
[Federal Register: December 15, 2008 (Volume 73, Number 241)]
[Proposed Rules]               
[Page 75983-75986]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de08-21]                         

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ENVIRONMENTAL PROTECTION AGENCY

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

[EPA-HQ-OAR-2008-0774; FRL-8750-7
RIN 2060-AP35

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to reaffirm the promulgation of certain 
revisions of the Acid Rain Program rules in order to prevent disruption 
of the program, which has achieved significant, cost-effective 
reductions in sulfur dioxide (SO2) 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 Interstate Rule (CAIR) and the final Federal Implementation Plans 
for CAIR (CAIR FIPs). The U.S. Court of Appeals for the District of 
Columbia Circuit recently issued a decision vacating and remanding CAIR 
and the CAIR FIPs. EPA and other parties have petitioned for rehearing, 
and the Court has not yet issued a mandate in the case. 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 proposing to 
reaffirm--pursuant to its authority under Title IV of the Clean Air Act 
(CAA) and CAA section 301--the promulgation of these revisions in order 
to remove any uncertainty about their regulatory status because they 
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.

DATES: Written comments must be received by January 29, 2009. Any 
request for a public hearing must be made by telephone or by e-mail to 
the person in the FOR FURTHER INFORMATION CONTACT section of this 
preamble by December 22, 2008. If such a telephone or e-mail request 
for a public hearing is received by that date, a public hearing will be 
held on December 30, 2008 in Washington, DC. For additional information 
on a public hearing and comments, see the ADDRESSES and SUPPLEMENTARY 
INFORMATION sections of this preamble.

ADDRESSES: Submit any comments, identified by Docket ID EPA-HQ-OAR-
2008-0774 (which incorporates 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), by mail to Air and Radiation Docket and Information Center, 
U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460. Any comments may also be 
submitted electronically or through hand delivery/courier by following 
the detailed instructions in the ADDRESSES section of the direct final 
rule located in the rules section of this Federal Register.

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 
alpern.dwight@epa.gov. 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 regulated
                Category                           NAICS code                          industries
----------------------------------------------------------------------------------------------------------------
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

[[Page 75984]]

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 proposes 
to reaffirm the promulgation of certain revisions, of the Acid Rain 
Program rules, that were previously promulgated and have been in effect 
since mid-2006 and to withdraw the interim final rule reaffirming the 
promulgation of these same revisions. EPA is publishing at the same 
time a direct final rule, reaffirming the promulgation of these 
revisions of the Acid Rain Program rules and withdrawing the interim 
final rule reaffirming the promulgation of these same revisions, in the 
``Rules and Regulations'' section of this Federal Register because the 
Agency views this as a noncontroversial action and anticipates no 
adverse comment. EPA is also publishing at the same time the interim 
final rule (referenced above), reaffirming the promulgation of these 
revisions, in the ``Rules and Regulations'' section of this Federal 
Register. The effectiveness of the interim final rule is immediate upon 
the date of promulgation in the Federal Register and continues for 12 
months from that date, unless the interim final rule is withdrawn on an 
earlier date by the direct final rule or, if the direct final rule 
itself is withdrawn, the final rule, addressing these rule revisions.
    EPA has explained its reasons for this action in the preamble of 
the direct final rule and, in more detail, in the preamble of the 
interim final rule.
    If EPA receives no adverse comment during the comment period, the 
Agency will not take further action on this proposed rule. If EPA 
receives any adverse comment during the comment period, the Agency will 
publish a timely withdrawal of the direct final rule in the Federal 
Register informing the public that the direct final rule is being 
withdrawn and will not take effect and that the interim final rule is 
not being withdrawn. EPA will address timely comments on the direct 
final rule in any subsequent final rule based on this proposed rule.
    EPA does not intend to institute a second comment period on this 
action. Any parties interested in commenting must do so during the 
comment period established in this notice.
    Considerations in Preparing Comments for EPA. For information on 
submitting Confidential Business Information and tips on preparing your 
comments, see the SUPPLEMENTARY INFORMATION section of the direct final 
rule located in the rules section of this Federal Register.
    Public Hearing. If requested, EPA will hold a public hearing on 
this proposed rule. EPA will hold a hearing only if the person in the 
FOR FURTHER INFORMATION CONTACT section of this preamble receives by 
telephone or e-mail by December 22, 2008 a request for a public hearing 
in order to present oral testimony on this proposed rule. If a public 
hearing is held on this proposed rule, the hearing will be held on 
December 30, 2008. Any person who plans to attend the public hearing 
should visit the EPA's Web site at http://epa.gov/airmarkets or contact 
the person in the FOR FURTHER INFORMATION CONTACT section of this 
preamble to learn if a hearing will be held and, if so, what will be 
the location and time for the hearing. Because the hearing will be held 
at a U.S. Government facility, everyone planning to attend should be 
prepared to show valid picture identification to the security staff in 
order to gain access to the meeting room.
    The public hearing, if held, will be limited to comments on this 
proposed rule. Each commenter's oral testimony will be limited to 5 
minutes. EPA encourages commenters to provide written versions of their 
oral testimonies either electronically (on computer disk or CD-ROM) or 
in paper copy. The public hearing schedule, including the list of 
speakers, will be posted on EPA's Web site at http://epa.gov/
airmarkets. Verbatim transcripts and written statements will be 
included in the rulemaking docket.
    The public hearing, if held, will provide interested parties the 
opportunity to present data, views, or arguments concerning this 
proposed rule. EPA may ask clarifying questions during the oral 
presentations, but will not respond to the presentations or comments at 
that time. Any oral comments and supporting information presented at 
the public hearing will be given the same weight as any other written 
statements and supporting information submitted during the comment 
period.
    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

I. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed

    The Acid Rain Program rule revisions whose promulgation EPA 
proposes to reaffirm in this notice are described in the preamble of 
the direct final rule, and in more detail in the preamble of the 
interim final rule, published in the Federal Register simultaneously 
with this notice. The reasons why the rule revisions are appropriate 
for the Acid Rain Program, why EPA maintains that it should remove any 
uncertainty about the legal status of the rule revisions, and therefore 
why EPA is issuing this proposed rule are also set forth in the 
preambles of the direct final rule and the interim final rule. As 
discussed above, EPA also proposes to withdraw the interim final rule 
as of effective date of any final rule issued as a result of this 
proposed rule.

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 proposing to reaffirm 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

[[Page 75985]]

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). However, the Office of Management and Budget (OMB) has 
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 proposed 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 proposes to reaffirm 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.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on 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 
proposes to reaffirm 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 proposes to 
reaffirm the promulgation of Acid Rain Program rule revisions that

[[Page 75986]]

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 
proposes to reaffirm 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 proposes to reaffirm 
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 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 proposes to reaffirm 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 proposes to reaffirm 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.

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: December 5, 2008.
Stephen L. Johnson,
Administrator.
 [FR Doc. E8-29386 Filed 12-12-08; 8:45 am]

BILLING CODE 6560-50-P
