63860 Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 

a privilege that protects from disclosure 

documents and information about the 

content of those documents that are the 

product of a voluntary environmental 

assessment. The Privilege Law does not 

extend to documents or information (1) 

That are generated or developed before 

the commencement of a voluntary 

environmental assessment; (2) that are 

prepared independently of the 

assessment process; (3) that demonstrate 

a clear, imminent and substantial 

danger to the public health or 

environment; or (4) that are required by 

law. 

On January 12, 1998, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

Law, Va. Code Sec. 10.1–1198, 

precludes granting a privilege to 

documents and information ‘‘required 

by law,’’ including documents and 

information ‘‘required by Federal law to 

maintain program delegation, 

authorization or approval,’’ since 

Virginia must ‘‘enforce Federally 

authorized environmental programs in a 

manner that is no less stringent than 

their Federal counterparts * * *.’’ The 

opinion concludes that ‘‘[r]egarding 

§ 10.1–1198, therefore, documents or 

other information needed for civil or 

criminal enforcement under one of these 

programs could not be privileged 

because such documents and 

information are essential to pursuing 

enforcement in a manner required by 

Federal law to maintain program 

delegation, authorization or approval.’’ 

Virginia’s Immunity Law, Va. Code 

Sec. 10.1–1199, provides that ‘‘[t]o the 

extent consistent with requirements 

imposed by Federal law,’’ any person 

making a voluntary disclosure of 

information to a state agency regarding 

a violation of an environmental statute, 

regulation, permit, or administrative 

order is granted immunity from 

administrative or civil penalty. The 

Attorney General’s January 12, 1998 

opinion states that the quoted language 

renders this statute inapplicable to 

enforcement of any Federally authorized 

programs, since ‘‘no immunity could be 

afforded from administrative, civil, or 

criminal penalties because granting 

such immunity would not be consistent 

with Federal law, which is one of the 

criteria for immunity.’’ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its 

program consistent with the Federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on Federal 

enforcement authorities, EPA may at 

any time invoke its authority under the 

CAA, including, for example, sections 

113, 167, 205, 211 or 213, to enforce the 

requirements or prohibitions of the state 

plan, independently of any state 

enforcement effort. In addition, citizen 

enforcement under section 304 of the 

CAA is likewise unaffected by this, or 

any, state audit privilege or immunity 

law. 

IV. Proposed Action 

EPA is proposing to approve the 

Virginia SIP revision for the adoption of 

the new 1-hour primary SO2 NAAQS at 

a level of 75 ppb to the state regulations, 

which was submitted on July 12, 2011. 

EPA is soliciting public comments on 

the issues discussed in this document. 

These comments will be considered 

before taking final action. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the proposed approval of 

the adoption of the 1-hour primary SO2

NAAQS into Virginia’s regulation does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements, Sulfur oxides. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: October 3, 2011. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2011–26628 Filed 10–13–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 97 

[EPA–HQ–OAR–2009–0491; FRL–9479–1] 

RIN 2060–AR22 

Revisions to Federal Implementation 

Plans To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing or seeking 

comment on revisions to the final 

Transport Rule promulgated on August 

8, 2011. These revisions address 

discrepancies in unit-specific modeling 

assumptions that affect the proper 

calculation of Transport Rule state 

budgets and assurance levels in Florida, 

Louisiana, Michigan, Mississippi, 

Nebraska, New Jersey, New York, Texas, 

and Wisconsin, as well as new unit setasides in Arkansas and Texas. EPA is 


tkelley on DSK3SPTVN1PROD with PROPOSALS
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also proposing to revise allowance 

allocations to specific units covered by 

certain consent decrees that restrict the 

use of those allowances. These 

important technical fixes maintain the 

Transport Rule’s ability to achieve the 

elimination of significant contribution 

and interference with maintenance as 

quantified by the proper application of 

these methodologies. 

EPA is also proposing to amend the 

assurance penalty provisions of the rule 

to make them effective beginning 

January 1, 2014, rather than in 2012, in 

order to promote the development of 

allowance market liquidity as these 

revisions are finalized. EPA believes 

that deferring the effective date of the 

assurance provisions would provide 

additional confidence and would not 

compromise the air quality goals of the 

program. 

In addition, we are proposing to 

correct typographical errors in the rule. 

DATES: Comments: Comments must be 

received on or before November 14, 

2011 unless a public hearing is 

requested in which event comments 

must be received on or before November 

28, 2011. 

Public Hearing: On October 12, 2011, 

EPA published a document announcing 

that if a public hearing on this proposal 

is requested by October 19, 2011, it will 

be held on October 28, 2011, at 9 a.m. 

at USEPA. Please refer to the public 

hearing notice published at 76 FR 63251 

for additional information on the public 

hearing. 

EPA will provide further information 

about the hearing on its Web page if a 

hearing is requested. Oral testimony 

will be limited to the subject matter of 

the proposal, the scope of which is 

discussed below. Any member of the 

public may file a written statement by 

the close of the comment period. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2009–0491, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• Mail: Air and Radiation Docket and 

Information Center, U.S. Environmental 

Protection Agency, Mailcode: 2822T, 

1200 Pennsylvania Avenue, NW., 

Washington, DC 20460. 

• Hand Delivery: Air and Radiation 

Docket, EPA West Building, Room 3334, 

1301 Constitution Avenue, NW., 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2009– 

0491. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: 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., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA West 

Building, Room 3334, 1301 Constitution 

Avenue, NW., Washington, DC 20460. 

The Public Reading Room is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the Air and 

Radiation Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Gabrielle Stevens, U.S. Environmental 

Protection Agency, Clean Air Markets 

Division, MC 6204J, Ariel Rios Building, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460, telephone (202) 

343–9252, e-mail at 

stevens.gabrielle@epa.gov. Electronic 

copies of this document can be accessed 

through the EPA Web site at: http:// 

epa.gov/crossstaterule. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Regulated Entities. Entities regulated 

by this action primarily are fossil fuelfired boilers, turbines, and combined 

cycle units that serve generators that 

produce electricity for sale or cogenerate 

electricity for sale and steam. Regulated 

categories and entities include: 

Category NAICS code Examples of potentially regulated industries 

Industry ................................................................................. 2211, 2212, 2213 Electric service providers. 

This table is not intended to be 

exhaustive, but rather to provide a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities which EPA is now 

aware could potentially be regulated by 

this action. Other types of entities not 

listed in this table could also be 

regulated. To determine whether your 

facility, company, business, 

organization, etc., is regulated by this 

action, you should carefully examine 

the applicability criteria in §§ 97.404, 

97.504, and 97.604 of title 40 of the 

Code of Federal Regulations. If you have 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this 

proposal will also be available on the 


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63862 Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 

World Wide Web. Following signature 

by the EPA Administrator, a copy of this 

action will be posted on the transport 

rule Web site http://www.epa.gov/ 

airtransport. 

C. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. Send or deliver 

information identified as CBI only to the 

following address: Roberto Morales, 

OAQPS Document Control Officer 

(C404–02), U.S. EPA, Research Triangle 

Park, NC 27711, Attention Docket ID 

No. EPA–HQ–OAR–2009–0491. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

D. How is this preamble organized? 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. What should I consider as I prepare my 

comments for EPA? 

D. How is the preamble organized? 

II. Summary of Proposed Rule and 

Background 

III. Specific Revisions 

A. Budgets/New Unit Set-Aside Revisions 

B. Allowance Allocation Revisions to Units 

Covered by Existing Utility Consent 

Decrees 

C. Amend the Assurance Penalty 

Provisions To Make Them Effective 

Starting in 2014 

D. Correct Typographical Errors 

IV. Recordation of Transport Rule 

Allowances 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

II. Summary of Proposed Rule and 

Background 

EPA has identified errors or potential 

errors in unit-specific modeling 

assumptions that affect the proper 

calculation of Transport Rule state 

budgets in Florida, Louisiana, Michigan, 

Mississippi, Nebraska, New Jersey, New 

York, Texas, and Wisconsin, as well as 

new unit set-asides in Arkansas and 

Texas. EPA is proposing to take the 

following distinct actions to revise 

individual state budgets and new-unit 

set asides: (1) Revise Michigan’s annual 

NOX budget to account for an 

erroneously assumed selective catalytic 

reduction (SCR) emission control device 

at one unit; (2) revise Nebraska’s annual 

NOX budget to account for an 

erroneously assumed SCR emission 

control device at one unit; (3) revise the 

Texas SO2 budget to account for 

erroneously assumed flue gas 

desulphurization (FGD, or scrubber) 

emission control devices at three units 

and revised assumptions regarding flue 

gas treatment in existing scrubbers at 

seven units; (4) revise the Arkansas 

ozone-season new unit set-aside to 

account for erroneously omitted 

projected emissions from one new unit; 

(5) revise the Texas new unit set-aside 

to account for erroneously omitted 

projected emissions for SO2, ozoneseason NOX, and annual NOX; (6) revise 

New Jersey’s ozone season NOX, annual 

NOX, and SO2 budgets to account for an 

erroneously assumed FGD and SCR 

emission control devices at one unit, 

and taking into account operational 

constraints likely to necessitate noneconomic generation at six facilities; (7) 

revise Wisconsin’s SO2 and annual NOX

budgets to account for erroneously 

assumed FGD and SCR devices at two 

units; (8) revise New York’s SO2, annual 

NOX, and ozone season NOX budgets 

taking into account operational 

constraints likely to necessitate noneconomic generation at ten units; (9) 

revise Louisiana’s ozone season NOX

budget taking into account operational 

constraints likely to necessitate noneconomic generation at twelve units; 

(10) revise Mississippi’s ozone season 

NOX budget taking into account 

operational constraints likely to 

necessitate non-economic generation at 

four units; (11) revise the Texas annual 

NOX and ozone season NOX budgets 

taking into account operational 

constraints likely to necessitate noneconomic generation at seven units; and 

(12) revise Florida’s ozone-season NOX

budget taking into account the 

unavailability of a previously operating 

nuclear unit. See section III.A of this 

preamble for further explanation of 

these revisions. 

These proposed revisions to state 

budgets also entail revisions to the 

affected states’ assurance levels, as the 

variability limits for each state are 

calculated as a percentage of the 

applicable budget. See the final 

Transport Rule, 76 FR 48208, 48267–68, 

August 8, 2011 (explaining variability 

limit derivation). The purpose of these 

revisions is to establish state budgets 

and new unit set-asides that are 

consistent with the proper application 

of methodologies established in the final 

Transport Rule. 

The resulting budgets maintain 

significant emission reductions from 

historic levels and are consistent with 

the final Transport Rule’s methodology 

for defining significant contribution and 

interference with maintenance. The 

changes represent the proper 

application of the methodology 

established in the final Transport Rule. 

No changes to that methodology are 

being proposed, and EPA is not 

reopening the methodology established 

in the final Transport Rule for public 

comment. EPA is also not proposing any 

change to the levels of stringency (i.e., 

cost per ton) selected in the final 


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Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 63863 

Transport Rule’s determination of 

significant contribution and interference 

with maintenance and is not reopening 

that issue for public comment. See 

‘‘Significant Contribution Assessment 

TSD’’ in the docket for this rulemaking 

for a demonstration of how the revisions 

in this rulemaking represent the proper 

application of and are consistent with 

the methodology developed in the final 

Transport Rule. 

It is EPA’s intent, in conducting this 

rulemaking, to make the revisions in 

this proposal as well as to conduct a 

clearly defined, time-limited process by 

which any similarly justified revisions 

to the final Transport Rule state budgets 

are identified and effectuated in a 

timely and expeditious manner. To that 

end, EPA is seeking that all relevant 

information that may support similar 

revisions be submitted in full by the 

comment deadline on this rulemaking, 

such that the Agency may consider 

whether a subsequent and timely 

rulemaking should address any further 

revisions to the final Transport Rule 

state budgets. EPA believes that the 

likelihood of additional substantive 

revisions merited to the Transport Rule 

state budgets is limited, considering that 

EPA has already conducted several 

notice-and-comment processes through 

initial proposal of the Transport Rule 

and multiple notices of data availability 

(NODAs) to prompt the public to 

provide the relevant input information 

that informs the calculation of the 

Transport Rule state budgets. Please see 

section III.A of this preamble for a more 

detailed description of the type of 

information EPA is requesting in 

comments on this rulemaking for this 

purpose. 

