[Federal Register: May 1, 2008 (Volume 73, Number 85)]
[Rules and Regulations]
[Page 23959-23961]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01my08-8]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2008-0314; FRL-8559-9]
Extension of Deadline for Action on Section 126 Petition From
Warrick County, IN, and the Town of Newburgh, IN
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is extending by 6 months the deadline for EPA to take
action on a petition submitted by Warrick County, Indiana and the Town
of Newburgh, Indiana under section 126 of the Clean Air Act (CAA). The
petition requests that EPA make a finding that a power plant (Cash
Creek) proposed to be built in Henderson County, Kentucky will emit air
pollutants that will significantly contribute to Warrick County and
Newburgh, Indiana's nonattainment with the national ambient air quality
standards (NAAQS) for ozone and fine particulate matter, or will
significantly interfere with Warrick County and Newburgh, Indiana's
ability to maintain its attainment of those standards. The petition
requests that EPA establish emission limitations for the proposed power
plant as a result of those findings. Under the CAA, EPA is authorized
to grant a time extension for responding to the petition if EPA
determines that the extension is necessary, among other things, to meet
the purposes of the CAA's rulemaking requirements. By this action, EPA
is making that determination.
DATES: This action is effective on April 24, 2008.
ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID number EPA-HQ-OAR-2008-0314. All documents in the docket are
listed in the http://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., confidential
business information 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. Publicly available docket materials are available
either electronically in http://www.regulations.gov or in hard copy at
the EPA Docket Center EPA/DC, EPA West, Room 3334, 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 Docket Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For general information and policy
questions, contact Carla Oldham, Air Quality Planning Division, Office
of Air Quality Planning and Standards, mail code C539-04, Environmental
Protection Agency, Research Triangle Park, North Carolina 27711;
telephone number: 919-541-3347; fax number: 919-541-0824; e-mail
address: oldham.carla@epa.gov. For legal questions contact Steven
Silverman, U.S. EPA, Office of General Counsel, Mail Code 2344A, 1200
Pennsylvania Avenue, NW., Washington, DC 20460, telephone (202) 564-
5523, e-mail at silverman.steven@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
This is a procedural action to extend the deadline for EPA to
respond to a petition from Warrick County, Indiana and the Town of
Newburgh, Indiana filed under CAA section 126. EPA received the section
126 petition on March 6, 2008. The petition requests that EPA make a
finding that the Cash Creek power plant proposed to be built in
Henderson County, Kentucky will emit air pollutants that will
significantly contribute to Warrick County and Newburgh, Indiana's
nonattainment with the NAAQS for ozone and fine particulate matter or
will significantly interfere with Warrick County and Newburgh,
Indiana's ability to maintain its attainment of those standards. The
petition requests that EPA establish emission limitations for the
proposed power plant as a result of those findings.
Section 126(b) authorizes States or political subdivisions to
petition EPA to find that a major source or group of stationary sources
in upwind states emits or would emit any air pollutant in violation of
the prohibition of section 110(a)(2)(D), by contributing significantly
to nonattainment or maintenance problems in downwind states. If EPA
makes such a finding, EPA is authorized to establish Federal emissions
limits for the sources which so contribute.
Under section 126(b), EPA must make the finding requested in the
petition, or must deny the petition, within 60 days of its receipt.
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. EPA(s action under section 126 is also
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:
[[Page 23960]]
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.
II. Final Action
A. Rule
In accordance with section 307(d)(10), EPA is determining that the
60-day period afforded by section 126(b) for responding to the petition
from Warrick County, Indiana and the Town of Newburgh, Indiana is not
adequate to allow the public and the Agency adequate opportunity to
carry out the purposes of section 307(d). Specifically, the 60-day
period is insufficient for EPA to develop an adequate proposal on
whether the source identified in the section 126 petition will
contribute significantly to nonattainment or maintenance problems in
Warrick County or the Town of Newburgh, and, if so, to allow adequate
time for public input into the promulgation of any controls to address
those significant contributions.
EPA is in the process of determining what would be an appropriate
schedule for action on the section 126 petition from Warrick County,
Indiana and the Town of Newburgh, Indiana. This schedule must afford
EPA adequate time to prepare a proposal that clearly elucidates the
issues to facilitate public comment and must provide adequate time for
the public to comment prior to issuing the final rule.
As a result of this extension, the deadline for EPA to act on the
petition is November 5, 2008.
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 otherwise would require notice and opportunity
for public comment, there is good cause within the meaning of 5 U.S.C.
553(b)(3)(B) not to apply those requirements here. 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
substantive review of the section 126 petition.
C. Effective Date Under the APA
This action is effective on April 24, 2008. Under the APA, 5 U.S.C.
553(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. This action--a deadline
extension--must take effect immediately because its purpose is to
extend by 6 months the deadline for action on the petition. It is
important for this deadline extension action to be effective before the
original 60-day period for action elapses. As discussed above, EPA
intends to use the 6-month extension period to develop a proposal on
the petition and provide time for public comment before issuing the
final rule. These reasons support an immediate effective date.
III. 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 EO.
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(b). This action does not create new
requirements and is not subject to the Paperwork Reduction Act.
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 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
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 one year.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The rule imposes no enforceable duty
on any State, local or tribal governments or the private sector. EPA
has determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments. This rule
simply extends the deadline for EPA to take action on a petition.
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.''
This action 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 various levels of government, as specified
in Executive Order 13132. It imposes no regulatory burdens. Thus, the
requirements of section 6 of the Executive Order do not apply to this
action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with
[[Page 23961]]
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 regulatory policies
that have Tribal implications. This rule does not have tribal
implications, as specified in Executive Order 13175. Thus Executive
Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the
Executive Order had the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks. This rule 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. This action does not establish any new
regulatory requirements.
I. National Technology Transfer and 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. NTTAA directs EPA to
provide Congress through OMB, explanations when the Agency decides not
to use available and applicably voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898--Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (February 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 its programs,
policies, and activities on minorities and low-income populations in
the United States.
The EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This rule simply extends the deadline for EPA to take
action on a petition and does not impose any regulatory requirements.
K. 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 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 therefore, and established an effective date of April 24,
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. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).
L. 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 this action must
be filed in the Court of Appeals for the District of Columbia Circuit
within 60 days of May 1, 2008.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Electric utilities, Intergovernmental relations,
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur dioxide.
Dated: April 24, 2008.
Stephen L. Johnson,
Administrator.
[FR Doc. E8-9485 Filed 4-30-08; 8:45 am]
BILLING CODE 6560-50-P