26, 2007 (72 FR 54556) and effective November 26, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Arkansas under 40 CFR 52.184 for ozone season NO_X emissions.

Florida

EPA's full approval of Florida's CAIR SIP for the 8-hour ozone and PM_2.5 NAAQS was published October 12, 2007 (72 FR 58016) and effective November 13, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Florida under 40 CFR 52.540 for annual and ozone season NO_X emissions and under 40 CFR 52.541 for SO₂ emissions.

Georgia

EPA's full approval of Georgia's CAIR SIP for the PM_2.5 NAAQS was published on October 9, 2007 (72 FR 57202) and effective November 8, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Georgia under 40 CFR 52.584 for annual NO_X emissions and under 40 CFR 52.585 for SO₂ emissions.

Illinois

EPA's full approval of Illinois' CAIR SIP for the 8-hour ozone and PM_2.5 NAAQS was published on October 16, 2007 (72 FR 58528) and effective December 17, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Illinois under 40 CFR 52.745 for annual and ozone season NO_X emissions and under 40 CFR 52.746 for SO₂ emissions.

Iowa

EPA's full approval of Iowa's CAIR SIP for the 8-hour ozone and PM_2.5 NAAQS was published August 6, 2007 (72 FR 43539) and effective September 5, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Iowa under 40 CFR 52.840 for annual and ozone season NO_X emissions and under 40 CFR 52.841 for SO₂ emissions.

Kentucky

EPA's full approval of Kentucky's CAIR SIP for the 8-hour ozone and PM_2.5 NAAQS was published October 4, 2007 (72 FR 56623) and effective December 3, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Kentucky under 40 CFR 52.940 for annual and ozone season NO_X emissions and under 40 CFR 52.941 for SO₂ emissions.

Louisiana

EPA's approval of Louisiana's full CAIR SO₂ SIP for the PM_2.5 NAAQS was published on July 20, 2007 (72 FR 39741) and effective on September 18, 2007. Therefore, EPA is withdrawing the FIP requirements for Alabama under 40 CFR part 52.985 for SO₂ emissions. (Louisiana adopted an abbreviated SIP for annual and ozone season NO_X emissions for the PM_2.5 and 8-hour ozone NAAQS, respectively (72 FR 55064; September 28, 2007).)

Massachusetts

EPA's approval of Massachusetts's CAIR SIP for the ozone NAAQS was published on December 3, 2007 (72 FR 67854) and effective on December 3, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Massachusetts under 40 CFR 52.1140 for ozone season NO_X emissions.

Mississippi

EPA's approval of Mississippi's CAIR SIP for the 8-hour ozone and PM_2.5 NAAQS was published October 3, 2007 (72 FR 56268) and effective on November 2, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Mississippi under 40 CFR 52.1284 for annual and ozone season NO_X emissions and under 40 CFR 52.1285 for SO₂ emissions.

Missouri

EPA's approval of Missouri's CAIR SIP for the 8-hour ozone and PM_2.5 NAAQS was published on December 14, 2007 (72 FR 71073) and effective on December 14, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Missouri under 40 CFR 52.1341 for annual and ozone season NO_X emissions and under 40 CFR 52.1342 for SO₂ emissions.

Virginia

EPA's approval of Virginia's CAIR SIP for the 8-hour ozone and PM_2.5 NAAQS was published on December 28, 2007 (72 FR 73602) and effective on December 28, 2007. Therefore, EPA is withdrawing the CAIR FIP requirements for Virginia under 40 CFR 52.2440 for annual and ozone season NO_X emissions and under 40 CFR 52.2441 for SO₂ emissions.

B. Removal of CAIR FIP Regulatory Text for New York and Connecticut

EPA is also taking ministerial action to remove the CAIR FIP regulatory text for Connecticut and New York. The CAIR SIP approvals for these states became effective after the January 16, 2008 effective date of EPA's automatic FIP withdrawal rule (72 FR 62338; November 2, 2007). Therefore, the FIPs for these states were automatically withdrawn pursuant to that rule. This current action removes the associated FIP regulatory text to reflect that the FIPs have been withdrawn.

EPA's approval of Connecticut's CAIR SIP for the 8-hour ozone NAAQS was published and effective on January 24, 2008 (73 FR 4105). Therefore, the CAIR FIP for Connecticut was withdrawn on January 24, 2008 and EPA is removing the CAIR FIP regulatory text for Connecticut under 40 CFR 52.386 for ozone season NO_X emissions.

EPA's approval of New York's CAIR SIP for the 8-hour ozone and PM_2.5 NAAQS was published and effective on January 24, 2008 (73 FR 4109). Therefore, the CAIR FIPs for New York were withdrawn on January 24, 2008 and EPA is removing the CAIR FIP regulatory text for New York under 40 CFR 1684 for annual and ozone season NO_X emissions and under 40 CFR 52.1685 for SO₂ emissions. To meet the CAIR requirements, Connecticut and New York both chose to participate in the EPA-administered cap and trade programs that EPA provided in the CAIR.

In the future, EPA will be removing the CAIR FIP regulatory text for a state in the context of the CAIR SIP approval action for the state. Thus, a separate action to remove the CAIR FIP regulatory text will not be needed.