EPA is also proposing revisions to 

allowance allocations at certain units in 

six states that are affected by existing 

utility consent decrees. EPA has 

identified provisions in certain utility 

consent decrees which the Agency 

believes would restrict the use of 

Transport Rule allowances allocated to 

certain units and effectively make 

certain Transport Rule reduction 

requirements marginally more stringent 

than intended by making certain 

allowances intended for compliance 

purposes unavailable. When 

establishing the state budgets under the 

final Transport Rule, EPA successfully 

accounted for the emission reduction 

requirements of these consent decrees; 

therefore, the Transport Rule state 

budgets sustain the environmental 

protection secured by those existing 

utility consent decrees. However, when 

dividing those state budgets into 

individual unit-level allowance 

allocations, EPA included allowance 

allocations to certain units that exceed 

those units’ allowable emissions under 

the terms of the applicable consent 

decree. Under these conditions, the 

consent decree provisions of concern 

identified in this proposal would 

determine the quantity of allocated 

allowances in excess of allowable 

emissions at the unit in question and 

prevent them from being available for 

compliance use by any source under the 

Transport Rule programs. Because EPA 

has already secured the environmental 

improvements required by the consent 

decrees by incorporating their emission 

reductions into the Transport Rule state 

budgets, there is no environmental need 

to prevent the allowances from being 

used for compliance by sources subject 

to the Transport Rule aside from those 

sources whose emissions are restricted 

by the terms of the consent decrees to 

which they are subject. Therefore, EPA 

is proposing to revise Transport Rule 

unit-level allowance allocations to the 

specific units affected by these consent 

decrees to reflect their maximum 

allowable emissions, such that none of 

the allowances affected by the 

provisions of concern are unnecessarily 

removed from use for compliance by 

other units. While EPA intends to 

perform this revision to benefit program 

implementation, EPA does not believe 

resolution of this issue is a necessary 

precondition for successful 

implementation of and compliance with 

the Transport Rule programs in 2012, 

because as described in section IV of 

this preamble, notwithstanding these 

proposed revisions, EPA will still be 

able to distribute 99.7 percent of all 

existing unit allowances under the state 

budgets established in the final 

Transport Rule by that rule’s November 

7 deadline. See section III.B of this 

preamble for further explanation of this 

revision. 

EPA is also proposing in this action 

to amend the assurance penalty 

provisions of the Transport Rule to 

make them effective January 1, 2014. 

This change takes account of the fact 

that the revisions described above are 

being proposed, and any information 

described above concerning requested 

additional revisions may be submitted, 

close to the commencement of the 

Transport Rule programs. The proposed 

amendment to the assurance provisions 

is intended to promote the development 

of allowance market liquidity as these 

revisions are finalized, thereby 

smoothing the transition from the Clean 

Air Interstate Rule (CAIR) programs to 

the Transport Rule programs in 2012. 

See section III.C of this preamble for 

further explanation of this revision. 

EPA is also proposing to correct 

typographical errors in certain sections 

of rule text in parts 52 and 97 in the 

final Transport Rule. See section III.D of 

this preamble for further explanation of 

these corrections. 

III. Specific Revisions 

A. Budget and New Unit Set-Aside 

Revisions 

After the final Transport Rule was 

published, EPA identified discrepancies 

in certain data assumptions that 

substantially affected the calculation of 

a few states’ budgets in the final rule. 

Therefore, EPA is proposing the 

following revisions: 

(1) Increase Michigan’s 2012 and 2014 

annual NOX budgets in accordance with 

a revision to the final Transport Rule 

analysis that erroneously assumed that 

an SCR exists at Monroe Unit 2. 

EPA is proposing to revise Michigan’s 

2012 and 2014 annual NOX budgets in 

accordance with a revision to the final 

Transport Rule analysis that erroneously 

assumed an SCR exists at Monroe Unit 

2. This SCR is planned, but is not 

expected to be online in 2012 or 2014. 

Therefore, EPA is proposing to adjust its 

2012 and 2014 projections to reflect 

projected emissions without an SCR at 

this unit. This would result in a 5,228 

ton increase in the state’s annual NOX

budget. See ‘‘Technical Revisions and 

Adjustments to State Budgets TSD’’ in 

the docket for this rulemaking for a 

quantitative demonstration of this 

proposed revision, as well as for the 

impacts this revision would have on the 

state’s assurance level, new unit setaside, and Indian country new unit setaside, and ‘‘Revisions to Unit Level 

Allocations under the FIP’’ in the docket 

for a quantitative demonstration of the 

effect of this revision on unit-level 

allocations under the FIP. 

This revised assumption about 

Monroe Unit 2 would also affect the 

calculation of Michigan’s potential 

ozone-season NOX budget (as well as the 

state’s assurance level, new unit setaside, Indian country new unit setaside, and unit-level allocations under 

the FIP) if that state is included in the 

Transport Rule ozone-season NOX

program as previously proposed (76 FR 

40662, July 11, 2011). EPA will address 

this issue, along with other public 

comments submitted on that 

rulemaking, when the Agency finalizes 

that rulemaking later this year. 

(2) Increase Nebraska’s 2012 and 2014 

annual NOX budgets in accordance with 

a revision to the final Transport Rule 

analysis that erroneously assumed that 

an SCR exists at Nebraska City Unit 1. 


tkelley on DSK3SPTVN1PROD with PROPOSALS
63864 Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 

1Corporate Sustainability Report’’, CPS Energy, 

2010. P.57. Retrieved from http:// 

www.cpsenergy.com/files/ 

Sustainability_Report.pdf. 

2Business Wire, (2006). NRG Announces 

Comprehensive Repowering Initiative [Press 

release]. Retrieved from http://phx.corporate-ir.net/ 

phoenix.zhtml?c=121544&p=irolnewsArticle_Print&ID=874575&highlight. 

EPA is proposing to increase 

Nebraska’s 2012 and 2014 annual NOX

budgets in accordance with a revision to 

the final Transport Rule analysis that 

erroneously assumed that an SCR exists 

at Nebraska City Unit 1. There is no SCR 

that is present, planned, or under 

construction at the unit. Therefore, EPA 

is proposing to adjust its baseline 

emission projections for the state to 

reflect projected emissions without an 

SCR at this unit. This adjustment results 

in an increase of 3,599 tons to the state’s 

annual NOX budget. See ‘‘Technical 

Revisions and Adjustments to State 

Budgets TSD’’ in the docket for this 

rulemaking for a quantitative 

demonstration of this proposed revision, 

as well as for the impacts this revision 

would have on the state’s assurance 

level, new unit set-aside, and Indian 

country new unit set-aside, and 

‘‘Revisions to Unit Level Allocations 

under the FIP’’ in the docket to this 

rulemaking for a quantitative 

demonstration of the effect of this 

proposed revision on unit-level 

allocations under the FIP. 

(3) Increase the Texas 2012 and 2014 

SO2 budgets in accordance with a 

revision to the final Transport Rule 

analysis that erroneously assumed that 

scrubbers exist at W.A. Parish Unit 6, 

J.T. Deely Unit 1, and J.T. Deely Unit 2, 

and that assumed full flue gas treatment 

in existing scrubbers at Martin Lake, 

Monticello, Sandow, W.A. Parish, and 

Oklaunion facilities. 

EPA is proposing to address several 

revisions to the modeling assumptions 

affecting the calculation of the Texas 

SO2 budget. In particular, EPA is 

proposing to increase the Texas SO2

budget in accordance with a revision to 

the final Transport Rule analysis that 

erroneously assumed flue-gas 

desulfurization (FGD) technology is 

installed on J.T. Deely Units 1 and 2 and 

W.A. Parish Unit 6 by 2012. At the time 

that EPA conducted its final Transport 

Rule analysis to determine state 

budgets, EPA had information (both 

from public sources, as cited below, as 

well as from a private subscription-only 

power sector pollution control database) 

showing that FGD retrofits for these 

sources were originally planned or 

announced to be installed by 2012.1 2

However, newer information shows that 

these FGDs are no longer scheduled to 

be installed in 2012. 

A number of facilities in Texas 

currently face limitations regarding the 

amount of flue gas that can be treated in 

their existing FGDs. In the final 

Transport Rule analysis, EPA relied on 

the SO2 removal efficiency that these 

facilities reported at their scrubbers to 

the Energy Information Administration 

(EIA). However, EPA has now 

determined that the facilities’ reports 

only intended to address the removal 

efficiency for the portion of the flue gas 

treated in the scrubber. For this reason, 

that removal efficiency should not be 

applied to the total amount of sulfur 

combusted in the coal consumed (as 

some of the flue gas at these units must 

be vented without being treated in the 

scrubber as originally constructed). 

When the SO2 removal rates are 

decreased to reflect the reported 

operational constraint of each affected 

scrubber’s flue gas treatment, the 

projected emission level for Texas, after 

all significant contribution identified in 

the final Transport Rule is addressed, 

correspondingly rises. 

Therefore, in accordance with the 

revised unit-level input assumptions 

regarding existing scrubbers and flue gas 

treatment at the Texas units described 

above, EPA is proposing to increase the 

state’s 2012 and 2014 SO2 budgets each 

by 70,067 tons. See ‘‘Technical 

Revisions and Adjustments to State 

Budgets TSD’’ in the docket for this 

rulemaking for a quantitative 

demonstration of how each of these 

unit-level adjustments affects the 

calculation of this proposed revision, as 

well as for the impacts this revision 

would have on the state’s assurance 

levels, new unit set-aside, and Indian 

country new unit set-aside. 

(4) Increase Arkansas’ ozone-season 

NOX new unit set-aside in accordance 

with a revision to the final Transport 

Rule’s calculation of the new unit setaside that erroneously omitted Plum 

Point Unit 1’s projected emissions. 

EPA is not proposing to adjust 

Arkansas’ ozone season NOX budget in 

this rulemaking. However, EPA is 

proposing to adjust the portion of that 

budget dedicated to the new unit setaside account. In the final Transport 

Rule, EPA had determined a 2 percent 

new unit set-aside for ozone season NOX

in the state. That value would be 

changed to 5 percent in this rulemaking. 

The revision is consistent with the new 

unit set-aside methodology described in 

the final rule. The updated value simply 

reflects the revised classification of one 

unit to be treated as a new unit for 

purposes of unit-level allowance 

allocation. This unit, Plum Point Unit 1, 

commenced commercial operation on or 

after January 1, 2010, and therefore 

should be considered a new unit under 

the final Transport Rule’s unit-level 

allocation methodology (76 FR 48290); 

however, the final Transport Rule 

erroneously omitted this unit’s 

projected emissions from the calculation 

of Arkansas’ ozone-season NOX new 

unit set-aside. Including this unit’s 

projected emissions in the calculation 

would yield a revised new unit set-aside 

of 5 percent of the state’s budget instead 

of the previous 2 percent value. See the 

‘‘Technical Revisions and Adjustments 

to State Budgets TSD’’ in the docket for 

this rulemaking for a quantitative 

demonstration of this proposed revision. 

This proposed revision to Arkansas’ 

new unit set-aside would necessarily 

result in changes to allowance 

allocations to existing units. See 

‘‘Revisions to Unit Level Allocations 

under the FIP’’ tables in the docket to 

this rulemaking for a quantitative 

demonstration of the effect of this 

revision on unit-level allocations under 

the FIP. 

(5) Increase Texas’ ozone-season NOX, 

annual NOX, and SO2 new unit setasides in accordance with a revision to 

the final Transport Rule’s calculations 

of the new unit set-asides that 

erroneously omitted Oak Grove Unit 2’s 

projected emissions. 

EPA is also proposing a revision to 

the calculation of the new unit setasides for ozone-season NOX, annual 

NOX, and SO2 in Texas. The updated 

values would simply reflect the revised 

classification of one unit to be treated as 

a new unit for purposes of unit-level 

allowance allocation. This unit, Oak 

Grove Unit 2, commenced commercial 

operation on or after January 1, 2010, 

and therefore should be considered a 

new unit under the final Transport 

Rule’s unit-level allocation 

methodology; however, the final 

Transport Rule erroneously omitted this 

unit’s projected emissions from the 

calculation of Texas’s ozone-season 

NOX, annual NOX, and SO2 new unit 

set-asides. Including this unit’s 

projected emissions in the calculation 

would yield revised new unit set-asides 

of 4 percent of the state’s ozone-season 

NOX budget, 4 percent of the state’s 

annual NOX budget, and 5 percent of the 

state’s SO2 budget. See the ‘‘Technical 

Revisions and Adjustments to State 

Budgets TSD’’ in the docket for this 

rulemaking for a quantitative 

demonstration of this proposed revision. 

(6) Increase New Jersey’s 2012 and 

2014 ozone-season NOX, annual NOX, 

and SO2 budgets in accordance with 

revisions to the final Transport Rule 

analysis that erroneously assumed that 


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an SCR and scrubber exist at BL 

England Unit 1 and to reflect 

operational constraints likely to 

necessitate non-economic dispatch at 

six other facilities in 2012. 

EPA is proposing to revise New 

Jersey’s ozone-season NOX, annual NOX, 

and SO2 budgets in accordance with 

revisions to assumed control 

technologies at BL England Unit 1 as 

well as operational constraints affecting 

units at six other facilities. The SCR and 

scrubber that had been planned to be 

installed at BL England Unit 1, and 

which EPA assumed would be in place 

in 2012, are not actually required by a 

New Jersey administrative order until 

December 2013. Furthermore, the 

agreement limits operation of the unit to 

the ozone season. Therefore, EPA is 

proposing to adjust New Jersey’s 2012 

state budgets to reflect projected 

emissions without an SCR or scrubber at 

this unit and its operation only during 

the ozone season. 

EPA is also proposing revisions to 

New Jersey’s state budgets based on 

information demonstrating that northern 

New Jersey is an out-of-merit-order 

dispatch area, meaning that units in that 

area are frequently dispatched out of 

regional economic order as a result of 

short-run limitations on the ability to 

meet local electricity demand with 

generation from outside the area. 

