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[Federal Register Volume 76, Number 40 (Tuesday, March 1, 2011)]
[Rules and Regulations]
[Pages 11082-11083]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4373]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2006-0976; FRL-9272-1]

Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; Oxides of Nitrogen Budget Trading Program; Technical Amendment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to remove codification of a State 
Implementation Plan (SIP) approval vacated by the U.S. Court of Appeals 
for the Sixth Circuit in a decision dated June 5, 2009. This relates to 
Ohio rule revisions concerning 240 allowances under the Nitrogen Oxides 
Budget Trading Program added to the SIP by EPA rulemaking dated 
February 13, 2008. This final rule conforms the codification of the SIP 
to the decision by the U.S. Court of Appeals for the Sixth Circuit in 
Buckeye Power, Inc. v. EPA (6th Cir., No. 08-3399, June 5, 2009).

DATES: This final rule is effective on March 1, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2006-0976. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. We recommend that you telephone Anthony Maietta, 
Environmental Protection Specialist, at (312) 353-8777 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Anthony Maietta, Environmental 
Protection Specialist, Control Strategies Section, Air Programs Branch 
(AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 353-8777, 
Maietta.anthony@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. Background Information
II. What action is EPA taking?
III. Statutory and Executive Order Reviews

I. Background information

    On October 11, 2006, the Ohio Environmental Protection Agency sent 
EPA a letter requesting, among other actions, that EPA approve rule 
revisions

[[Page 11083]]

to withdraw and permanently retire 240 oxides of nitrogen 
(NOX) allowances from the State's 2005 new source allowance 
set aside under the NOX Budget Trading Program. On February 
13, 2008 (73 FR 8197), EPA approved the State's rule revisions, in Ohio 
Administrative Code (OAC) rule 3745-14-05, into the Ohio state 
implementation plan (SIP). EPA was subsequently sued on our action, and 
on June 5, 2009, the U.S. Court of Appeals for the Sixth Circuit 
vacated our February 13, 2008 rulemaking. As a result, we are amending 
the codification of the SIP in the Code of Federal Regulations to 
reflect the court's decision. Because our prior rulemaking was vacated 
by the U.S. Court of Appeals for the Sixth Circuit, our action today is 
merely a ministerial action to reflect the court's decision, which 
imposes no requirements or costs. Therefore, under 5 U.S.C. 
553(b)(3)(B), notice and public comment is unnecessary. For similar 
reasons, EPA has good cause to waive the 30 day delayed effective date 
under 5 U.S.C. 553(d)(3). This rule is effective upon publication in 
the Federal Register.

II. What action is EPA taking?

    EPA is revising the codification of the Ohio SIP by removing a 
reference to revisions to OAC 3745-14-05 that were previously 
incorporated into the Ohio SIP at 40 CFR 52.1870(c)(142). EPA had 
incorporated these revisions to OAC 3745-14-05 into Ohio's SIP in 
rulemaking dated February 13, 2008 (73 FR 8197), but the U.S. Court of 
Appeals for the Sixth Circuit subsequently vacated this action. 
Therefore, in this action, we are removing and reserving the pertinent 
paragraph from the Code of Federal Regulations. Reserving this 
paragraph is a technical change to the codification of the SIP. This 
action does not alter any other Ohio SIP rulemaking actions, and Ohio 
is not obligated to take any further action as a result of this action.

III. Statutory and Executive Order Reviews

    This action merely revises the Code of Federal Regulations to 
reflect the effect of a federal court order and it does not impose any 
requirements. 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 May 2, 2011. 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. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Oxides of Nitrogen, Oxides of 
Nitrogen Budget Trading Program.

    Dated: February 14, 2011.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart KK--Ohio

Sec.  52.1870  [Amended]

0
2. Section 52.1870 is amended by removing and reserving paragraph 
(c)(142).

[FR Doc. 2011-4373 Filed 2-28-11; 8:45 am]
BILLING CODE 6560-50-P
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