[Federal Register Volume 74, Number 112 (Friday, June 12, 2009)]
[Rules and Regulations]
[Pages 27940-27944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13860]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 72, 73, 74, 77, and 78

[EPA-HQ-OAR-2008-0774; FRL-8917-6]
RIN 2060-AP35


Rulemaking To Reaffirm the Promulgation of Revisions of the Acid 
Rain Program Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is reaffirming the promulgation of certain 
revisions of the Acid Rain Program rules. These revisions have been in 
effect since mid-2006. Most of them are crucial to the ongoing 
operation of the Acid Rain Program, and the rest of them streamline and 
clarify requirements of the program, which has achieved significant, 
cost-effective reductions in sulfur dioxide (SO<INF>2</INF>) emissions 
from utility sources since its commencement in 1995. These rule 
revisions were finalized in the Federal Register notices that also 
finalized the Clean Air

[[Page 27941]]

Interstate Rule (CAIR) and the final Federal Implementation Plans for 
CAIR (CAIR FIPs). On July 11, 2008, the U.S. Court of Appeals for the 
District of Columbia Circuit issued a decision vacating and remanding 
CAIR and the CAIR FIPs. On December 23, 2008, in response to petitions 
for rehearing, the Court modified its July 11, 2008 decision and 
remanded CAIR and the CAIR FIPs but without a vacatur. These revisions 
to the Acid Rain Program rules were not addressed by, or involved in 
any of the issues raised by, any parties in the proceeding or the 
Court. EPA believes it is reasonable to view these revisions as 
unaffected by the Court's decision. However, EPA is treating the 
Court's remand as covering these revisions and, in response to the 
remand, is finalizing the rule reaffirming--pursuant to its authority 
under Title IV of the Clean Air Act (CAA) and CAA section 301--the 
promulgation of these revisions on their merits and in order to remove 
any uncertainty about their regulatory status. With this action, the 
existing Acid Rain regulations continue in effect, and the Acid Rain 
Program continues to operate, unchanged and uninterrupted.

DATES: The effective date of this action is August 11, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-HQ-OAR-2008-0774 (which includes by reference the dockets for CAIR 
and the CAIR FIPs, i.e., Docket ID Nos. EPA-HQ-OAR-2003-0053 and EPA-
HQ-OAR-2004-0076). All documents in the docket are listed in the 
Federal Docket Management System index at http://www.regulations.gov. 
Although listed in the index, some information is not publicly 
available, e.g., Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at the Air and Radiation 
Docket, EPA West Building, Room 3334, 1301 Constitution Ave., 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: Dwight C. Alpern, Clean Air Markets 
Division, U.S. Environmental Protection Agency, Clean Air Markets 
Division, Mailcode: 6204J, Ariel Rios Building, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, telephone (202) 343-9151, e-mail at 
<a href="/cdn-cgi/l/email-protection#7f1e130f1a0d11511b081618170b3f1a0f1e51181009"><span class="__cf_email__" data-cfemail="ea8b869a8f9884c48e9d838d829eaa8f9a8bc48d859c">[email protected]</span></a>. Electronic copies of this document can be 
accessed through the EPA Web site at: http://epa.gov/airmarkets.

SUPPLEMENTARY INFORMATION:
    Regulated Entities. Entities regulated by this action primarily are 
fossil fuel-fired 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:

------------------------------------------------------------------------
                                                          Examples of
                                                          potentially
            Category                  NAICS code           regulated
                                                          industries
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Industry........................  221112 and others.  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, of which EPA is now 
aware, that 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 provisions in Sec. Sec.  72.6, 72.7, and 72.8 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 
in the preceding FOR FURTHER INFORMATION CONTACT section.
    Administrative Procedures Used in This Action. This notice 
finalizes the promulgation of certain revisions, of the Acid Rain 
Program rules, that were previously promulgated and have been in effect 
since mid-2006 and withdraws the interim final rule (73 FR 75983 and 
75959, December 15, 2008) reaffirming the promulgation of these same 
revisions. On December 15, 2008, EPA published in the Federal Register 
parallel notices of proposed and direct final rules reaffirming the 
promulgation of the non-CAIR- and non-CAIR-FIP-related Acid Rain 
Program rule revisions that were originally finalized in the Federal 
Register notices that also finalized CAIR and CAIR FIPs. 73 FR 75954 
and 75983, December 15, 2008. As explained in the proposed and direct 
final notices, those notices provided interested persons an opportunity 
for public hearing and comment on the rule revisions until January 29, 
2009. EPA explained that, if it received any adverse comment on the 
direct final notice, that notice would be withdrawn, no further 
opportunity for public comment would be provided, and a final rule 
would be issued based on the proposed notice and responding to all 
comments. The interim final rule would continue in effect until 
December 15, 2009 unless it was withdrawn on an earlier date by the 
direct final rule or (if the direct final rule itself was withdrawn) 
the final rule addressing these rule revisions. Therefore, following 
the receipt of an adverse comment, EPA withdrew the direct final notice 
(74 FR 13124, March 26, 2009).
    Outline. The following outline is provided to aid in locating 
information in this preamble.

I. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed
II. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    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
    K. Congressional Review Act

I. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed

    The Acid Rain Program rule revisions whose promulgation EPA is 
reaffirming in this final rule are described in detail in section III 
of the preamble of the interim final rule (73 FR 75963-66), which also 
explains the merits of the revisions. The revisions are non-CAIR- and 
non-CAIR-FIP-related Acid Rain Program rule revisions that were 
originally finalized in the Federal

[[Page 27942]]

Register notices that also finalized CAIR and the CAIR FIPs. As 
explained in the interim final notice, the revisions have been in 
effect since mid-2006, most of them are crucial to the ongoing 
operation of the Acid Rain Program, and the rest of them streamline and 
clarify requirements of the program.
    On July 11, 2008 (before promulgation of EPA's interim final and 
proposed notices), the U.S. Court of Appeals for the District of 
Columbia Circuit had issued a decision vacating and remanding CAIR and 
the CAIR FIPs. On December 23, 2008 (after interim final and proposed 
notices were promulgated but before the end of the comment period on 
the direct final notice), the Court modified its July 11, 2008 decision 
in response to petitions for rehearing and remanded CAIR and the CAIR 
FIPs but without a vacatur. These revisions to the Acid Rain Program 
rules were not addressed by, or involved in any of the issues raised 
by, any parties in the proceeding or the Court. EPA believes it is 
reasonable to view these revisions as unaffected by the Court's 
decision. However, EPA is treating the Court's remand as covering these 
revisions and, in response to the remand, is finalizing its 
reaffirmation--pursuant to its authority under Title IV of the Clean 
Air Act (CAA) and CAA section 301--of the promulgation of these 
revisions for the reasons set forth in the interim final rule preamble 
(73 FR 75963-66) and in order to remove any uncertainty about their 
regulatory status.\1\
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    \1\ As noted above, the Court's disposition of CAIR and the CAIR 
FIPs changed--from remand with vacatur to remand without vacatur--
after EPA proposed and explained the reaffirmation in the interim 
final and proposed notices but before the end of the comment period 
on the direct final notice. Moreover, the final reaffirmation in 
this action still is in response to a remand and based on the 
revisions' merits set forth in the interim final rule. EPA therefore 
maintains that, despite the Court's modification of its decision, 
the public has had a full opportunity to comment on the 
reaffirmation.
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    EPA received only one comment on these revisions during the comment 
period for the direct final rule affirming the promulgation of the 
revisions. The comment, which was submitted on December 15, 2008, 
objected to finalization of any rules until the new administration 
could review them. The comment raised no substantive issues concerning 
any of the revisions at issue here. Having completed the requested 
review, EPA concludes that the promulgation of these revisions should 
be reaffirmed on their merits as set forth in the interim final rule 
(73 FR 75963-66). Further, in light of such final reaffirmation, EPA is 
withdrawing the interim final rule as of the effective date of this 
final rule. With this action, the existing Acid Rain regulations 
continue in effect, and the Acid Rain Program continues to operate, 
unchanged and uninterrupted.

II. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735 (October 4, 1993)) and is 
therefore not subject to review under the Executive Order. In this 
action, EPA is simply reaffirming the promulgation of Acid Rain Program 
rule revisions that were previously issued and are currently in effect 
and have been since mid-2006.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This rule simply reaffirms the promulgation of Acid Rain Program rule 
revisions that were previously issued, does not change the existing 
requirements in 40 CFR Parts 72, 73, 74, 77, and 78, and thus does not 
change the existing information collection burden. Moreover, EPA 
maintains that the effect of these revisions when they were first 
promulgated was, if anything, to reduce somewhat the information 
collection burden on regulated sources, e.g., by requiring compliance 
with the allowance-holding requirement at a source, rather than unit, 
level (thereby removing the need to transfer allowances among units at 
the same source) and by making other changes to the rules in place when 
the rule revisions were originally promulgated (such as removing the 
requirement for submission of an annual compliance certification 
report). In addition, the Office of Management and Budget (OMB) 
previously approved the information collection requirements in the 
existing rules under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501, et seq., and has assigned OMB control number 2060-0258. 
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 (5 U.S.C. 601, et seq.) (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 SBA's 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 this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on small 
entities, the impact of concern is any significant adverse economic 
impact on small entities, since the primary purpose of the regulatory 
flexibility analysis is to identify and address regulatory alternatives 
``which minimize any significant economic impact of the rule on small 
entities.'' 5 U.S.C. 603 and 604. Thus, an agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden or 
otherwise has a positive economic effect on all of the small entities 
subject to the rule.
    This rule does not change the existing Acid Rain Program rules and 
thus the economic impact of those rules on small entities. The rule 
simply reaffirms the promulgation of existing Acid Rain Program rule 
revisions that have been in effect since mid-2006. Moreover, the effect 
of these revisions when they were first promulgated was, if anything, 
to reduce somewhat the economic impact of the then-existing rules on 
all regulated sources and thus on small entities that might be, or own, 
regulated sources. For example, by requiring compliance on a source, 
rather than a unit, basis, the revisions reduced the potential for 
excess emissions penalties due to an inadvertent error, e.g., in the 
owner's distribution of allowances among the units at a source that 
would cause one unit to have more than enough allowances to cover 
emissions and another unit to not have enough allowances to cover 
emission. As a further example, the revisions removed some requirements 
(e.g., the required submission of an annual compliance certification 
report) and thereby removed some costs of compliance for all regulated 
sources.