Conditions in this out-of-merit-order 

dispatch area are likely to necessitate 

what would otherwise be non-economic 

generation at six New Jersey plants 

(Bergen, Edison, Essex, Kearny, Linden, 

and Sewaren Generating Stations) in the 

immediate future. EPA did not consider 

these immediate-term conditions in its 

calculation of the New Jersey emission 

budgets in the final Transport Rule. EPA 

is proposing to adjust New Jersey’s 

emission budgets based on analysis of 

the frequency these units have recently 

been called to run for non-economic 

purposes, according to data provided by 

the utility operating those units. 

For this proposal, EPA has calculated 

the net change in the state’s 2012 and 

2014 total emissions (that inform the 

state budgets) to account for increased 

generation (and related emissions) from 

the specific units affected by the 

immediate-term non-economic 

constraints described above, as well as 

for a corresponding reduction in 

generation (and related emissions) at 

other units within the state, to maintain 

the electricity supply and demand 

equilibrium modeled in the final 

Transport Rule. 

EPA re-calculated the emissions from 

BL England Unit 1 and the six plants 

with non-economic generation to 

account for the input assumption 

changes described above. These 

calculations yield increases to the New 

Jersey 2012 state budgets for SO2 of 

2,096 tons, annual NOX of 420 tons, and 

ozone-season NOX of 592 tons; and 2014 

state budget increases for annual NOX of 

112 tons, and ozone-season NOX of 195 

tons. See ‘‘Technical Revisions and 

Adjustments to State Budgets TSD’’ in 

the docket for this rulemaking for a 

quantitative demonstration of this 

proposed revision, as well as for the 

impacts this revision would have on the 

state’s assurance level and new unit setaside, and ‘‘Revisions to Unit Level 

Allocations under the FIP’’ in the docket 

for a quantitative demonstration of the 

effect of this revision on unit-level 

allocations under the FIP. 

(7) Increase Wisconsin’s 2014 SO2

budget and 2012 and 2014 annual NOX

budget in accordance with a revision to 

the final Transport Rule analysis that 

erroneously assumed that an FGD exists 

at Weston Unit 3, wet FGDs (instead of 

dry FGDs) exist at Columbia Units 1 and 

2, and a SCR exists at John P. Madgett 

Unit 1. 

EPA is proposing to increase 

Wisconsin’s SO2 budget in accordance 

with revisions to the Weston Unit 3 and 

Columbia Units 1 and 2 FGD status in 

2014. EPA had assumed that a scrubber 

would be available at Weston Unit 3 in 

2014 in its base case modeling. There is 

no FGD expected to be online at the 

facility in 2014. The final Transport 

Rule did not assume an operating 

scrubber at Weston Unit 3 in 2012, but 

did assume the FGD would be in place 

and operating by 2014. Therefore, EPA 

is proposing to adjust Wisconsin’s 2014 

SO2 budget to reflect the unit’s 

operation without an FGD in 2014. 

EPA had also assumed that the two 

scrubbers being installed at Columbia 

Units 1 and 2 were wet scrubbers. 

Instead, dry scrubbers have been 

planned and approved at these units. In 

EPA’s modeling, the assumed removal 

rate of a new wet scrubber is 96 percent 

and a new dry scrubber is 92 percent. 

Therefore, the 2014 modeled remedy 

emissions from these units would be 

twice their current amount, if the 

assumption of wet scrubbers was 

changed to dry scrubbers for the facility. 

No change is needed for 2012 since EPA 

did not model any scrubbers operating 

at those units in that year. 

To account for these adjustments, 

EPA is proposing to increase the 

Wisconsin SO2 budget by a total of 

7,757 tons in 2014. 

EPA is also proposing to increase 

Wisconsin’s annual NOX budget in 2012 

and 2014. EPA had assumed a SCR 

would be installed at John P. Madgett 

Unit 1 in 2012 in its budget 

determination and remedy modeling. 

There is no SCR expected to be online 

in 2012 or 2014 at the unit. Therefore, 

EPA is proposing to adjust Wisconsin’s 

annual NOX budgets to reflect the unit’s 

operation without a SCR. This would 

result in a 2,473 ton increase to the 

state’s annual NOX budget. 

The revised assumptions about John 

P. Madgett Unit 1 would also affect the 

calculation of Wisconsin’s potential 

ozone-season NOX budget (as well as the 

state’s assurance level, new unit setaside, Indian country new unit setaside, and unit-level allocations under 

the FIP) if that state is included in the 

Transport Rule ozone-season NOX

program as previously proposed (76 FR 

40662, July 11, 2011). EPA will address 

this issue, along with other public 

comments submitted on that 

rulemaking, when the Agency finalizes 

that rulemaking later this year. 

See the ‘‘Technical Revisions and 

Adjustments to State Budgets TSD’’ in 

the docket for this rulemaking for a 

quantitative demonstration of this 

proposed revision, as well as for the 

impacts this revision would have on the 

state’s assurance level, new unit setaside, and Indian country new unit setaside, and ‘‘Revisions to Unit Level 

Allocations under the FIP’’ in the docket 

for a quantitative demonstration of the 

effect of this revision on unit-level 

allocations under the FIP. 

(8) Increase New York’s 2012 and 

2014 ozone-season NOX, annual NOX, 

and SO2 budgets in accordance with a 

revision to the final Transport Rule 

analysis that did not reflect operational 

constraints likely to necessitate noneconomic dispatch at certain units. 

EPA is proposing to increase the New 

York state ozone-season NOX, annual 

NOX, and SO2 budgets in accordance 

with revisions to the assumed operation 

of several specific units in 2012, to 

satisfy three specific immediate-term 

operational constraints documented by 

the New York Independent System 

Operator (NYISO). These three 

constraints are referred to here as the 

N–1–1 Contingency, the Minimum Oil 

Burn Rules, and out-of-merit-order 

dispatch conditions, which collectively 

affect the likely 2012 and 2014 

operations of specific units in the New 

York City and Long Island areas. 

The N–1–1 Contingency requires that 

certain units be available to deliver 

generation with advance notice of only 

30 seconds at certain times during the 

year. These specific units require 

several hours to reach the necessary 

level of generation under these 

contingency circumstances; therefore, 

the contingency requirement frequently 

necessitates their ongoing operation 


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whether or not the contingency is 

actually triggered at any given time. 

Based on information published by 

NYISO, EPA identified Arthur Kill 

Generating Station, Ravenswood, and 

Astoria Generating Station as needing to 

maintain minimum generation levels at 

two units in each facility to meet the N– 

1–1 Contingency constraint. 

The Minimum Oil Burn Rules require 

that certain units be able to immediately 

burn oil in the event of a natural gas 

supply disruption to the New York City 

and Long Island area infrastructure. 

Some units are incapable of 

immediately switching fuel, so they 

must burn a minimum amount of oil on 

an ongoing basis when operating to 

comply with this requirement. EPA 

determined that the Minimum Oil Burn 

Rules would require residual fuel oil 

consumption at the Arthur Kill 

Generating Station, Ravenswood, 

Astoria Generating Station, and 

Northport facilities. Based on 

information published by the NYISO, 

EPA determined that these units would 

burn oil in 2012 and 2014 at the same 

proportion of total projected heat input 

as shown for the share of historic heat 

input reported as residual fuel oil at 

those facilities. 

Data presented in the NYISO 2010 

Comprehensive Area Transmission 

Review Study and the NYISO Operating 

Study, Summer 2011, demonstrate that 

Long Island is an out-of-merit-order 

dispatch area, meaning that units in that 

area are frequently dispatched out of 

regional economic order as a result of 

short-run limitations on the ability to 

meet local electricity demand with 

generation from outside the area. 

Conditions in this out-of-merit-order 

dispatch area are likely to necessitate in 

the immediate future what would 

otherwise be non-economic generation 

at 3 units at the Northport facility. 

For this proposal, EPA has calculated 

the net change in the state’s total 

emissions (that inform the state budgets) 

to account for increased generation (and 

related emissions) from the specific 

units affected by the immediate-term 

non-economic constraints described 

above, as well as for a corresponding 

reduction in generation (and related 

emissions) at other units within the 

state, to maintain the electricity supply 

and demand equilibrium modeled in the 

final Transport Rule. These calculations 

yield increases to the New York 2012 

and 2014 state budgets for SO2 of 3,527 

tons, annual NOX of 3,485 tons, and 

ozone-season NOX of 1,911 tons. See 

‘‘Technical Revisions and Adjustments 

to State Budgets TSD’’ in the docket for 

this rulemaking for a quantitative 

demonstration of this proposed revision, 

as well as for the impacts this revision 

would have on the state’s assurance 

levels, new unit set-aside, and Indian 

country new unit set-aside. 

(9) Increase Louisiana’s 2012 and 

2014 ozone-season NOX budgets in 

accordance with a revision to the final 

Transport Rule analysis to reflect 

operational constraints likely to 

necessitate non-economic dispatch at 

twelve units. 

EPA is proposing revisions to 

Louisiana’s 2012 and 2014 state ozone 

season NOX budgets based on 

information demonstrating that the West 

of the Atchafalaya Basin (WOTAB), 

Downstream of Gypsy (DSG), and Amite 

South regions of Louisiana are out-ofmerit-order dispatch areas, meaning that 

units in those areas are frequently 

dispatched out of regional economic 

order as a result of short-run limitations 

on the ability to meet local electricity 

demand with generation from outside 

the area. Conditions in these out-ofmerit-order dispatch areas are likely to 

necessitate what would otherwise be 

non-economic generation at five 

Louisiana plants (R.S. Nelson, Nine 

Mile Point, Michoud, Little Gypsy, and 

Waterford) in the immediate future. EPA 

did not consider these immediate-term 

conditions in its calculation of the 

Louisiana emission budget in the final 

Transport Rule. EPA is proposing to 

adjust Louisiana’s ozone season NOX

emission budget based on analysis 

projecting the minimum frequency these 

units will have to run in the immediate 

term for non-economic purposes, 

according to data provided by the utility 

operating those units. 

For this proposal, EPA has calculated 

the net change in the state’s total 

emissions (that inform the state budgets) 

to account for increased generation (and 

related emissions) from the specific 

units affected by the immediate-term 

non-economic constraints described 

above, as well as for a corresponding 

reduction in generation (and related 

emissions) at other units within the 

state, to maintain the electricity supply 

and demand equilibrium modeled in the 

final Transport Rule. 

EPA re-calculated the emissions from 

the five plants with non-economic 

generation to account for the input 

assumption changes described above. 

These calculations yield increases to 

Louisiana’s 2012 and 2014 state budgets 

for ozone-season NOX of 4,231 tons. See 

‘‘Technical Revisions and Adjustments 

to State Budgets TSD’’ in the docket for 

this rulemaking for a quantitative 

demonstration of this proposed revision, 

as well as for the impacts this revision 

would have on the state’s assurance 

level, new unit set-aside, and Indian 

country new unit set-aside, and 

‘‘Revisions to Unit Level Allocations 

under the FIP’’ in the docket for a 

quantitative demonstration of the effect 

of this revision on unit-level allocations 

under the FIP. 

(10) Increase Mississippi’s 2012 and 

2014 ozone-season NOX budgets in 

accordance with a revision to the final 

Transport Rule analysis to reflect 

operational constraints likely to 

necessitate non-economic dispatch at 

certain units. 

EPA is proposing revisions to 

Mississippi’s state ozone season NOX

budget based on information 

demonstrating that the Mississippi 

Region is an out-of-merit-order dispatch 

area, meaning that units in that area are 

frequently dispatched out of regional 

economic order as a result of short-run 

limitations on the ability to meet local 

electricity demand with generation from 

outside the area. Conditions in this outof-merit-order dispatch area are likely to 

necessitate what would otherwise be 

non-economic generation at three 

Mississippi plants (Rex Brown, Gerald 

Andrus, and Baxter Wilson) in the 

immediate future. EPA did not consider 

these immediate-term conditions in its 

calculation of the Mississippi emission 

budget in the final Transport Rule. EPA 

is proposing to adjust Mississippi’s 2012 

and 2014 ozone season NOX emission 

budgets based on analysis projecting the 

minimum frequency these units will 

have to run in the immediate-term for 

non-economic purposes, according to 

data provided by the utility operating 

those units. 

For this proposal, EPA has calculated 

the net change in the state’s total 

emissions (that inform the state budgets) 

to account for increased generation (and 

related emissions) from the specific 

units affected by the immediate-term 

non-economic constraints described 

above, as well as for a corresponding 

reduction in generation (and related 

emissions) at other units within the 

state, to maintain the electricity supply 

and demand equilibrium modeled in the 

final Transport Rule. 

EPA re-calculated the emissions from 

the three plants with non-economic 

generation to account for the input 

assumption changes described above. 

These calculations yield increases to 

Mississippi’s 2012 and 2014 state 

budgets for ozone-season NOX of 2,136 

tons. See ‘‘Technical Revisions and 

Adjustments to State Budgets TSD’’ in 

the docket for this rulemaking for a 

quantitative demonstration of this 

proposed revision, as well as for the 

impacts this revision would have on the 

state’s assurance level, new unit setaside, and Indian country new unit setVerDate Mar<15>2010 15:18 Oct 13, 2011 Jkt 226001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\14OCP1.SGM 14OCP1

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aside, and ‘‘Revisions to Unit Level 

Allocations under the FIP’’ in the docket 

for a quantitative demonstration of the 

effect of this revision on unit-level 

allocations under the FIP. 

