[Federal Register Volume 73, Number 214 (Tuesday, November 4, 2008)]
[Rules and Regulations]
[Pages 65554-65556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26264]
[[Page 65554]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 75
[EPA-HQ-OAR-2008-0800; FRL-8737-5]
RIN 2060-AP39
Stay of the Effectiveness of Requirements for Air Emission
Testing Bodies
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to stay the effectiveness of
requirements for air emission testing bodies.
On January 24, 2008, final amendments to regulations on competency
requirements for air emission testing bodies (AETBs) were published in
the Federal Register. The AETB provision generally requires stack
testers and stack testing companies to meet certain minimum competency
requirements described in ASTM D 7036 by January 1, 2009.
On March 25, 2008, the Utility Air Regulatory Group (UARG) filed a
Petition for Review primarily claiming that EPA could not by the AETB
requirement hold utilities responsible for something they cannot
control. While EPA is considering revisions to the requirements to
address UARG's concerns, it cannot propose and complete any such
revision through notice and comment rulemaking before the compliance
date contained in the existing rule, thus necessitating this action.
EPA needs to complete this action staying effectiveness of the AETB
requirements in order to secure an extension of an Order Granting
Abeyance of Further Proceedings which expires on October 29, 2008, when
the Agency must file Motions to Govern Further Proceedings.
DATES: Effective on November 4, 2008, in Appendix A to 40 CFR Part 75,
the effectiveness of Section 6.1.2(a) through (c) is stayed
indefinitely.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0800. 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: John Schakenbach, U.S. Environmental
Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone
(202) 343-9158, e-mail at [email protected]. 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
Category NAICS code potentially
regulated 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 which EPA is now aware
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 listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
Judicial Review. Under CAA section 307(b)(1), judicial review of
this final rule is available only by filing a petition for review in
the U.S. Court of Appeals for the District of Columbia Circuit on or
before January 5, 2009. 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, does not extend the time
within which a petition for judicial review may be filed, and does not
postpone the effectiveness of this rule. Under CAA section 307(b)(2),
the requirements established by this rule may not be challenged
separately in any civil or criminal proceedings brought by EPA to
enforce these requirements.
Outline. The following outline is provided to aid in locating
information in this preamble.
I. Overview
II. Administrative Procedures Used in This Action
III. Staying the Effectiveness of Requirements for Air Emission
Testing Bodies
A. Rule revision staying the effectiveness of requirements for
air emission testing bodies
IV. 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. Overview
On January 24, 2008, final amendments to 40 CFR part 75 on
competency requirements for air emission testing bodies (AETBs) were
published in the Federal Register (See 73 FR 4365, 4367, and 4372). The
AETB provision generally requires stack testers and stack testing
companies to meet certain minimum competency requirements described in
ASTM D 7036 by January 1, 2009.
[[Page 65555]]
On March 25, 2008, the Utility Air Regulatory Group (UARG) filed a
Petition for Review primarily claiming that EPA could not by the AETB
requirement hold utilities responsible for something they cannot
control. While EPA is considering revisions to the requirements to
address UARG's concerns, it cannot propose and complete any such
revision through notice and comment rulemaking before the compliance
date contained in the existing rule, thus necessitating this action.
EPA needs to complete this action staying effectiveness of the AETB
requirements in order to secure an extension of an Order Granting
Abeyance of Further Proceedings which expires on October 29, 2008, when
the Agency must file Motions to Govern Further Proceedings.
EPA believes that this rulemaking qualifies for the ``good cause''
exemption under section 553(b)(3)(B) of the APA. EPA has determined
that prior proposal and opportunity for comment are unnecessary because
the public is not likely to be particularly interested, and notice and
opportunity for comment were previously provided for the AETB provision
(see, proposed rule 71 FR 49300, August 22, 2006).
EPA believes that this rulemaking qualifies for the ``good cause''
exemption to make the rule effective immediately under section 553(d)
of the APA because it is a relaxation of a restriction by staying the
effectiveness of requirements for air emission testing bodies.
II. Administrative Procedures Used in This Action
Under CAA section 307(d)(1)(S), this action revising the Acid Rain
Program rules is subject to the requirements of CAA section 307(d).
