[Federal Register Volume 73, Number 220 (Thursday, November 13, 2008)]
[Rules and Regulations]
[Pages 67107-67109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26842]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-RO9-OAR-2006-0184; FRL-8739-7]
Stay of Effectiveness of Control Measure Regulating Dust
Emissions at the Four Corners Power Plant; Navajo Nation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to stay the effectiveness of a
control measure regulating dust emissions from certain operations that
we promulgated in our Federal Implementation Plan for the Four Corners
Power Plant located on the Navajo Nation. The control measure would
take effect on November 5, 2008. On October 1, 2007, Arizona Public
Service Company filed a Petition for Review claiming, inter alia, that
EPA had not provided an adequate explanation for promulgating the
control measure. In the litigation, EPA has agreed that the control
measure should be remanded and vacated. EPA needs to complete this
action staying the effectiveness of the control measure until the Court
rules on the Petition, including the Petitioner's and EPA's requests to
remand and vacate the control measure.
DATES: The stay to 40 CFR 49.23(d)(3) is effective on November 13, 2008
until further notice. The EPA will publish a document in the Federal
Register announcing that the stay is lifted.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-RO9-OAR-2006-0184. All documents in the docket are listed in
the Federal Docket Management System index at www.regulations.gov.
Although listed in the index, some information is
[[Page 67108]]
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
though 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.
You can inspect a copy of the docket at our Region IX office during
normal business hours by appointment. The address is: Planning Office
(AIR-2), Air Division, U.S. Environmental Protection Agency, Region IX,
75 Hawthorne Street, San Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: Steve Frey, EPA Region IX, (415) 972-
3990 or [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us''
and ``our'' refer to EPA.
I. Overview
On May 7, 2007 (72 FR 25698), we published a Source-Specific
Federal Implementation Plan for Four Corners Power Plant; Navajo Nation
(hereinafter ``FIP''). The operator and partial owner of the Four
Corners Power Plant is the Arizona Public Service Company (``APS'').
One provision of the FIP regulated dust emissions at the power plant's
coal handling and storage operations, flyash handling and storage and
road sweeping activities, as follows: ``Within 548 days of promulgation
of this section each owner or operator shall not emit dust with an
opacity greater than 20 percent from any crusher, grinding mill,
screening operation, belt conveyor, or truck loading or unloading
operation.'' 72 FR 25705, codified at 40 CFR 49.23(d)(3)(hereinafter
``dust control measure'').
APS filed a timely Petition for Review of the FIP challenging,
inter alia, EPA's basis for requiring compliance with the dust control
measure. Arizona Public Service Company v. EPA et al., Case No. 07-
9546, (10th Cir., Oct. 1, 2007). Sierra Club requested and was granted
leave to intervene in the case. All parties have filed their briefs
regarding the Petition and the Court has heard oral argument from the
parties. The Court has not issued any decision in the matter.
EPA, however, has taken the position in the litigation by APS that
it would be appropriate for the Court to remand and vacate the dust
control measure. In its brief, EPA has advised the Court that the FIP
did not contain an adequate explanation of its rationale for imposing
the dust control measure. The Court has not ruled on the case. EPA,
therefore, considers it appropriate to stay the effectiveness of the
dust control measure pending the outcome of the litigation.
EPA believes that this rulemaking qualifies for the ``good cause''
exemption under the Administrative Procedures Act (``APA''). 5 U.S.C.
553(b)(3). EPA has determined that prior proposal and opportunity for
comment are impracticable and unnecessary because the public is not
likely to be particularly interested, and notice and opportunity for
comment were previously provided when EPA promulgated the dust control
measure. (See 72 FR at 25705 (May 7, 2007).) EPA also believes that
this rulemaking qualifies for the ``good cause'' exemption to make the
rule effective immediately under Section 553(d) because it is a
relaxation of a restriction by staying the implementation of the dust
control measure. 5 U.S.C. 553(d). EPA has also found that consistent
with 5 U.S.C. 705, it is in the interest of justice to postpone the
effective date of the dust control measure pending the Court's decision
in Arizona Public Service v. EPA. All of the remaining provisions of
the FIP remain in place and effective.
II. Statutory and Executive Order Reviews
This action stays a federal control measure and imposes no
additional requirements.
This rule is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), and
therefore is not subject to review under the EO.
This action is not subject to Executive Order 13211, ``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.
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.
This rule 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. 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 the
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
This rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000). 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. Thus, Executive Order 13175 does not
apply to this action.
This action 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 rule is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
1985, April 23, 1997), because it has not been determined to be
economically significant as defined under Executive Order 12866 and
because it does not establish an environmental standard intended to
mitigate health or safety risks.
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
to this rule because this action does not involve technical standards.
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction
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Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).
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 to Congress and the Comptroller
General. However, section 808 provides that any rule for which the
issuing agency for good cause finds that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest, shall take effect at such time as the agency promulgating the
rule determines. 5 U.S.C. 808(2). EPA has made such a good cause
finding, including the reasons therefore, and established an effective
date of November 13, 2008. 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 rule is not a ``major rule'' as defined by 5 U.S.C.
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. Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
rule for the purpose of judicial review nor does it extend the time
within which petitions 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 49
Environmental protection, Administrative practice and procedure,
Air pollution control, Indians, Intergovernmental relations, Reporting
and recordkeeping requirements.
Dated: November 5, 2008.
Stephen L. Johnson,
Administrator.
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40 CFR Part 49 is amended as follows:
PART 49--[AMENDED]
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1. The authority citation for part 49 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Sec. 49.23 [Amended]
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2. In Sec. 49.23, paragraph (d)(3) is stayed until further notice.
[FR Doc. E8-26842 Filed 11-12-08; 8:45 am]
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