(11) Increase Texas’s 2012 and 2014 

annual and ozone-season NOX budgets 

in accordance with a revision to the 

final Transport Rule analysis to reflect 

operational constraints likely to 

necessitate non-economic dispatch at 

certain units. 

EPA is proposing revisions to Texas’s 

2012 and 2014 state annual and ozone 

season NOX budgets based on 

information demonstrating that the West 

of the Atchafalaya Basin (WOTAB) and 

Western Regions are out-of-merit-order 

dispatch areas, meaning that units in 

those areas are frequently dispatched 

out of regional economic order as a 

result of short-run limitations on the 

ability to meet local electricity demand 

with generation from outside the area. 

Conditions in these out-of-merit-order 

dispatch areas are likely to necessitate 

what would otherwise be non-economic 

generation at two Texas plants (Lewis 

Creek and Sabine) in the immediate 

future. EPA did not consider these 

immediate-term conditions in its 

calculation of the Texas emission 

budgets in the final Transport Rule. EPA 

is proposing to adjust Texas’s emission 

budgets based on analysis projecting the 

minimum frequency these units will 

have to run in the immediate-term for 

non-economic purposes, according to 

data provided by the utility operating 

those units. 

For this proposal, EPA has calculated 

the net change in the state’s total 

emissions (that inform the state budgets) 

to account for increased generation (and 

related emissions) from the specific 

units affected by the immediate-term 

non-economic constraints described 

above, as well as for a corresponding 

reduction in generation (and related 

emissions) at other units within the 

state, to maintain the electricity supply 

and demand equilibrium modeled in the 

final Transport Rule. 

EPA re-calculated the emissions from 

the two plants with non-economic 

generation to account for the input 

assumption changes described above. 

These calculations yield increases to 

Texas’s 2012 and 2014 state budgets for 

annual NOX of 1,375 tons and ozoneseason NOX of 1,375 tons. See 

‘‘Technical Revisions and Adjustments 

to State Budgets TSD’’ in the docket for 

this rulemaking for a quantitative 

demonstration of this proposed revision, 

as well as for the impacts this revision 

would have on the state’s assurance 

level, new unit set-aside, and Indian 

country new unit set-aside, and 

‘‘Revisions to Unit Level Allocations 

under the FIP’’ in the docket for a 

quantitative demonstration of the effect 

of this revision on unit-level allocations 

under the FIP. 

(12) Increase Florida’s 2012 ozoneseason NOX budget in accordance with 

a revision to the final Transport Rule 

analysis to reflect the unavailability of 

Crystal River Unit 3, a nuclear unit. 

EPA’s power sector analysis in the 

final Transport Rule that informed its 

calculation of Florida’s state ozoneseason budget included generation from 

Crystal River Unit 3, a nuclear unit that 

has operated historically. However, 

utilities in Florida have notified EPA 

that this unit will be offline for repairs 

throughout 2012 and is expected to 

return to service in 2013. As such, EPA 

expects that the generation previously 

projected in the Transport Rule analysis 

from this unit in 2012 will necessarily 

have a different origin with different 

emission consequences that should be 

considered in the calculation of 

Florida’s ozone-season NOX state 

budget. EPA has calculated that this 

replacement generation would yield an 

increase of 819 tons of ozone-season 

NOX in 2012 and is proposing to 

increase Florida’s 2012 ozone-season 

NOX budget by 819 tons, accordingly. 

See ‘‘Technical Revisions and 

Adjustments to State Budgets TSD’’ in 

the docket for this rulemaking for a 

quantitative demonstration of this 

proposed revision, as well as for the 

impacts this revision would have on the 

state’s assurance level, new unit setaside, and Indian country new unit setaside, and ‘‘Revisions to Unit Level 

Allocations under the FIP’’ in the docket 

for a quantitative demonstration of the 

effect of this revision on unit-level 

allocations under the FIP. 

EPA has also received and is making 

available in the public docket for this 

proposal additional unit-level 

information provided by Florida 

utilities addressing assumptions of each 

unit’s ability to control ozone-season 

NOX. EPA requests comment on all 

aspects of the data in the docket, 

including whether the emission data 

provided in this information is a more 

accurate representation of achievable 

NOX emission rates in 2012, and 

whether using this data would be 

consistent with the methodology used 

in the Transport Rule. EPA specifically 

requests comment on whether this 

information could support a further 

revision to the state’s ozone-season NOX

budget, and if so, how such a revision 

should be calculated. See ‘‘Information 

Submitted by Florida Utilities’’ in the 

docket for this rulemaking. 

Further Explanation on Revisions and 

Request for Comments. All of the 

proposed revisions to state budgets and 

new unit set-asides described above 

would correspondingly affect unit-level 

allowance allocations in the states 

involved. Specifically, any changes to 

the levels of new unit set-asides or state 

budgets would be carried through to 

unit-level allocations based on the final 

Transport Rule allocation methodology 

for existing units (including any 

amendments made to specific unit-level 

allocations in this rulemaking, 

described below). For example, if a state 

budget would increase, then the share of 

that increase going to existing units 

would be apportioned based on the final 

Transport Rule’s allocation 

methodology to existing units (aside 

from specific unit-level allocation 

adjustments included in this proposal 

pertinent to utility consent decrees, 

discussed below in section III.B of this 

preamble). Unit-level allocations to 

potential covered sources under the 

Transport Rule have been updated to 

reflect all of the proposed revisions 

described in this proposal and are set 

forth in the ‘‘Revisions to Unit Level 

Allocations under the FIP’’ TSD in the 

docket for this rulemaking. 

EPA evaluated the likely air quality 

impacts of the revisions presented above 

using the air quality assessment tool, on 

a state-by-state and case-by-case basis, 

for the SO2 budget increases in 2014 for 

Texas, New York, and Wisconsin, and 

compared those estimates to the final 

Transport Rule air quality analysis. The 

results do not change the conclusions 

that EPA made about the 

appropriateness of controlling upwind 

emissions at the cost-effective 

thresholds selected in the final 

Transport Rule to successfully quantify 

and eliminate significant contribution to 

nonattainment and interference with 

maintenance at downwind receptors. 

For more information, this evaluation 

can be found in the ‘‘Significant 

Contribution Assessment Technical 

Support Document’’ in the docket for 

this rulemaking. 

For this proposal, EPA also assessed 

this proposal’s revisions to annual NOX

and ozone-season NOX state budgets 

against each state’s total NOX emission 

inventories which informed the air 

quality projections in the final 

Transport Rule analysis. The annual 

NOX budget increases for Michigan, 

Nebraska, New Jersey, New York, Texas, 

and Wisconsin are 5,228, 3,599, 112, 

3,485, 1,375 and 2,473 tons, 

respectively. Comparing those budget 

increases to the total 2014 annual NOX

emission inventories in those states 

under the final Transport Rule’s control 


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3Further, EPA notes that the proposed rule text 

includes tables that are complete in that they show, 

for each Transport Rule trading program, both (i) 

The amounts for certain state budgets, new unit setasides, Indian country set-asides, and state 

variability limits that reflect proposed revisions 

discussed in this notice; and (ii) the amounts for 

other state budgets, new unit set-asides, Indian 

country set-asides, and state variability limits 

amounts that do not reflect any proposed revisions 

discussed in this notice. Except as discussed below 

in this section of the notice, EPA is not requesting 

comment on those budgets, new unit set-asides, 

Indian country set-asides, and variability limits that 

are shown in the proposed rule text tables but that 

do not reflect the proposed revisions discussed in 

this notice. For example, the budget and new unit 

set-aside revisions discussed in this section of the 

notice involve only a limited number of states (i.e., 

Arkansas, Florida, Louisiana, Michigan, 

Mississippi, Nebraska, New Jersey, New York, 

Texas, and Wisconsin). Except as discussed below 

in this section of the notice, EPA is not reopening, 

or requesting comment on, amounts in the proposed 

rule text tables for any other states. By further 

example, this section of the notice discusses a 

revision of Arkansas’ new unit set-aside, but not of 

Arkansas’ budget. Except as discussed below in this 

section of the notice, EPA is not requesting 

comment on the amount of Arkansas’ budget. 

scenario analysis, EPA calculates that 

these revisions represent increases of 

1.2 percent, 2.1 percent, 0.1 percent, 0.8 

percent, 0.1 percent, and 1.0 percent, 

respectively, of the total annual NOX

emission inventories for those states in 

the final Transport Rule’s 2014 control 

scenario analysis. See the ‘‘Significant 

Contribution Assessment TSD’’ in the 

docket for this rulemaking for more 

details. These increases represent only a 

small portion of each state’s total NOX

emissions. 

The ozone-season NOX budget 

increases in 2014 for Louisiana, 

Mississippi, New Jersey, New York, and 

Texas are 4,231, 2,136, 195, 1,911, and 

1,375 tons, respectively. Comparing 

those budget increases to the total 2014 

ozone-season NOX emission inventories 

in those states under the final Transport 

Rule’s control scenario analysis, EPA 

calculates that these revisions represent 

increases of 2.2 percent, 2.4 percent, 0.2 

percent, 1.0 percent, and 0.2 percent, 

respectively, of the total ozone-season 

NOX emission inventories for those 

states in the final Transport Rule’s 2014 

control scenario analysis. See the 

‘‘Significant Contribution Assessment 

TSD’’ in the docket for this rulemaking 

for more details. These increases 

represent only a small portion of each 

state’s total ozone-season NOX

emissions. 

EPA requests comment on the revised 

unit-level and utility-system operational 

information described above and on the 

corresponding proposed revisions in 

state budgets, variability limits, new 

unit set-asides, Indian country new unit 

set-asides, and unit-level allocations 

resulting from the application of such 

revised information using the 

methodologies set forth in the final 

Transport Rule for developing state 

budgets, variability limits, new unit setasides, Indian country new unit setasides, and unit-level allocations. EPA 

is not requesting comment on those 

methodologies set forth in the final 

Transport Rule. For example, EPA is not 

seeking comment on the methodology 

by which existing unit allocations are 

determined with regard to any given 

Transport Rule state budget.3

Moreover, EPA recognizes that parties 

may be aware of other immediate-term 

unit-specific operational constraints not 

accounted for in the final Transport 

Rule whose inclusion may warrant 

revisions in state budgets, with 

associated revisions to the state 

assurance levels and unit-level 

allocations for existing units. EPA has 

already provided several 

opportunities—through the proposed 

Transport Rule and subsequent notices 

of data availability—for the public, 

including stakeholders, to present unitlevel information demonstrating 

constraints on immediate-term 

operations. However, EPA will accept— 

by the deadline for comment on this 

proposal—submission of additional 

unit-level operational information that 

would have a material impact on the 

calculation of Transport Rule state 

budgets (with associated impacts on 

corresponding assurance levels and 

unit-level allocations for existing units). 

For this purpose, EPA intends a 

‘‘material impact’’ to reflect a 

corresponding recalculation of the 

relevant state budget that would be at 

least 1 percent different from that 

budget’s value as calculated in the final 

Transport Rule (76 FR 48208, August 8, 

2011). EPA remains focused on 

successful implementation of the 

Transport Rule programs and does not 

believe that a change of less than 1 

percent in a state’s budget would be a 

meaningful action to further this goal. 

As a result, EPA encourages 

commenters to consider whether or not 

revisions to a given unit’s or group of 

units’ input assumptions would yield a 

material impact of at least a 1 percent 

difference in the calculation of the 

relevant state budget before submitting 

this information to EPA for review. 

EPA is therefore accepting for review 

information provided in comments on 

this rulemaking specifically addressing 

the following topics for specific electric 

generating units: 

(1) Post-combustion pollution control 

equipment (such as SCRs and FGDs) 

assumed in the final Transport Rule 

analyses to be present by 2012 at the 

unit in question; and/or 

(2) Immediate-term (i.e., binding on 

2012) operational requirements 

necessitating non-economic generation 

at the unit in question, including data 

that demonstrate why the unit in 

question is required to generate in the 

immediate term for reasons other than 

the regional economic sale of electricity, 

and how often during the ozone season 

and during the calendar year that such 

non-economic generation is necessitated 

from that unit. 

EPA will review information provided 

in comments addressing the topics 

described above and will determine if 

any of the information merits a 

subsequent proposal of revisions to the 

Transport Rule programs beyond the 

actions presented in this proposal. 

B. Allowance Allocation Revisions to 

Units Covered by Existing Utility 

Consent Decrees 

After the final Transport Rule was 

published, EPA determined that while 

the state budgets accurately 

incorporated the emission reduction 

requirements of existing utility consent 

decrees, the unit-level allowance 

allocations under the Transport Rule 

FIPs did not properly account for 

provisions in those consent decrees that 

effectively require the surrender, or 

restrict the trading, of ‘‘excess’’ 

Transport Rule allowances. As a result, 

Transport Rule allowance allocations to 

certain units may unintentionally 

reduce the availability of some of those 

allowances to other sources, given the 

restrictions on the use of those 

allowances by the initial recipient unit 

imposed by the applicable consent 

decree. 

