[Federal Register: May 26, 2004 (Volume 69, Number 102)]
[Rules and Regulations]
[Page 30037-30040]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26my04-13]
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Part III
Environmental Protection Agency
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40 CFR Part 52
Final Determination To Extend Deadline for Promulgation of Action on
Section 126 Petition From North Carolina; Final Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OAR-2004-0076; FRL-7667-3]
Final Determination to Extend Deadline for Promulgation of Action
on Section 126 Petition From North Carolina
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is extending by six additional months the deadline for
taking final action on a petition submitted by the State of North
Carolina under section 126 of the Clean Air Act (CAA). The petition
requests that EPA make findings that certain sources located in 13
States are significantly contributing to fine particulate matter and/or
8-hour ozone nonattainment or maintenance problems in North Carolina.
Under the CAA, EPA is authorized to grant this time extension if EPA
determines that the extension is necessary, among other things, to meet
the purposes of the CAA's rulemaking requirements. By this document,
EPA is making that determination.
DATES: Effective Date: This action is effective on May 18, 2004.
ADDRESSES: The EPA has established a docket for the action on North
Carolina's section 126 petition under Docket ID No. OAR-2004-0076. All
documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket.
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
in EDOCKET or in hard copy at the Docket, EPA/DC, EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC. 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 EPA Air Docket is
(202) 566-1742.
You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
http://www.epa.gov/fedrgstr/.
FOR FURTHER INFORMATION CONTACT: For general information and policy
questions, contact Carla Oldham, U.S. EPA, Office of Air Quality
Planning and Standards, Air Quality Strategies and Standards Division,
C539-02, Research Triangle Park, NC 27711, telephone (919) 541-3347, e-
mail at oldham.carla@epa.gov. For legal questions contact Howard J.
Hoffman, U.S. EPA, Office of General Counsel, Mail Code 2344A, 1200
Pennsylvania Avenue, NW., Washington, DC 20460, telephone (202) 564-
5582, e-mail at hoffman.howard@epa.gov.
SUPPLEMENTARY INFORMATION: Today's action is procedural and is set in
the context of a separate action that EPA is taking to address the
problem of interstate transport of fine particulate matter and 8-hour
ozone and their precursors in the eastern half of the United States.
On January 30, 2004 (69 FR 4566), EPA proposed the ``Rule to Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Interstate
Air Quality Rule),'' now known as the Clean Air Interstate Rule. This
action proposes to require 29 States and the District of Columbia to
revise their State implementation plans (SIPs) to include control
measures to reduce specified amounts of emissions of sulfur dioxide
(SO2) and/or nitrogen oxides (NOX). The proposal is designed
to assure that the SIPs meet the requirements of CAA section
110(a)(2)(D), which mandates that SIPs contain adequate provisions
prohibiting emissions that contribute significantly to nonattainment
problems in downwind States. Controlling the pollution transport will
assist the downwind States in achieving the fine particulate matter and
8-hour ozone national ambient air quality standards.
On March 19, 2004, EPA received a petition from the State of North
Carolina filed under CAA section 126. Section 126 is related to section
110(a)(2)(D) and is also designed to remedy interstate pollution
transport. Section 126(b) authorizes States or political subdivisions
to petition EPA for a finding that major stationary sources or groups
of sources in upwind States emit in violation of the prohibition of
section 110(a)(2)(D), by contributing significantly to nonattainment
problems in downwind States. If EPA makes such a finding, EPA is
authorized to establish Federal emissions limits for the affected
sources.
Under section 126(b), EPA must make the finding requested in the
North Carolina petition, or deny the petition, within 60 days of the
March 19, 2004, receipt of the petition. Under section 126(c), any
existing sources for which EPA makes the requested finding must cease
operations within 3 months of the finding, except that those sources
may continue to operate if they comply with emission limitations and
compliance schedules that EPA may provide to bring about compliance
with the applicable requirements.
Section 126(b) further provides that EPA must allow a public
hearing for the petition. In addition, EPA's action under section 126
is subject to the procedural requirements of CAA section 307(d). See
section 307(d)(1)(N). One of these requirements is notice-and-comment
rulemaking, under section 307(d)(3).
In addition, section 307(d)(10) provides for a time extension,
under certain circumstances, for rulemaking subject to section 307(d).
Specifically, section 307(d)(10) provides:
Each statutory deadline for promulgation of rules to which this
subsection applies which requires promulgation less than six months
after date of proposal may be extended to not more than six months
after date of proposal by the Administrator upon a determination
that such extension is necessary to afford the public, and the
agency, adequate opportunity to carry out the purposes of the
subsection.
Section 307(d)(10) applies to section 126 rulemakings because the 60-
day time limit under section 126(b) necessarily limits the period after
proposal to less than 6 months.
In accordance with section 307(d)(10), EPA is today determining
that the 60-day period afforded by section 126(b) is not adequate to
allow the public and the Agency adequate opportunity to carry out the
purposes of section 307(b). Specifically, the 60-day period is not
sufficient for EPA to develop an adequate proposal on whether the
sources identified in the section 126 petition contribute significantly
to nonattainment problems downwind, and, further, to allow public input
into the promulgation of any controls to mitigate or eliminate those
contributions.
The determination whether upwind emissions contribute significantly
to downwind nonattainment areas is highly complex. The proposed Clean
Air Interstate Rule, which proposes a somewhat comparable
determination, relies on extensive computer modeling of air quality
emissions and ambient impacts therefrom in the large geographic region
of the eastern half of the United States.
In action on the section 126 petition, EPA must make determinations
that, generally, are at least as complex as those required for the
Clean Air Interstate Rule. Moreover, if EPA determines that the
petitions should be granted, EPA would promulgate
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appropriate controls for the affected sources.
