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Approval and Promulgation of Air Quality Implementation Plans; Illinois; NOX

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Direct final rule.


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.


This direct final rule will be effective April 30, 2010, unless EPA receives adverse comments by March Start Printed Page 910431, 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.


Submit your comments, identified by Docket ID Number EPA-R05-OAR-2009-0964 by one of the following methods:

1. Follow the on-line instructions for submitting comments.

2. E-mail:

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, 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 or e-mail. The 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, 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 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 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.

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John Summerhays, (312) 886-6067, or by e-mail at

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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.

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 Start Printed Page 9105superseded 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).)

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List of Subjects in 40 CFR Part 52

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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:

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

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

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Subpart O—Illinois

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2. Section 52.740 is amended by adding paragraph (c)(185), to read as follows:

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Identification of plan.
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(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.

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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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[FR Doc. 2010-4088 Filed 2-26-10; 8:45 am]