[[Page 27943]]

    We received no comment on any potential impacts of the rule on 
small entities or on any issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This rule does not change the existing Acid Rain Program rules and 
therefore does not result in any additional expenditures to State, 
local, and tribal governments or to the private sector. The rule simply 
reaffirms the promulgation of Acid Rain Program rule revisions that 
were previously issued and that are still in effect and have been since 
mid-2006. Moreover, the effect of these revisions when they were first 
promulgated was, if anything, to reduce somewhat the expenditures of 
State, local, and tribal governments and the private sector under the 
then-existing Acid Rain Program rules. For the same reasons, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (Aug. 
10, 1999)), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This rule 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 rule simply reaffirms the 
promulgation of Acid Rain Program rule revisions that were previously 
issued and that are still in effect and have been since mid-2006. 
Moreover, when first promulgated, these revisions did not have 
substantial direct effects on States, the relationship between the 
national government and the States, or the distribution of power and 
responsibilities. Thus, Executive Order 13132 does not apply to this 
rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
With Indian Tribal Governments'' (65 FR 67249 (Nov. 9, 2000)), requires 
EPA to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' This rule does not have tribal 
implications, as specified in Executive Order 13175. This rule simply 
reaffirms the promulgation of Acid Rain Program rule revisions that 
were previously issued and that are still in effect and have been since 
mid-2006. Moreover, when first promulgated, these revisions did not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, entitled ``Protection of Children From 
Environmental Health Risks and Safety Risks'' (62 FR 19885 (Apr. 23, 
1997)), applies to any rule that: (1) Is determined to be 
``economically significant'' as defined under Executive Order 12866, 
and (2) concerns an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children. If 
the regulatory action meets both criteria, the Agency must evaluate the 
environmental health or safety effects of the planned rule on children, 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency. EPA interprets Executive Order 13045 as applying only to 
those regulatory actions that are based on health or safety risks, such 
that the analysis required under section 5-501 of the Executive Order 
has the potential to influence the regulation.
    This rule is not subject to the Executive Order because it is not a 
significant regulatory action under Executive Order 12866 and is not 
based on health or safety risks. This rule simply reaffirms the 
promulgation of Acid Rain Program rule revisions that were previously 
issued and that are still in effect and have been since mid-2006. 
Moreover, when first promulgated, these revisions implemented certain 
requirements of the Acid Rain Program that were not on based on health 
or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

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

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 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

[[Page 27944]]

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. The NTTAA 
directs EPA to provide Congress, through OMB, explanations when the 
Agency decides not to use available and applicable voluntary consensus 
standards. This rule simply reaffirms the promulgation of Acid Rain 
Program rule revisions that were previously issued and that are still 
in effect and have been since mid-2006. Moreover, when first 
promulgated, these revisions did not address the use of any technical 
standards. Thus, this rule is not subject to the NTTAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 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 rule 
will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not change the level of protection provided to human health or the 
environment, but simply reaffirms the promulgation of Acid Rain Program 
rule revisions that were previously issued and that are still in effect 
and have been since mid-2006. Moreover, when first promulgated, these 
revisions did not change the level of protection provided to human 
health or the environment.

K. Congressional Review Act

    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 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. 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). This rule will be effective on August 11, 2009 without further 
notice.

List of Subjects in 40 CFR Parts 72, 73, 74, 77, and 78

    Environmental protection, Acid rain, Administrative practice and 
procedure, Air pollution control, Electric utilities, Intergovernmental 
relations, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: June 5, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-13860 Filed 6-11-09; 8:45 am]
BILLING CODE 6560-50-P


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