The EPA is in the process of determining what would be an
appropriate schedule for action on the section 126 petition, in light
of the complexity of the required determinations and the usefulness of
coordinating generally with the procedural path for the Clean Air
Interstate Rule. It is imperative that this schedule afford EPA
adequate time to prepare a proposal that clearly elucidates the issues
so as to facilitate public comments, as well as to afford the public
adequate time to comment. The EPA is currently discussing an
appropriate schedule with North Carolina.
Extending the date for action on the section 126 petition for 6
months is necessary to determine the appropriate overall schedule for
action, as well as to continue to develop the technical analysis needed
to develop a proposal.
II. Final Action
A. Rule
Today, EPA is determining, under CAA section 307(d)(10), that a 6-
month period is needed to assure the development of an appropriate
schedule for rulemaking on the North Carolina section 126 petition,
which schedule would allow EPA adequate time to prepare a notice of
proposed rulemaking that will best facilitate public comment, as well
as allow the public sufficient time to comment. Accordingly, EPA is
granting a 6-month extension to the time for rulemaking on the North
Carolina section 126 petition. Under this extension, the date for
action on the petition is November 18, 2004.
B. Notice-and-Comment Under the Administrative Procedures Act (APA)
This document is a final agency action, but may not be subject to
the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The
EPA believes that because of the limited time provided to make a
determination that the deadline for action on the section 126 petition
should be extended, Congress may not have intended such a determination
to be subject to notice-and-comment rulemaking. However, to the extent
that this determination is subject to notice-and-comment rulemaking,
EPA evokes the good cause exception pursuant to the EPA, 5 U.S.C.
553(b)(3)(B). Providing for notice-and-comment would be impracticable
because of the limited time provided for making this determination, and
would be contrary to the public interest because it would divert Agency
resources from the critical substantive review of the section 126
petition.
C. Effective Date Under the APA
Today's action is effective on May 18, 2004. Under the APA, 5
U.S.C.(d)(3), agency rulemaking may take effect before 30 days after
the date of publication in the Federal Register if the agency has good
cause to mandate an earlier effective date. Today's action--a deadline
extension--must take effect immediately because its purpose is to
extend by 6 months the deadline for action on the petition. Moreover,
EPA intends to use immediately the 6-month extension period to continue
to develop an appropriate schedule for the ultimate action on the
section 126 petition and to continue to develop the technical analysis
needed for the notice of proposed rulemaking. These reasons support an
effective date prior to 30 days after publication.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The OMB has exempted this
regulatory action from Executive Order 12866 review. Accordingly,
Executive Order 12866 does not apply to today's action.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Today's rule does not create new requirements and is not subject to the
Paperwork Reduction Act.
C. Regulatory Flexibility Act
Today's final rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice-and-comment rulemaking requirements under
the APA or any other statute. This rule is not subject to notice-and-
comment requirements under the APA or any other statute because
although the rule is subject to the APA, the Agency has invoked the
``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not
subject to the notice-and-comment requirement.
Although this final rule is not subject to the RFA, EPA nonetheless
has assessed the potential impact on small entities subject to the
rule. Today's rule does not create new requirements for small entities
or other sources.
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, 2
U.S.C. 1532, EPA generally must prepare a written statement, including
a cost-benefit analysis, for any proposed or final rules with ``Federal
mandates'' that may result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year.
The EPA has determined that these requirements do not apply to
today's action because today's rulemaking is not a Federal mandate--
rather, it simply extends the date for EPA to take action on a
petition--and it 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, August
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.''
Today's action does not have federalism implications. It imposes no
regulatory burdens. Thus, the requirements of section 6 of the
Executive Order do not apply to this rulemaking action.
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, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of
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regulatory policies that have Tribal implications.'' ``Policies that
have Tribal implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian Tribes, on the relationship between the Federal government and
the Indian Tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.''
This rule does not have tribal implications. It will 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, as specified in Executive Order 13175.
Today's action does not significantly or uniquely affect the
communities of Indian tribal governments. As discussed above, today's
action imposes no new requirements that would impose compliance
burdens. Accordingly, the requirements of Executive Order 13175 do not
apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health and Safety Risks'' (62 FR 19885, April 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.
The 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 Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it simply extends the deadline for EPA to
take action on a petition and does not impose any regulatory
requirements.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions 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. Today's action does not establish any new
regulatory requirements.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer 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 that establish technical standards, unless to do
so would be inconsistent with applicable law or otherwise impractical.
The NTTAA does not apply because today's action does not establish
any new technical standards.
J. Congressional Review Act
The Congressional Review Act (CRA), 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. Section 808 of the CRA provides an
exception to this requirement. For any rule for which an agency for
good cause finds that notice and comment are impracticable,
unnecessary, or contrary to the public interest, the rule may take
effect on the date set by the Agency. The 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.
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
K. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by EPA. This
section provides, in part, that petitions for review must be filed in
the Court of Appeals for the District of Columbia Circuit (i) when the
agency action consists of ``nationally applicable regulations
promulgated, or final actions taken, by the Administrator,'' or (ii)
when such action is locally or regionally applicable, if ``such action
is based on a determination of nationwide scope or effect and if in
taking such action the Administrator finds and publishes that such
action is based on such a determination.''
Under CAA section 307(b)(1), a petition to review today's action
must be filed in the Court of Appeals for the District of Columbia
Circuit within 60 days of May 18, 2004.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone, Reporting and recordkeeping
requirements.
Dated: May 18, 2004.
Michael O. Leavitt,
Administrator.
[FR Doc. 04-11768 Filed 5-25-04; 8:45 am]
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