In today’s action, EPA is proposing to 

add a constraint on Transport Rule unitlevel allowance allocations designed to 

reflect the maximum allowable 

emissions at the units affected by 

existing utility consent decrees which 

contain annual tonnage limits and 

require the surrender or restrict trading 

of Transport Rule allowances allocated 

in excess of annual tonnage limits. See 

‘‘Assessment of Impact of Consent 

Decree Annual Tonnage Limits on 

Transport Rule Allocations TSD’’ in the 

docket for this rulemaking for 

information on the consent decrees 

covered by the proposed addition of the 

new constraint for purposes of 

determining unit-level allocations. 

The addition of this constraint would 

align unit level allocations for units 

described in several existing Federallyenforceable consent decrees with the 

annual tonnage limits in those decrees. 

This constraint would prevent heat 


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input-based allocations from exceeding 

the terms of Federally-enforceable 

consent decrees that contain annual 

tonnage limits for SO2 and/or NOX. 

Because existing consent decrees that 

establish annual tonnage limits for SO2

and/or NOX do so at the system or 

facility level, EPA calculated unit-level 

annual tonnage limit equivalents (unitlevel caps) for purposes of allocating 

allowances to individual units. EPA is 

not seeking comment on any elements 

of the allocation methodology finalized 

in the final Transport Rule (76 FR 

48288–90). Rather, EPA is seeking 

comment only on the addition of a unitlevel consent decree constraint and 

unit-level cap apportionment 

methodology. 

The proposed additional constraint 

would affect unit-level allocations in six 

states—Alabama, Indiana, Kansas, 

Kentucky, Ohio, and Tennessee—with 

units subject to existing Federallyenforceable consent decree annual 

tonnage limits. These consent decree 

requirements have already been 

accounted for in the determination of 

budgets for these states. EPA is 

proposing to establish unit-level caps 

for 82 units covered by annual tonnage 

limits in Federally-enforceable consent 

decrees in these six states. The addition 

of this constraint would not alter any 

state budget. This additional constraint 

also would have no impact on existing 

unit-level allocations in states that do 

not contain units covered by a 

Federally-enforceable consent decree 

with annual tonnage limits. 

EPA is proposing to revise the 

Transport Rule unit-level allocations for 

the specific units subject to these 

consent decrees, such that allowance 

allocations would be constrained by 

both historical emissions (as described 

in the final Transport Rule (76 FR 

48290)) and a unit-level cap derived 

from the annual tonnage limit in the 

Federally-enforceable consent decree. 

Although these revisions would not 

alter the state budgets, they would have 

the effect of increasing the number of 

allowances within the budget that are 

available for use for compliance 

purposes and that would not otherwise 

be available without this proposed 

change to the allocation of allowances— 

such that the total number of allowances 

available would equal the state’s 

emission budget, as intended. These 

proposed revisions are thus intended to 

revise the application of the final 

Transport Rule’s unit-level allowance 

allocation methodology to enable the 

proper implementation of state budgets 

under the programs. While EPA intends 

to perform this revision to benefit 

program implementation, EPA does not 

believe resolution of this issue is a 

necessary precondition for successful 

implementation of and compliance with 

the Transport Rule programs in 2012, as 

notwithstanding these proposed 

revisions, EPA will still be able to 

distribute 99.7 percent of all existing 

unit allowances under the state budgets 

established in the final Transport Rule 

by that rule’s November 7 deadline. See 

section IV of this preamble for further 

information about allowance 

recordation. 

EPA calculated unit-level caps for 

each unit subject to an SO2 and/or NOX

annual tonnage limit contained in a 

Federally-enforceable consent decree. A 

unit-level cap is an apportionment of 

the applicable system- or facility-wide 

consent decree annual tonnage limit. 

The apportionment of a system- or 

facility-wide consent decree annual 

tonnage limit to a unit level is solely for 

the purposes of Transport Rule 

allocations and does not modify, or 

create additional, consent decree 

requirements or limitations. 

EPA is not proposing to limit 

allocations to units covered by consent 

decrees that do not contain SO2 and or 

NOX annual tonnage limits. The Agency 

determined that calculation of unit-level 

caps where annual tonnage limits do not 

exist would require the use of unit-level 

projections whose application in setting 

unit-level allocations would be difficult 

to support and that, in any event, 

adjustment of unit—level allocations 

using such unit-level caps would not be 

necessary. Calculating a unit-level cap 

from other consent decree directives 

would require projections about future 

utilization and emissions performance 

of each unit involved, increasing the 

complexity and uncertainty of the 

approach. Further, EPA believes that 

there are few Transport Rule allowances 

that might be rendered unavailable for 

compliance by the consent decrees that 

contain trading restrictions or allowance 

surrender requirements but that do not 

contain annual tonnage limits. 

EPA is proposing to follow a two-step 

methodology to identify the specific 

unit-level allocation constraints that 

would be associated with this proposed 

additional constraint. First, EPA would 

determine if the annual tonnage limit in 

an existing Federally-enforceable 

consent decree that is already reflected 

in a state budget is more restrictive than 

the unit-level allocations under the 

Transport Rule by comparing the 

Federally-enforceable consent decree 

annual tonnage limits for calendar year 

2012 and thereafter to aggregate unitlevel allocations (as determined using 

the approach finalized in the final 

Transport Rule) for all units affected by 

the annual tonnage limit. If in 2012 or 

thereafter the collective unit-level 

allocations are greater than the 

Federally-enforceable consent decree 

annual tonnage limit, EPA would apply 

unit-level caps equal, in aggregate, to 

the Federally-enforceable consent 

decree annual tonnage limit. 

If a unit is shut down by a Federallyenforceable consent decree or, in the 

case of SO2, repowers to natural gas or 

shuts down, the unit-level cap would be 

calculated as zero in any year following 

the required shut down or repower 

when the unit would otherwise receive 

allocations using the approach in the 

final Transport Rule (76 FR 48287 and 

48289–90). 

Second, EPA would calculate unitlevel caps for 2012 and thereafter on 

Transport Rule allowances for each unit 

covered by a system- or facility-wide 

annual tonnage limit in a Federallyenforceable consent decree that is more 

restrictive than current allocations for 

the units involved. To accomplish this, 

EPA would first calculate a ratio, 

expressed as a percentage, comparing 

the annual tonnage limit in the 

Federally-enforceable consent decree to 

the aggregate allocations listed in the 

‘‘Final Transport Rule Unit Level 

Allocations under the FIP’’ (http://www.

epa.gov/crossstaterule/actions.html) for 

units covered by the Federallyenforceable consent decree annual 

tonnage limit to the annual tonnage 

limit. EPA would then multiply this 

ratio by the unit-level allocation listed 

in the ‘‘Final Transport Rule Unit Level 

Allocations under the FIP’’ (http://www.

epa.gov/crossstaterule/actions.html) for 

each unit involved. The allocations for 

a given year would be limited to this 

unit-level cap. As noted above, in some 

situations the unit level cap for a 2012 

or thereafter would be zero if a 

Federally-enforceable consent decree 

requires the shutdown or repowering of 

a unit. 

An example of how EPA would 

determine unit level caps follows: 

Step 1—EPA determines that facility ABC 

consists of two units subject to both a 

Federally-enforceable consent decree annual 

tonnage limit and the Transport Rule NOX

annual program. The consent decree systemwide annual tonnage limit is 3,000 tons in 

calendar year 2012. The NOX allowance heat 

input-based allocation (as described in the 

final Transport Rule (76 FR 48288–90)) for 

the two units in calendar year 2012 is 4,000 

allowances to Unit 1 and 2,000 allowances to 

Unit 2—a total of 6,000 allowances. Because 

the total of the allowances allocated to the 

two units is higher than the annual tonnage 

limit, EPA needs to calculate unit-level caps 

for Unit 1 and Unit 2. 

Step 2a—The consent decree system-wide 

annual tonnage limit of 3,000 tons is divided 


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by the system-wide heat input-based 

allocations of 6,000 tons resulting in a ratio 

of 0.5, or 50 percent. 

Step 2b—EPA calculates the unit-level cap 

for Unit 1 as 4,000 allowances × 50 percent, 

or 2,000 allowances, and for Unit 2 as 2,000 

allowances × 50 percent, or 1,000 allowances. 

EPA would apply this additional unitlevel constraint when calculating 

existing unit-level allocations under the 

final Transport Rule FIPs. This 

additional unit level constraint would 

be applied in steps 9 and 10 of the 

methodology described in the preamble 

to the final Transport Rule (76 FR 

48290). This additional constraint 

would be applied in step 9 to limit 

allocations to existing units covered by 

consent decrees. This constraint would 

be applied in step 10 to ensure that any 

allowances that cannot be allocated to 

existing units (because all existing units 

are subject to either the constraint on 

maximum historical emissions or this 

additional constraint) would be directed 

to the state’s new unit set aside. For 

example, EPA has determined that, if 

this additional constraint is finalized as 

proposed, all the units in the state of 

Tennessee would be constrained by 

either historical emissions or a unitlevel cap for the Transport Rule SO2

Group 1 program in calendar years 

2013, 2018, 2019, and each year 

thereafter. As described above, the new 

unit set aside for the state of Tennessee 

would increase in 2013, 2018, 2019, and 

each year thereafter, by 8,460, 3,173 and 

5,225 tons respectively. 

EPA is not seeking comment on any 

aspects of the allocation methodology in 

the final Transport Rule (76 FR 48290). 

EPA is only seeking comment on the 

addition of the constraint described 

above to steps 9 and 10 of that 

methodology. See ‘‘Assessment of 

Impact of Consent Decree Annual 

Tonnage Limits on Transport Rule 

Allocations TSD’’ in the docket for this 

rulemaking for further information on 

the proposed addition of the new 

constraint for purposes of determining 

unit-level allocations. 

C. Amend the Assurance Penalty 

Provisions To Make Them Effective 

Starting in 2014 

EPA is also proposing in this action 

to amend the effective date of the 

Transport Rule assurance provisions to 

make them effective beginning on 

January 1, 2014. During outreach 

discussions with various stakeholders, 

the application of assurance penalties at 

the outset of the program has been 

raised as a major concern for 

compliance and market development in 

the early years of the program. Several 

stakeholders have expressed concern 

that Transport Rule allowance market 

development may be delayed by 

uncertainty over how each state will 

transition from 2010 and 2011 emission 

levels to meet the projected Transport 

Rule assurance levels in 2012 and 2013. 

Under the assurance provisions, a 

state’s emissions for any control period 

in a given year must not exceed the state 

assurance level, i.e., the state budget 

plus the state’s variability limit. In order 

to implement this requirement, EPA 

first determines whether, for the control 

period, any state’s total emissions 

exceeded the state’s assurance level. If 

a state had emissions exceeding the 

state assurance level, then EPA applies 

additional criteria to determine which 

owners and operators of units in the 

state will be subject to the assurance 

penalty, which is a requirement to 

surrender additional allowances. In 

applying the additional criteria, EPA 

identifies which groups of units with a 

common designated representative (DR) 

in the state had emissions exceeding the 

respective common DR’s share of the 

state assurance level, and calculates 

what percentage each such group’s 

emissions above the common DR’s share 

comprise of the state’s emissions above 

the state assurance level. The assurance 

penalty applied to the owners and 

operators of each of those groups of 

units is the surrender of an amount of 

allowances equal to the state’s 

emissions above the state assurance 

level multiplied by the group’s 

percentage and multiplied by two (in 

order to reflect the penalty of two 

allowances for each ton of the state’s 

excess emissions). EPA implements the 

assurance penalty provisions through a 

series of notices of data availability that 

make available the necessary 

calculations and provide an opportunity 

for public objections to the calculations. 

The requirements that owners and 

operators comply with the assurance 

provisions, including where appropriate 

the assurance penalty, and the 

procedures followed by the 

Administrator are set forth in 40 CFR 

97.406(c)(2) and 97.425 (for the TR NOX

annual program), 97.506(c)(2) and 

97.525 (for the TR NOX ozone season 

program), 97.606(c)(2) and 97.625 (for 

the TR SO2 Group 1 program), and 

97.706(c)(2) and 97.725 (for the TR SO2

Group 2 program). 

EPA proposes to determine that 

amending the assurance provisions to 

take effect starting in 2014 is 

appropriate. EPA believes that a limited 

postponement of the effectiveness of 

these provisions is justified in order to 

smooth the transition from the existing 

CAIR programs to the new Transport 

Rule programs. 

In line with the Court’s remand of 

CAIR, EPA designed the Transport Rule 

to achieve necessary emission 

reductions by relevant NAAQS 

attainment deadlines and to ensure that 

necessary reductions will be achieved 

within each covered state. As explained 

in the final Transport Rule, EPA 

determined that it was appropriate for 

the Transport Rule programs to address 

emissions in 2012 and beyond in order 

to ensure that the deadlines in the rule 

were aligned, as legally required, with 

the downwind nonattainment deadlines 

(76 FR 48277–48279). CAIR remains in 

effect to address emissions through the 

end of the 2011 control periods, and the 

Transport Rule programs address 

emissions in 2012 and beyond. 

