2010-26438. Approval and Promulgation of Implementation Plans; Illinois; Voluntary Nitrogen Oxides Controls

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

On May 1, 2001, the Illinois Environmental Protection Agency (Illinois EPA) submitted a request for EPA approval of a State Implementation Plan (SIP) revision for regulations governing Nitrogen Oxides (NO_X) emission allowances granted for implementation of voluntary control of NO_X emissions from sources other than those covered by other Illinois NO_X emission control regulations. On March 4, 2008, EPA proposed to disapprove the requested SIP revision. This final rule completes the disapproval of the requested SIP revision.

DATES:

This final rule is effective on November 22, 2010.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2007-1096. 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 http://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 Edward Doty, Environmental Scientist, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Edward Doty, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. What action is EPA taking?

II. Did anyone comment on the proposed disapproval of the state's SIP revision request?

III. Illinois' Voluntary Nitrogen Oxides Control Rule

IV. Why did EPA propose to disapprove this rule as a SIP revision?

V. Final Action

VI. Statutory and Executive Order Reviews

I. What action is EPA taking?

EPA is disapproving a requested Illinois SIP revision, submitted on May 1, 2001, which would have incorporated a rule governing NO_X emission allowances (estimation and crediting of NO_X emission reductions as emission allowances for use in a national, Federally-operated NO_X emissions trading program) resulting from the application of voluntary NO_X emission reductions at source facilities not subject to Illinois' existing NO_X emission control rules. This rule is specified/codified in Illinois' 35 Illinois Administrative Code (IAC), part 217, subpart X (the Subpart X rule).

II. Did anyone comment on the proposed disapproval of the state's SIP revision request?

No comments were received during the 30-day comment period on the proposed disapproval of the Subpart X rule as an Illinois SIP revision. The proposed rule was published on March 4, 2008 (73 FR 11565).

III. Illinois' Voluntary Nitrogen Oxides Control Rule

On May 1, 2001, the Illinois EPA submitted 35 Illinois Administrative Code (IAC), part 217, subpart X as a requested revision of the Illinois SIP. The Subpart X rule provided for the determination and crediting of NO_X emission reductions resulting from the voluntary application of NO_X emission controls as NO_X emission allowances that could be sold in a national NO_X emission allowance trading system. A detailed description of the Subpart X rule and its subparts can be found in our proposed rule published in the Federal Register on March 4, 2008 (73 FR 11566).

IV. Why did EPA propose to disapprove this rule as a SIP revision?

Our March 4, 2008, proposed rule contained a number of comments specific to each subpart of the Subpart X rule (73 FR 11573). Based on the more detailed comments and concerns raised in the proposed rule, we had the following general concerns regarding the Subpart X rule: (1) The Subpart X rule would unacceptably grant NO_X emission allowances for source closures; (2) the rule does not prevent crediting of facility-specific NO_X emission reductions resulting from shifting of production and NO_X emissions from one facility to another; (3) the rule establishes an emission baseline year (from which NO_X emission allowances are earned through subsequent NO_X emission reductions), 1995, that is too far in the past, prior to the State's adoption of the Subpart X rule and prior to the baseline year used for other sources involved in EPA's NO_X Budget Trading Program; (4) the rule unacceptably allows the use of 40 CFR part 60 emission monitoring requirements rather than 40 CFR part 75 monitoring requirements required of other sources involved in the NO_X Budget Trading Program; and, (5) the rule contains other minor deficiencies as noted in our March 4, 2008, proposed rule. Together, these problems led us to propose disapproval of the Subpart X rule as a revision to the Illinois SIP.

We have received no public comments or additional supporting documentation from the State that reverses or negates the above concerns. Therefore, these concerns remain as the bases for this final action.

V. Final Action

EPA is disapproving Illinois' 35 Illinois Administrative Code (IAC), part 217, subpart X rule submitted as a requested SIP revision on May 1, 2001.

VI. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.

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

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq .).

Unfunded Mandates Reform Act

Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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).

Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000).

Executive Order 13132: Federalism

This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act (CAA).

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

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a State rule implementing a Federal Standard.

National Technology Transfer Advancement Act

In reviewing State submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a State submission, to use VCS in place of a State submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Paperwork Reduction Act

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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. section 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 20, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Ozone
• Reporting and recordkeeping requirements

Dated: October 7, 2010.

Susan Hedman,

Regional Administrator, Region 5.

40 CFR part 52 is 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 O—Illinois

2. Section 52.726 is amended by adding paragraph (hh) to read as follows:

§ 52.726

Control strategy: Ozone.

* * * * *

(hh) Disapproval. EPA is disapproving 35 Illinois Administrative Code part 217, subpart X, Voluntary NO_X Emissions Reduction Program, as a revision to the Illinois SIP.