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[Federal Register: March 1, 2010 (Volume 75, Number 39)]
[Rules and Regulations]               
[Page 9103-9105]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr10-10]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2009-0964; FRL-9116-8]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Illinois; NOX Budget Trading Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a revision to the Illinois State 
Implementation Plan (SIP) that would terminate the provisions of the 
Nitrogen Oxides (NOX) Budget Trading Program that apply to 
electric generating units. EPA is no longer operating the 
NOX Budget Trading Program as a compliance option under the 
NOX SIP Call. These sources are now subject to provisions in 
a newer set of approved Illinois rules that address EPA's Clean Air 
Interstate Rule (CAIR). For these reasons, the sunset of the 
NOX Budget Trading Program for these sources merely 
deactivates duplicative rule language.

DATES: This direct final rule will be effective April 30, 2010, unless 
EPA receives adverse comments by March

[[Page 9104]]

31, 2010. If adverse comments are received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R05-OAR-2009-0964 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: damico.genevieve@epa.gov.
    3. Fax: (312) 385-5501.
    4. Mail: Genevieve Damico, Acting Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Genevieve Damico, Acting Chief, Criteria 
Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
Such deliveries are only accepted during the Regional Office normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. The Regional Office official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0964. 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 and any form of encryption and should be 
free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the 
Air and Radiation Division, U.S. Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, IL 60604. This facility 
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. We recommend that you telephone John Summerhays, 
Environmental Scientist, at (312) 886-6067, before visiting the Region 
5 office.

FOR FURTHER INFORMATION CONTACT: John Summerhays, (312) 886-6067, or by 
e-mail at summerhays.john@epa.gov.

SUPPLEMENTARY INFORMATION: 
    This supplementary information section is arranged as follows:

I. Review of State's Submittal
II. Final Action
III. Statutory and Executive Order Reviews

I. Review of State's Submittal

    On December 7, 2009, Illinois submitted a rule revision to EPA for 
the sunset of 35 Illinois Administrative Code (IAC) 217 Subpart W, 
which sets requirements for electric generating units (EGUs) in the 
NOX Budget Trading Program. These sources are now subject to 
requirements of rules adopted pursuant to CAIR (in 35 IAC 225) and 
approved by EPA on October 16, 2007, which supersede 35 IAC 217 Subpart 
W.
    Illinois' revision would add 35 IAC 217.751, the full text of which 
is:

    The provisions of this Subpart W shall not apply for any control 
period in 2009 or thereafter. Noncompliance with the provisions of 
this Subpart that occurred prior to 2009 is subject to the 
applicable provisions of this Subpart.

    The NOX Budget Trading Program was mandated under a rule 
commonly known as the NOX SIP Call, published on October 27, 
1998, at 63 FR 57356, with subsequent amendments. Subsequently, EPA 
promulgated a similar set of requirements in CAIR, published May 12, 
2005, at 70 FR 25162. Illinois adopted and submitted rules in 35 IAC 
225 that addressed CAIR which, among other provisions, required EGUs to 
participate in the CAIR NOX Ozone Season Trading Program. 
This latter program has largely superseded the NOX Budget 
Trading Program. Indeed, EPA no longer offers the NOX Budget 
Trading Program as an option to meet the requirements of the 
NOX SIP Call, and EPA encourages states to clarify their 
regulatory requirements by terminating provisions established with the 
NOX Budget Trading Program that have been superseded by 
provisions established pursuant to CAIR.\1\ EPA approved the pertinent 
Illinois rules of 35 IAC 225 on October 16, 2007, at 72 FR 58528. These 
rules fully supersede the requirements applicable to EGUs in 35 IAC 217 
Subpart W with respect to ozone seasons of 2009 and beyond, and so EPA 
finds that the sunset of the Subpart W requirements (except to the 
extent that any enforcement actions for noncompliance prior to 2009 
remain pending) is fully approvable.
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    \1\ EPA was sued by a number of parties on various aspects of 
CAIR, and on July 11, 2008, the U.S. Court of Appeals for the 
District of Columbia Circuit issued its decision to vacate and 
remand both CAIR and the associated CAIR FIPs in their entirety. 
North Carolina v. EPA, 531 F.3d 836 (D.C. Cir. Jul. 11, 2008). 
However, in response to EPA's petition for rehearing, the Court 
issued an order remanding CAIR to EPA without vacating either CAIR 
or the CAIR FIPs. North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 
Dec. 23, 2008). The Court thereby left CAIR in place in order to 
``temporarily preserve the environmental values covered by CAIR'' 
until EPA replaces it with a rule consistent with the Court's 
opinion. Id. at 1178. The Court directed EPA to ``remedy CAIR's 
flaws'' consistent with its July 11, 2008, opinion, but declined to 
impose a schedule on EPA for completing that action. Id.
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    Under the NOX Budget Trading Program, an excess 
emissions penalty assessed for the 2008/2009 control periods requires 
the deduction of allowances from a subsequent control period. 
Generally, no NOX Budget Trading Program allowances will be 
allocated for the 2009 control period and thereafter. Therefore, if any 
such excess emissions penalty is to be imposed, the Administrator will 
deduct CAIR NOX Ozone Season allowances allocated for a 
subsequent control period.

II. Final Action

    EPA is approving 35 IAC 217.751. This paragraph terminates the 
provisions of 35 IAC 217 Subpart W, which sets requirements for EGUs 
pursuant to the NOX SIP Call, since these requirements have 
been

[[Page 9105]]

superseded by requirements pursuant to CAIR. The sunset of these 
provisions takes effect with the 2009 ozone season, except that the 
provisions remain in effect for purposes of addressing noncompliance 
with Subpart W prior to 2009.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the state plan if relevant adverse 
written comments are filed. This rule will be effective April 30, 2010 
without further notice unless we receive relevant adverse written 
comments by March 31, 2010. If we receive such comments, we will 
withdraw this action before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on the proposed action. EPA will not institute a second comment 
period. Any parties interested in commenting on this action should do 
so at this time. If we do not receive any comments, this action will be 
effective April 30, 2010.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 30, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: February 10, 2010.
Walter W. Kovalick, Jr.,
Acting Regional Administrator, Region 5.


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For the reasons stated in the preamble, part 52, chapter I, of title 40 
of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

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1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart O--Illinois

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2. Section 52.740 is amended by adding paragraph (c)(185), to read as 
follows:


Sec.  52.720  Identification of plan.

* * * * *
    (c) * * *
    (185) On December 7, 2009, Illinois submitted a rule for the sunset 
of the provisions of 35 IAC 217 Subpart W, regulating electric 
generating unit participation in the NOX Budget Trading 
Program, since these provisions have been superseded by provisions 
established pursuant to the Clean Air Interstate Rule.
    (i) Incorporation by reference. The Illinois rule at 35 IAC 
217.751, entitled ``Sunset Provisions,'' submitted on December 7, 2009, 
effective on November 2, 2009, is incorporated by reference.

[FR Doc. 2010-4088 Filed 2-26-10; 8:45 am]
BILLING CODE 6560-50-P
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