EPA took several steps in the final 

Transport Rule to ease the transition 

from the CAIR programs to the 

Transport Rule trading programs. 

The Transport Rule maintains 

programmatic elements that were 

successfully implemented and 

recognizable to sources from 

compliance experiences under CAIR 

while also addressing that rule’s legal 

shortcomings identified by the Court. 

Under both CAIR and the Transport 

Rule, individual units have the 

flexibility to supplement their own 

emission reductions with the 

acquisition from the marketplace of any 

additional allowances needed to cover 

emissions under the Transport Rule 

programs. Robust markets (e.g., markets 

with a high level of liquidity and 

accessibility of price information) for 

the CAIR annual NOX, CAIR ozoneseason NOX, and Acid Rain (SO2) 

program allowances have been in 

existence for many years. Sources 

covered by CAIR have relied on the 

availability of these robust markets 

when developing compliance plans. The 

Transport Rule (TR) creates new TR SO2

Group 1, TR SO2 Group 2, TR NOX, and 

TR ozone-season NOX allowances. 

Markets for these allowances are 

developing now, and EPA is beginning 

to record the allowances in allowance 

accounts and introduce the allowances 

into the marketplace over a year before 

the Transport Rule programs’ first 

compliance deadlines (December 1, 

2012, for the 2012 ozone-season NOX

program, and March 1, 2013, for the 

2012 annual NOX and SO2 programs). 

However, with the allocation revisions 

proposed in this rulemaking and the 

potential for additional revisions based 

on additional information that might be 

submitted in response to this 

rulemaking, some allowances would be 

recorded and introduced into the 

marketplace at later dates. 


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Based on observed compliance 

planning behavior among sources 

anticipating the 2012 control periods, 

and in light of the proposed revisions in 

this rulemaking and the potential for 

additional revisions based on additional 

information, EPA believes that 

amending the effective date of the 

assurance provisions to apply in 2014 

would ease the transition from CAIR to 

Transport Rule compliance for parties 

across the board by promoting the 

liquidity of, and accessibility of price 

information in, new Transport Rule 

allowance markets and instilling 

confidence that utilities can flexibly 

comply through a variety of unit-level 

operational strategies that are not 

limited by initial Transport Rule unitlevel allowance allocations. 

EPA believes that this change would 

accelerate the development of robust 

Transport Rule allowance markets and 

facilitate a smooth transition to the 

Transport Rule programs. If, in response 

to concerns about when robust markets 

will develop, utilities were to artificially 

constrain 2012 operational plans to not 

exceed initially allocated allowances, 

the volume of early trading activity 

might be unnecessarily limited. Early 

trading activity is important for 

demonstrating market liquidity and 

assisting in price discovery to inform 

compliance planning by affected 

sources. Actions by utilities to limit 

early trading activity, therefore, could 

have negative impacts not only on those 

utilities, but on all participants in the 

Transport Rule trading programs. EPA 

believes that amending the effectiveness 

of the assurance provisions in 2012 and 

2013 would encourage greater 

confidence among utilities for engaging 

immediately in cost-effective 

compliance planning that takes into 

account the flexibility of a robust market 

for acquiring allowances to cover 

emissions to the extent use of 

allowances is the most economic 

approach for compliance under the 

Transport Rule programs. 

Amending the assurance provisions 

would not affect, in any way, the 

requirements of the rule in 2014 and 

beyond. EPA is proposing only a short 

postponement of the assurance penalty 

provisions to ensure a smooth transition 

from CAIR to the Transport Rule 

programs. EPA believes that, 

notwithstanding postponement of the 

assurance penalty provisions, the states 

covered by the Transport Rule programs 

will still achieve the emission 

reductions in 2012 and 2013 necessary 

to eliminate each state’s significant 

contribution to nonattainment and 

interference with maintenance 

identified in the final Transport Rule 

(with the revisions included in this 

proposal). The highly detailed statespecific bases on which individual state 

budgets were determined using the 

approach and methodologies developed 

in the final Transport Rule, and 

included in the record for the Transport 

Rule, together with the derivation of the 

variability limits from historic data 

reflecting state-level year-to-year 

variation in power sector emissions, 

support EPA’s belief. EPA noted in the 

Transport Rule proposal that knowledge 

about installed air pollution control 

equipment ‘‘* * * provides greater 

certainty of where [near-term] 

reductions will occur and how these 

reductions should impact air quality in 

downwind areas. * * * Consequently, 

EPA believes that there is a high level 

of certainty that emissions reductions 

projected for 2012–2013 with interstate 

trading would be achieved within the 

states where they are projected to occur, 

making imposition of the assurance 

provisions during 2012–2013 

unnecessary’’ (75 FR 45314–45315). 

In the final Transport Rule, EPA did 

not disavow the proposal’s rationale for 

starting the assurance provisions in 

2014; however, the Agency chose to 

make the assurance provisions effective 

starting in 2012 with the intent to err on 

the side of providing ‘‘even further 

assurance’’ of securing the targeted 

emission reductions in upwind states 

(76 FR 48296). EPA, therefore, has never 

concluded that starting the assurance 

provisions in 2014 would fail to meet 

the 110(a)(2)(D) obligation to eliminate 

significant contribution or interference 

with maintenance in 2012 and 2013. 

Moreover, this proposal’s revisions to 

pollution control technology 

assumptions involve only 17 units of 

the approximately 3,600 units whose 

known controls inform the Transport 

Rule budgets. EPA continues to believe 

that, because the immediate-term 

Transport Rule state budgets for 2012 

and 2013 (in contrast with the budgets 

for 2014 and thereafter) are uniquely 

based on the ability of the known 

existing fleet of EGUs and known 

existing or soon-to-be-installed 

pollution control equipment to deliver 

emission reductions in specific upwind 

states, there is a high level of certainty 

that the state assurance levels will not 

be exceeded in 2012 and 2013. EPA 

believes that this near-term certainty 

allows the Agency to postpone the 

effectiveness of the Transport Rule’s 

assurance penalty provisions until 2014 

without sacrificing the Transport Rule’s 

ability to ensure necessary near-term 

emission reductions in each upwind 

state, supported by the calculation of 

each upwind state’s emission reduction 

potential (informing the determination 

of state budgets) under the rule. 

With the proposed, temporary 

postponement of the assurance 

provisions, EPA believes that, in the 

near term (as well as in the long term), 

Transport Rule allowance markets 

would provide compliance flexibility at 

the unit level and incentivize costeffective, unit-level emission 

reductions. In the aggregate, these 

flexibilities and reductions at the unit 

level would result in achievement in 

each state of the state-level cost-effective 

emission reductions projected in the 

final Transport Rule (with the revisions 

included in this proposal). In other 

words, EPA is only proposing to 

postpone temporarily the assurance 

penalty provisions to address the ability 

of owners and operators of individual 

units to make the cost-effective emission 

reductions in 2012 and 2013 on which 

EPA’s state-level emission projections 

relied in determining each state’s 

amount of significant contribution and 

interference with maintenance under 

the final Transport Rule. Consequently, 

EPA believes that this proposal to 

postpone temporarily the assurance 

provisions will not yield substantially 

different state-level emission outcomes 

under the Transport Rule programs in 

2012 or 2013 than the state-level 

emissions reflected in the state-specific 

budgets and assurance levels in the 

respective Transport Rule program. 

EPA believes that a two year 

postponement of the effective date of 

the assurance penalty provisions is 

sufficient to guarantee robust market 

development, is consistent with the DC 

Circuit’s decision leaving CAIR in place 

during the transition to a new rule, and 

will not interfere with the air quality 

objectives of the program. EPA does not, 

at this time, believe a longer 

postponement would be justified. EPA 

requests comment on all aspects of this 

proposal including the length of the 

postponement. 

Since under this proposal, the 

assurance provisions would continue to 

be effective for 2014 and thereafter, EPA 

maintains that the Transport Rule, 

revised consistent with this proposal, 

would continue to address and meet the 

Court’s concerns in North Carolina. 

Any revisions to state budgets from 

this proposal that are finalized would 

also include corresponding revisions to 

the relevant assurance levels that would 

apply in 2014 with this proposed 

postponement. 

D. Correct Typographical Errors 

EPA is proposing to correct 

typographical errors in certain sections 


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of rule text in parts 52 and 97 in the 

final Transport Rule. Specifically, EPA 

proposes to change an erroneous 

reference in 40 CFR 52.39(i)(1)(ii) to 

‘‘TR SO2 Group 1 allowances’’ to refer 

instead to ‘‘TR SO2 Group 2 allowances’’ 

and to redesignate sections 52.745 and 

52.746 in 40 CFR part 52, subpart O as 

sections 52.731 and 52.732 and 

redesignate section 52.2241 in 40 CFR 

part 52, subpart VV as section 52.2441. 

EPA also proposes to remove some 

redundant words in 40 CFR 

97.406(e)(2), 97.606(e)(2), and 

97.706(E)(2). EPA requests comment 

concerning only the specific corrections 

and not concerning any other aspect of 

the provisions in which these 

corrections would be made. 

IV. Recordation of Transport Rule 

Allowances 

Impacts on Allocations to Existing Units 

EPA recognizes that successful 

implementation of the Transport Rule 

programs in 2012 depends in part on the 

development of robust allowance 

markets, in which covered sources can 

locate and purchase any additional 

allowances necessary to comply with 

the rule. As such, EPA intends to 

allocate as many 2012 Transport Rule 

allowances as possible as early as 

possible to assist implementation and 

compliance planning. While none of the 

actions presented in this proposal 

would reduce any state’s total number 

of allowances issued under that state’s 

budgets, some of the actions presented 

in this proposal would slightly alter unit 

level allocations. For example, as 

described above, allocations to certain 

units covered by consent decrees would 

be limited. EPA does not believe it 

would be prudent or reasonable to 

record in allowance accounts, before 

taking final action on this proposal, 

allowance allocations in excess of the 

amount any given unit would receive if 

this proposal is finalized as proposed. 

EPA will record by November 7, 2011 

for each unit, the lesser of the amount 

that unit would receive under the 

allocation scheme finalized in the 

Transport Rule or the amount the unit 

would receive if this proposal is 

finalized as proposed. This approach 

will allow EPA to allocate over 99.7 

percent of all existing unit allowances 

under the state budgets established in 

the final Transport Rule by that rule’s 

November 7 deadline (76 FR 48398, 

48424, 48450, and 48475, August 8, 

2011). During this timeframe, the only 

units that will receive substantially 

fewer allowances under this approach 

than under the allocations as finalized 

in the Transport Rule are units already 

subject to legally binding consent 

decrees that limit their emissions; 

therefore, EPA does not believe this 

approach will have any negative impact 

on compliance planning at sources in 

anticipation of the implementation of 

the Transport Rule programs. EPA is 

proposing to allocate the remaining 0.3 

percent of the allowances no later than 

7 days after finalization of this action is 

legally effective. In addition, if EPA 

finalizes the proposed actions that yield 

increases to state budgets, the Agency 

will act swiftly to record these 

additional allowances and thereby put 

them into the marketplace as quickly as 

possible following this rule’s 

finalization, so that the allowances 

would be available significantly in 

advance of the compliance deadlines for 

the 2012 control periods (i.e., the 

allowance transfer deadlines of 

December 1, 2012 (for the NOX ozone 

season program) and March 1, 2013 (for 

the NOX and SO2 annual programs)). 

See the ‘‘Transport Rule Allowance 

Recordation Schedule TSD’’ in the 

docket for this rulemaking for a 

demonstration of how many allowances 

EPA will record by November 7, 2011 in 

each state. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action.’’ 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. This 

action makes relatively minor revisions 

to the emission budgets and allowance 

allocations or allowance allocations 

only in certain states in the final 

Transport Rule and corrects minor 

technical errors which are ministerial. 

However, the Office of Management and 

Budget (OMB) has previously approved 

the information collection requirements 

contained in the final Transport Rule 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2060–0667. The OMB control numbers 

for EPA’s regulations in 40 CFR are 

listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s action on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

The small entities directly regulated by 

this action are electric power generators 

whose ultimate parent entity has a total 

electric output of 4 million megawatthours (MWh) or less in the previous 

fiscal year. We have determined that the 

changes considered in this proposed 

rulemaking pose no additional burden 

for small entities. The proposed revision 

to the new unit set-asides in Arkansas 

and Texas would yield an extremely 

small change in unit-level allowance 

allocations to existing units, including 

small entities, such that it would not 

affect the analysis conducted on small 

entity impacts under the finalized 

Transport Rule. In all other states, the 

revisions proposed in this rulemaking 

would yield additional allowance 

allocations to all units, including small 

entities, without increasing program 

stringency, such that it is not possible 

for the impact to small entities to be any 

larger than that already considered and 

reviewed in the finalized Transport 

Rule. 

D. Unfunded Mandates Reform Act 

This action does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and Tribal governments, in the 

aggregate, or the private sector in any 


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Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 63873 

one year. This action is increasing the 

budgets and increasing the total number 

of allowances or maintaining the same 

budget but revising unit-level 

allocations in several other states in the 

Transport Rule. Thus, this rule is not 

subject to the requirements of sections 

202 or 205 of UMRA. 