Section 307(d)(3) provides that a notice of proposed rulemaking,
providing an opportunity for a public hearing and comment, must be
published in the Federal Register, except under certain circumstances,
as provided in the Administrative Procedure Act (5 U.S.C. 553(b)). Two
examples of where the requirement for such a notice does not apply are:
(1) The public is not likely to be particularly interested; and (2)
notice and opportunity for comment were previously provided (See 5
U.S.C. 553(b)(B)).
EPA finds, for the following reasons, that notice and opportunity
for public hearing and comment concerning the stay of effectiveness of
requirements for air emission testing bodies is not required because
(1) the public is not likely to be particularly interested because of
the relatively minor nature of this rulemaking action; and (2) notice
and opportunity for comment were previously provided for the AETB
provision (see, proposed rule 71 FR 49300, August 22, 2006). As
discussed above, this rule revision was finalized--after notice and
opportunity for comment--on January 24, 2008.
In addition, EPA also finds that there is good cause under 5 U.S.C.
553(d) to make this final rule--staying the effectiveness of
requirements for air emission testing bodies--immediately effective
upon publication in the Federal Register. As explained above, the final
rule provides a relaxation of a requirement by staying the
effectiveness of requirements for air emission testing bodies.
III. Staying the Effectiveness of Requirements for Air Emission Testing
Bodies
In this final rule, EPA is staying the effectiveness of
requirements for air emission testing bodies.
IV. 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 (Oct. 4, 1993)) and is
therefore not subject to review under the Executive Order. In this
action, EPA is simply staying the effectiveness of requirements for air
emission testing bodies that were previously issued and would have
become effective on January 1, 2009.
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.
Burden is defined at 5 CFR 1320.3(b). This action does not impose any
new information collection burden because it is simply staying the
effectiveness of requirements for AETBs.
C. Regulatory Flexibility Act
This 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 Administrative Procedure Act (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.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector [The term ``enforceable duty''
does not include duties and conditions in voluntary Federal contracts
for goods and services.] Therefore, this action is not subject to the
requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule simply
stays the effectiveness of requirements for air emission testing bodies
and therefore does not result in any additional expenditures to State,
local, and tribal governments or to the private sector. 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 stays the
effectiveness of requirements for air emission testing bodies that
would have become effective on January 1, 2009. Thus, Executive Order
13132 does not apply to this rule.
[[Page 65556]]
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule simply
stays the effectiveness of requirements for air emission testing bodies
that would have become effective on January 1, 2009. Thus, Executive
Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate 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 No. 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 stays the effectiveness of requirements for air emission
testing bodies that would have become effective on January 1, 2009.
Moreover, when first promulgated, the AETB provision required the use
of ASTM D 7036-04, an applicable voluntary consensus standard.
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 stays the effectiveness of requirements for air
emission testing bodies that would have become effective on January 1,
2009. Moreover, when first promulgated, the AETB provision 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. Section 808 allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice and public procedure is impracticable,
unnecessary or contrary to the public interest. This determination must
be supported by a brief statement. 5 U.S.C. 808(2). As stated
previously, EPA has made such a good cause finding, including the
reasons therefor, and established that the effective date shall be upon
publication in the Federal Register. 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).
List of Subjects in 40 CFR Part 75
Environmental protection, Acid rain, Administrative practice and
procedure, Air pollution control, Electric utilities, Carbon dioxide,
Continuous emission monitoring, Intergovernmental relations, Nitrogen
oxides, Reporting and recordkeeping requirements, Sulfur oxides,
Reference test methods.
Dated: October 29, 2008.
Stephen L. Johnson,
Administrator.
0
40 CFR part 75 is amended as follows:
PART 75--CONTINUOUS EMISSION MONITORING
0
1. The authority citation for part 75 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Appendix A to Part 75--[Amended]
0
2. In Appendix A to Part 75, the effectiveness of Section 6.1.2(a)
through (c) is stayed indefinitely.
[FR Doc. E8-26264 Filed 11-3-08; 8:45 am]
BILLING CODE 6560-50-P