C. Updating the CAIR FIP Regulatory Text

This action updates the regulatory text in 40 CFR part 52 to reflect the withdrawal of the FIPs for the states discussed above. In some instances, EPA is not only removing the regulatory text, but also reserving the section where the regulatory text had been. This has no substantive impact and is being done solely to preserve the numbering of sections in the Code of Federal Regulations according a protocol established by the Office of the Federal Register.

IV. What Is the Rulemaking Procedure?

The EPA is taking this action as a final rule without providing an additional opportunity for public comment or a public hearing because EPA finds that the Administrative Procedure Act (APA) good cause exemption applies here. Section 553 of the APA, 5 U.S.C. 553(b)(B), provides that when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to public interest, the Agency may issue a rule without providing notice and an opportunity to comment.

The EPA has determined that it is not necessary or in the public interest to provide a public hearing or an additional opportunity for public comment on this action because the withdrawal of the FIPs in these states is a necessary ministerial act. As explained above, once EPA fully approves a CAIR SIP for a state and that approval is effective, EPA no longer has the authority for the CAIR FIPs in that state. Therefore, EPA is taking this action to remove the regulatory text that applies the FIP requirements to sources in states listed above. Since the SIPs are already effective and sources in these states are subject to the requirements of the SIP for their state, EPA's withdrawal of the FIPs has no practical consequences. Further, since the SIP approvals remove EPA's authority for the FIPs, EPA believes it has no option but to withdraw the FIPs. If EPA were to decide to reconsider or reverse a SIP approval action, it would take any appropriate action with regard to the FIP at that time. For these reasons, it would serve no useful purpose to provide an additional opportunity for public comment or a public hearing on this issue.

EPA also finds that it would be contrary to the public interest to delay issuing this rule in order to offer additional comment opportunities. Promulgation of this rule as soon as possible following the SIP approval serves to clarify that sources initially covered by the FIPs in these states are now covered by the requirements of the SIPs in these states.

For these reasons, EPA hereby finds for good cause, pursuant to section 553 of the APA, 5 U.S.C. 553(b)(B), that it would be unnecessary and contrary to public interest for EPA to offer an additional opportunity for public comment and a public hearing on this rule. Therefore, pursuant to CAA 307(d)(1) the requirements of 307(d), including the requirement for a public hearing, do not apply to this action.

Further, EPA previously provided public notice that the withdrawal of the FIP would be a necessary consequence of the SIP approval. In the CAIR FIP rulemaking, EPA explained that it would withdraw the FIP in a state in coordination with the CAIR SIP approval. In developing the FIP, EPA provided an opportunity for comment and held two public hearings. Further, in proposing to approve each SIP, EPA noted that the FIP withdrawal would be one necessary consequence of the SIP approval. This process provided the public with ample opportunity to comment on the substantive issues related to the SIP approval. To provide an additional opportunity for public comment and a public hearing on the FIP withdrawal action, which cannot alter or affect the terms of the SIP approval, would serve no useful purpose and is thus unnecessary.

EPA has also determined that it is appropriate for this rule to become effective immediately upon publication. Section 553(d) of the APA allows the agency to give a rule an effective date that is less than 30 days after the rules publication date in certain circumstances, two of which apply here. First, section 553(d)(1) allows the effective date to be less than 30 days after the publication date if the rule is “a substantive rule which * * * relieves a restriction.” This action withdraws a federal regulation for 12 states and thus qualifies as a substantive rule which relieves a restriction within the meaning of 553(d)(1). Second, section 553(d)(3) also allows the effective date to be less than 30 days after the publication date “as otherwise provided by the agency for good cause found and published with the rule.” As explained above, promulgation of this rule as soon as possible following the SIP approval serves to clarify that sources initially covered by the FIPs in these states are now covered by the requirements of the states' SIP.

V. Statutory and Executive Order Reviews

Under Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. This action is not a “major rule” as defined by 5 U.S.C. 804(2). The FIP withdrawal does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Because EPA has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104B4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of the UMRA.

This FIP withdrawal rule does not have substantial direct effects on the states, or on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, Federalism (64 FR 43255, August 10, 1999).

This action also does not significantly or uniquely affect the communities of Tribal governments, as specified in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000). The FIP withdrawal rule is not subject to Executive Order 13045, Protection of Children from Environmental Health and Safety Risks (62 FR 19885, April 23, 1997) because this action is not economically significant.

The FIP withdrawal rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) because this action is not a significant regulatory action under Executive Order 12866.

The FIP withdrawal rule does not involve changes to technical standards related to test methods or monitoring methods; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply.

The FIP withdrawal rule also does not involve special consideration of environmental justice-related issues as required by Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 of the CRA provides an exception to this requirement. For any rule for which an agency for good cause finds that notice and comment are impracticable, unnecessary, or contrary to the public interest, the rule may take effect on the date set by the Agency. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). The final rule will be effective on April 28, 2008.

The EPA's compliance with the above statutes and Executive Orders for the underlying rules are discussed in section X of the CAIR at 70 FR 25305 and in section IX of the CAIR FIPs at 71 FR 25365.