In developing the final Transport 

Rule, EPA consulted with small 

governments pursuant to a plan 

established under section 203 of UMRA 

to address impacts of regulatory 

requirements in the rule that might 

significantly or uniquely affect small 

governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action 

makes relatively minor revisions to the 

emissions budgets and allowance 

allocations or allowance allocations 

only in certain states in the final 

Transport Rule. Thus, Executive Order 

13132 does not apply to this rule. EPA 

did provide information to state and 

local officials during development of 

both the proposed and final Transport 

Rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This action makes relatively 

minor revisions to the emissions 

budgets and allowance allocations in 

several states in the final Transport Rule 

and helps ease the transition from CAIR. 

Indian country new unit set-asides will 

increase slightly or remain unchanged 

in the states affected by this action. 

Thus, Executive Order 13175 does not 

apply to this action. EPA consulted with 

Tribal officials during the process of 

promulgating the final Transport Rule to 

permit them to have meaningful and 

timely input into its development. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency does not believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. 

Analyses by EPA that show how the 

emission reductions from the strategies 

in the final Transport Rule will further 

improve air quality and children’s 

health can be found in the final 

Transport Rule RIA. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

EPA believes that there is no meaningful 

impact to the energy supply beyond that 

which is reported for the Transport Rule 

program in the final Transport Rule. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

As described in section XII.I of the 

preamble to the final Transport Rule, 

the Transport Rule program requires all 

sources to meet the applicable 

monitoring requirements of 40 CFR part 

75. Part 75 already incorporates a 

number of voluntary consensus 

standards. This action, however, does 

not involve technical standards. 

Therefore, EPA did not consider the use 

of any voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this action 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. EPA believes that the vast 

majority of communities and 

individuals in areas covered by the 

Transport Rule program inclusive of this 

action, including numerous lowincome, minority, and Tribal 

individuals and communities in both 

rural areas and inner cities in the 

eastern and central U.S., will see 

significant improvements in air quality 

and resulting improvements in health. 

EPA’s assessment of the effects of the 

final Transport Rule program on these 

communities is detailed in section XII.J 

of the preamble to the final Transport 

Rule. 

List of Subjects 

40 CFR Part 52 

Administrative practice and 

procedure, Air pollution control, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

oxides, Ozone, Particulate matter, 

Regional haze, Reporting and 

recordkeeping requirements, Sulfur 

dioxide. 

40 CFR Part 97 

Administrative practice and 

procedure, Air pollution control, 

Electric utilities, Nitrogen oxides, 

Reporting and recordkeeping 

requirements, Sulfur dioxide. 

Dated: October 6, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set forth in the 

preamble, parts 52 and 97 of chapter I 

of title 40 of the Code of Federal 

Regulations are proposed to be amended 

as follows: 

PART 52—[AMENDED] 

1. The authority citation for Part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

Subpart A—General Provisions 

§ 52.39 [Amended] 

2. In § 52.39 amend paragraph (i)(1)(ii) 

by removing the words ‘‘Group 1’’ and 

adding, in their place, the words ‘‘Group 

2’’. 


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Subpart O—Illinois 

§ 52.745 [Redesignated as § 52.731] 

3. Section 52.745, as published at 76 

FR 48363, August 8, 2011, is 

redesignated as § 52.731. 

§ 52.746 [Redesignated as § 52.732] 

4. Section 52.746 is redesignated as 

§ 52.732. 

Subpart VV—Virginia 

§ 52.2241 [Redesignated as § 52.2441] 

5. Section 52.2241, as published at 76 

FR 48376, August 8, 2011, is 

redesignated as § 52.2441. 

PART 97—[AMENDED] 

6. The authority citation for Part 97 

continues to read as follows: 

Authority: 42 U.S.C. 7401, 7403, 7410, 

7426, 7601, and 7651, et seq. 

7. Section 97.406 is amended: 

a. In paragraph (c)(3) by removing the 

words ‘‘paragraphs (c)(1) and (2)’’, 

adding in their place the words 

‘‘paragraph (c)(1)’’ and designating the 

first sentence as paragraph (c)(3)(i); 

b. By adding a new paragraph 

(c)(3)(ii); and 

c. In paragraph (e)(2) by removing the 

words ‘‘or or’’ and adding, in their 

place, the word ‘‘or’’. 

The addition reads as follows: 

§ 97.406 Standard requirements. 

* * * * * 

(c) * * * 

(3) * * * 

(ii) A TR NOX Annual unit shall be 

subject to the requirements under 

paragraph (c)(2) of this section for the 

control period starting on the later of 

January 1, 2014 or the deadline for 

meeting the unit’s monitor certification 

requirements under § 97.430(b) and for 

each control period thereafter. 

* * * * * 

8. Section 97.410 is revised to read as 

follows: 

§ 97.410 State NOX Annual trading 

budgets, new unit set-asides, Indian 

country new unit set-aside, and variability 

limits. 

(a) The State NOX Annual trading 

budgets, new unit set-asides, and Indian 

country new unit set-asides for 

allocations of TR NOX Annual 

allowances for the control periods in 

2012 and thereafter are as follows: 

State 

NOX Annual trading 

budget (tons)* for 2012 

and 2013 

New unit set-aside 

(tons) for 2012 and 2013 

Indian country new unit 

set-aside (tons) for 2012 

and 2013 

Alabama ....................................................................................... 72,691 1,454 ........................................

Georgia ........................................................................................ 62,010 1,240 ........................................

Illinois ........................................................................................... 47,872 3,830 ........................................

Indiana ......................................................................................... 109,726 3,292 ........................................

Iowa ............................................................................................. 38,335 729 38 

Kansas ......................................................................................... 30,714 583 31 

Kentucky ...................................................................................... 85,086 3,403 ........................................

Maryland ...................................................................................... 16,633 333 ........................................

Michigan ....................................................................................... 65,421 1,243 65 

Minnesota .................................................................................... 29,572 561 30 

Missouri ........................................................................................ 52,374 1,571 ........................................

Nebraska ...................................................................................... 30,039 1772 30 

New Jersey .................................................................................. 7,686 154 ........................................

New York ..................................................................................... 21,028 400 21 

North Carolina .............................................................................. 50,587 2,984 51 

Ohio ............................................................................................. 92,703 1,854 ........................................

Pennsylvania ................................................................................ 119,986 2,400 ........................................

South Carolina ............................................................................. 32,498 617 33 

Tennessee ................................................................................... 35,703 714 ........................................

Texas ........................................................................................... 134,970 5,264 135 

Virginia ......................................................................................... 33,242 1,662 ........................................

West Virginia ................................................................................ 59,472 2,974 ........................................

Wisconsin ..................................................................................... 34,101 2,012 34 

State 

NOX Annual trading 

budget (tons)* for 2014 

and thereafter 

New unit set-aside 

(tons) for 2014 and 

thereafter 

Indian country new unit 

set-aside (tons) for 2014 

and thereafter 

Alabama ....................................................................................... 71,962 1,439 ........................................

Georgia ........................................................................................ 40,540 811 ........................................

Illinois ........................................................................................... 47,872 3,830 ........................................

Indiana ......................................................................................... 108,424 3,253 ........................................

Iowa ............................................................................................. 37,498 712 38 

Kansas ......................................................................................... 25,560 485 26 

Kentucky ...................................................................................... 77,238 3,090 ........................................

Maryland ...................................................................................... 16,574 331 ........................................

Michigan ....................................................................................... 63,040 1,198 63 

Minnesota .................................................................................... 29,572 561 30 

Missouri ........................................................................................ 48,717 1,462 ........................................

Nebraska ...................................................................................... 30,039 1,772 30 

New Jersey .................................................................................. 7,378 148 ........................................

New York ..................................................................................... 21,028 400 21 

North Carolina .............................................................................. 41,553 2,451 42 

Ohio ............................................................................................. 87,493 1,750 ........................................

Pennsylvania ................................................................................ 119,194 2,384 ........................................

South Carolina ............................................................................. 32,498 617 33 

Tennessee ................................................................................... 19,337 387 ........................................

Texas ........................................................................................... 134,970 5,264 135 


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State 

NOX Annual trading 

budget (tons)* for 2014 

and thereafter 

New unit set-aside 

(tons) for 2014 and 

thereafter 

Indian country new unit 

set-aside (tons) for 2014 

and thereafter 

Virginia ......................................................................................... 33,242 1,662 ........................................

West Virginia ................................................................................ 54,582 2,729 ........................................

Wisconsin ..................................................................................... 32,871 1,939 33 

* Each trading budget includes the new unit set-aside and, where applicable, the Indian country new unit set-aside and does not include the 

variability limit. 

(b) The States’ variability limits for 

the State NOX Annual trading budgets 

for the control periods in 2014 and 

thereafter are as follows: 

State 

Variability limits 

for 2014 and 

thereafter 

Alabama ............................ 12,953 

Georgia ............................. 7,297 

Illinois ................................ 8,617 

Indiana .............................. 19,516 

Iowa .................................. 6,750 

Kansas .............................. 4,601 

Kentucky ........................... 13,903 

Maryland ........................... 2,983 

Michigan ........................... 11,347 

Minnesota ......................... 5,323 

Missouri ............................ 8,769 

Nebraska .......................... 5,407 

New Jersey ....................... 1,328 

New York .......................... 3,785 

North Carolina .................. 7,480 

Ohio .................................. 15,749 

Pennsylvania .................... 21,455 

South Carolina .................. 5,850 

State 

Variability limits 

for 2014 and 

thereafter 

Tennessee ........................ 3,481 

Texas ................................ 24,295 

Virginia .............................. 5,984 

West Virginia .................... 9,825 

Wisconsin ......................... 5,917 

§ 97.425 [Amended] 

9. Section 97.425 is amended in 

paragraph (b)(1) by removing the figure 

‘‘2013’’ and adding in its place the 

figure ‘‘2015’’. 

10. Section 97.506 is amended: 

a. In paragraph (c)(3) by removing the 

words ‘‘paragraphs (c)(1) and (2)’’, 

adding in their place the words 

‘‘paragraph (c)(1)’’ and designating the 

first sentence as paragraph (c)(3)(i); and 

b. Adding a new paragraph (c)(3)(ii). 

The addition reads as follows: 

§ 97.506 Standard requirements. 

* * * * * 

(c) * * * 

(3) * * * 

(ii) A TR NOX Ozone Season unit 

shall be subject to the requirements 

under paragraph (c)(2) of this section for 

the control period starting on the later 

of May 1, 2014 or the deadline for 

meeting the unit’s monitor certification 

requirements under § 97.530(b) and for 

each control period thereafter. 

* * * * * 

11. Section 97.510 is revised to read 

as follows: 

§ 97.510 State NOX Ozone Season trading 

budgets, new unit set-asides, Indian 

country new unit set-aside, and variability 

limits. 

(a) The State NOX Ozone Season 

trading budgets, new unit set-asides, 

and Indian country new unit set-asides 

for allocations of TR NOX Ozone Season 

allowances for the control periods in 

2012 and thereafter are as follows: 

State 

NOX Ozone Season 

trading budget (tons) * 

for 2012 and 2013 

New unit set-aside 

(tons) for 2012 and 2013 

Indian country new unit 

set-aside (tons) for 2012 

and 2013 

Alabama ....................................................................................... 31,746 635 ........................................

Arkansas ...................................................................................... 15,037 752 ........................................

Florida .......................................................................................... 28,644 544 29 

Georgia ........................................................................................ 27,944 559 ........................................

Illinois ........................................................................................... 21,208 1,697 ........................................

Indiana ......................................................................................... 46,876 1,406 ........................................

Kentucky ...................................................................................... 36,167 1,447 ........................................

Louisiana ...................................................................................... 17,663 512 18 

Maryland ...................................................................................... 7,179 144 ........................................

Mississippi .................................................................................... 12,296 234 12 

New Jersey .................................................................................. 3,974 79 ........................................

New York ..................................................................................... 10,242 195 10 

North Carolina .............................................................................. 22,168 1,308 22 

Ohio ............................................................................................. 40,063 801 ........................................

Pennsylvania ................................................................................ 52,201 1,044 ........................................

South Carolina ............................................................................. 13,909 264 14 

Tennessee ................................................................................... 14,908 298 ........................................

Texas ........................................................................................... 64,418 2,513 64 

Virginia ......................................................................................... 14,452 723 ........................................

West Virginia ................................................................................ 25,283 1,264 ........................................

State 

NOX Ozone Season 

trading budget (tons) * 

for 2014 and thereafter 

New unit set-aside 

(tons) for 2014 and 

thereafter 

Indian country new unit 

set-aside (tons) for 2014 

and thereafter 

Alabama ....................................................................................... 31,499 630 ........................................

Arkansas ...................................................................................... 15,037 752 ........................................

Florida .......................................................................................... 27,825 529 28 

Georgia ........................................................................................ 18,279 366 ........................................

Illinois ........................................................................................... 21,208 1,697 ........................................

Indiana ......................................................................................... 46,175 1,385 ........................................

Kentucky ...................................................................................... 32,674 1,307 ........................................


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State 

NOX Ozone Season 

trading budget (tons) * 

for 2014 and thereafter 

New unit set-aside 

(tons) for 2014 and 

thereafter 

Indian country new unit 

set-aside (tons) for 2014 

and thereafter 

Louisiana ...................................................................................... 17,663 512 18 

Maryland ...................................................................................... 7,179 144 ........................................

Mississippi .................................................................................... 12,296 234 12 

New Jersey .................................................................................. 3,577 72 ........................................

New York ..................................................................................... 10,242 195 10 

North Carolina .............................................................................. 18,455 1,089 18 

Ohio ............................................................................................. 37,792 756 ........................................

Pennsylvania ................................................................................ 51,912 1,038 ........................................

South Carolina ............................................................................. 13,909 264 14 

Tennessee ................................................................................... 8,016 160 ........................................

Texas ........................................................................................... 64,418 2513 64 

Virginia ......................................................................................... 14,452 723 ........................................

West Virginia ................................................................................ 23,291 1,165 ........................................

* Each trading budget includes the new unit set-aside and, where applicable, the Indian country new unit set-aside and does not include the 

variability limit. 

(b) The States’ variability limits for 

the State NOX Ozone Season trading 

budgets for the control periods in 2014 

and thereafter are as follows: 

State 

Variability limits 

for 2014 and 

thereafter 

Alabama ............................ 6,615 

Arkansas ........................... 3,158 

Florida ............................... 5,843 

Georgia ............................. 3,839 

Illinois ................................ 4,454 

Indiana .............................. 9,697 

Kentucky ........................... 6,862 

Louisiana .......................... 3,709 

Maryland ........................... 1,508 

Mississippi ........................ 2,582 

New Jersey ....................... 751 

New York .......................... 2,151 

North Carolina .................. 3,876 

Ohio .................................. 7,936 

Pennsylvania .................... 10,902 

South Carolina .................. 2,921 

Tennessee ........................ 1,683 

Texas ................................ 13,528 

Virginia .............................. 3,035 

State 

Variability limits 

for 2014 and 

thereafter 

West Virginia .................... 4,891 

§ 97.525 [Amended] 

12. Section 97.525 is amended in 

paragraph (b)(1) by removing the figure 

‘‘2013’’ and adding in its place the 

figure ‘‘2015’’. 

13. Section 97.606 is amended: 

a. In paragraph (c)(3) by removing the 

words ‘‘paragraphs (c)(1) and (2)’’ and 

adding in their place the words 

‘‘paragraph (c)(1)’’ and designating the 

first sentence as paragraph (c)(3)(i); 

b. By adding a new paragraph 

(c)(3)(ii); and 

c. In paragraph (e)(2) by removing the 

words ‘‘or or’’ and adding, in their 

place, the word ‘‘or’’. 

The addition reads as follows: 

§ 97.606 Standard requirements. 

* * * * * 

(c) * * * 

(3) * * * 

(ii) A TR SO2 Group 1 unit shall be 

subject to the requirements under 

paragraph (c)(2) of this section for the 

control period starting on the later of 

January 1, 2014 or the deadline for 

meeting the unit’s monitor certification 

requirements under § 97.630(b) and for 

each control period thereafter. 

* * * * * 

14. Section 97.610 is revised to read 

as follows: 

§ 97.610 State SO2 Group 1 trading 

budgets, new unit set-asides, Indian 

country new unit set-aside, and variability 

limits. 

(a) The State SO2 Group 1 trading 

budgets, new unit set-asides, and Indian 

country new unit set-asides for 

allocations of TR SO2 Group 1 

allowances for the control periods in 

2012 and thereafter are as follows: 

State 

SO2 Group 1 trading 

budget (tons) * for 2012 

and 2013 

New unit set-aside 

(tons) for 2012 and 2013 

Indian country new unit 

set-aside (tons) for 2012 

and 2013 

Illinois ........................................................................................... 234,889 11,744 ........................................

Indiana ......................................................................................... 285,424 8,563 ........................................

Iowa ............................................................................................. 107,085 2,035 107 

Kentucky ...................................................................................... 232,662 13,960 ........................................

Maryland ...................................................................................... 30,120 602 ........................................

Michigan ....................................................................................... 229,303 4,357 229 

Missouri ........................................................................................ 207,466 4,149 ........................................

New Jersey .................................................................................. 7,670 153 ........................................

New York ..................................................................................... 30,852 586 31 

North Carolina .............................................................................. 136,881 10,813 137 

Ohio ............................................................................................. 310,230 6,205 ........................................

Pennsylvania ................................................................................ 278,651 5,573 ........................................

Tennessee ................................................................................... 148,150 2,963 ........................................

Virginia ......................................................................................... 70,820 2,833 ........................................

West Virginia ................................................................................ 146,174 10,232 ........................................

Wisconsin ..................................................................................... 79,480 3,099 80 


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State 

SO2 Group 1 trading 

budget (tons)* for 2014 

and thereafter 

New unit set-aside 

(tons) for 2014 and 

thereafter 

Indian country new unit 

set-aside (tons) for 2014 

and thereafter 

Illinois ........................................................................................... 124,123 6,206 ........................................

Indiana ......................................................................................... 161,111 4,833 ........................................

Iowa ............................................................................................. 75,184 1,429 75 

Kentucky ...................................................................................... 106,284 6,377 ........................................

Maryland ...................................................................................... 28,203 564 ........................................

Michigan ....................................................................................... 143,995 2,736 144 

Missouri ........................................................................................ 165,941 3,319 ........................................

New Jersey .................................................................................. 5,574 111 ........................................

New York ..................................................................................... 22,112 420 22 

North Carolina .............................................................................. 57,620 4,552 58 

Ohio ............................................................................................. 137,077 2,742 ........................................

Pennsylvania ................................................................................ 112,021 2,240 ........................................

Tennessee ................................................................................... 58,833 1,177 ........................................

Virginia ......................................................................................... 35,057 1,402 ........................................

West Virginia ................................................................................ 75,668 5,297 ........................................

Wisconsin ..................................................................................... 47,883 1867 48 

* Each trading budget includes the new unit set-aside and, where applicable, the Indian country new unit set-aside and does not include the 

variability limit. 

(b) The States’ variability limits for 

the State SO2 Group 1 trading budgets 

for the control periods in 2014 and 

thereafter are as follows: 

State 

Variability limits 

for 2014 and 

thereafter 

Illinois ................................ 22,342 

Indiana .............................. 29,000 

Iowa .................................. 13,533 

Kentucky ........................... 19,131 

Maryland ........................... 5,077 

Michigan ........................... 25,919 

Missouri ............................ 29,869 

New Jersey ....................... 1,003 

New York .......................... 3,980 

North Carolina .................. 10,372 

Ohio .................................. 24,674 

Pennsylvania .................... 20,164 

Tennessee ........................ 10,590 

Virginia .............................. 6,310 

West Virginia .................... 13,620 

Wisconsin ......................... 8,619 

§ 97.625 [Amended] 

15. Section 97.625 is amended in 

paragraph (b)(1) by removing the figure 

‘‘2013’’ and adding in its place the 

figure ‘‘2015’’. 

16. Section 97.706 is amended: 

a. In paragraph (c)(3) by removing the 

words ‘‘paragraphs (c)(1) and (2)’’ and 

adding in their place the words 

‘‘paragraph (c)(1)’’ and designating the 

first sentence as paragraph (c)(3)(i); 

b. By adding a new paragraph 

(c)(3)(ii); and 

c. In paragraph (e)(2) by removing the 

words ‘‘or or’’ and adding, in their 

place, the word ‘‘or’’. 

The addition reads as follows: 

§ 97.706 Standard requirements. 

* * * * * 

(c) * * * 

(3) * * * 

(ii) A TR SO2 Group 2 unit shall be 

subject to the requirements under 

paragraph (c)(2) of this section for the 

control period starting on the later of 

January 1, 2014 or the deadline for 

meeting the unit’s monitor certification 

requirements under § 97.730(b) and for 

each control period thereafter. 

* * * * * 

14. Section 97.710 is revised to read 

as follows: 

§ 97.710 State SO2 Group 2 trading 

budgets, new unit set-asides, Indian 

country new unit set-aside, and variability 

limits. 

(a) The State SO2 Group 2 trading 

budgets, new unit set-asides, and Indian 

country new unit set-asides for 

allocations of TR SO2 Group 2 

allowances for the control periods in 

2012 and thereafter are as follows: 

State 

SO2 Group 2 trading 

budget (tons) * for 2012 

and 2013 

New unit set-aside 

(tons) for 2012 and 2013 

Indian country new unit 

set-aside (tons) for 2012 

and 2013 

Alabama ....................................................................................... 216,033 4,321 ........................................

Georgia ........................................................................................ 158,527 3,171 ........................................

Kansas ......................................................................................... 41,528 789 42 

Minnesota .................................................................................... 41,981 798 42 

Nebraska ...................................................................................... 65,052 2,537 65 

South Carolina ............................................................................. 88,620 1,683 89 

Texas ........................................................................................... 314,021 15,387 314 

State 

SO2 Group 2 trading 

budget (tons) * for 2014 

and thereafter 

New unit set-aside 

(tons) for 2014 and 

thereafter 

Indian country new unit 

set-aside (tons) for 2014 

and thereafter 

Alabama ....................................................................................... 213,258 4,265 ........................................

Georgia ........................................................................................ 95,231 1,905 ........................................

Kansas ......................................................................................... 41,528 789 42 

Minnesota .................................................................................... 41,981 798 42 

Nebraska ...................................................................................... 65,052 2,537 65 

South Carolina ............................................................................. 88,620 1,683 89 


tkelley on DSK3SPTVN1PROD with PROPOSALS
63878 Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 

State 

SO2 Group 2 trading 

budget (tons) * for 2014 

and thereafter 

New unit set-aside 

(tons) for 2014 and 

thereafter 

Indian country new unit 

set-aside (tons) for 2014 

and thereafter 

Texas ........................................................................................... 314,021 15,387 314 

* Each trading budget includes the new unit set-aside and, where applicable, the Indian country new unit set-aside and does not include the 

variability limit. 

(b) The States’ variability limits for 

the State SO2 Group 2 trading budgets 

for the control periods in 2014 and 

thereafter are as follows: 

State 

Variability limits 

for 2014 and 

thereafter 

Alabama ............................ 38,386 

Georgia ............................. 17,142 

Kansas .............................. 7,475 

Minnesota ......................... 7,557 

Nebraska .......................... 11,709 

South Carolina .................. 15,952 

Texas ................................ 56,524 

15. Section 97.725 is amended by, in 

paragraph (b)(1), removing the word 

‘‘2013’’ and adding, in its place, the 

word ‘‘2015’’. 

[FR Doc. 2011–26521 Filed 10–13–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[EPA–HQ–OAR–2010–0750; FRL–9477–1] 

RIN 2060–AQ10 

New Source Performance Standards 

Review for Nitric Acid Plants 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing 

revisions to the new source performance 

standards (NSPS) for nitric acid plants. 

Nitric acid plants include one or more 

nitric acid production units. These 

proposed revisions include a change to 

the nitrogen oxides (NOX) emission 

limit, which applies to each nitric acid 

production unit commencing 

construction, modification, or 

reconstruction after October 14, 2011. 

These proposed revisions will also 

include additional testing and 

monitoring requirements. 

DATES: Comments must be received on 

or before November 28, 2011. Under the 

Paperwork Reduction Act, comments on 

the information collection provisions 

are best assured of having full effect if 

the Office of Management and Budget 

(OMB) receives a copy of your 

comments on or before November 14, 

2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0750, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Agency Web site: http:// 

www.epa.gov/oar/docket.html. Follow 

the instructions for submitting 

comments on the EPA Air and Radiation 

Docket Web site. 

• E-mail: a-and-r-Docket@epa.gov. 

Include EPA–HQ–OAR–2010–0750 in 

the subject line of the message. 

• Fax: Fax your comments to: (202) 

566–9744, Attention Docket ID No. 

EPA–HQ–OAR–2010–0750. 

• Mail: Send your comments to: EPA 

Docket Center (EPA/DC), Environmental 

Protection Agency, Mailcode: 2822T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460, Attention: 

Docket ID No. EPA–HQ–OAR–2010– 

0750. Please include a total of two 

copies. In addition, please mail a copy 

of your comments on the information 

collection provisions to the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget 

(OMB), Attn: Desk Officer for EPA, 725 

17th St., NW., Washington, DC 20503. 

• Hand Delivery or Courier: In person 

or by courier, deliver comments to EPA 

Docket Center, EPA West, Room 3334, 

1301 Constitution Ave., NW., 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket 

Center’s normal hours of operation, 

(8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays), and 

special arrangements should be made 

for deliveries of boxed information. 

Please include a total of two copies. 

Instructions: All submissions received 

must include the agency name and 

docket number or Regulatory 

Information Number (RIN) for this 

rulemaking. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means that the EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to the EPA without 

going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

will be made available on the Internet. 

If you submit an electronic comment, 

the EPA recommends that you include 

your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For detailed instructions on 

submitting comments and additional 

information on the rulemaking process, 

see the ‘‘General Information’’ heading 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available (e.g., CBI or other 

information whose disclosure is 

restricted by statute). Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy form. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the EPA Docket Center, Public Reading 

Room, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

questions about these proposed 

standards for nitric acid production 

units, contact Mr. Chuck French, Sector 


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