[Federal Register Volume 75, Number 132 (Monday, July 12, 2010)]
[Rules and Regulations]
[Pages 39633-39635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16890]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2010-0473; FRL-9174-5]
Extension of Deadline for Action on Section 126 Petition From New
Jersey
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is extending by 6 months the deadline for EPA to take
action on a petition submitted by the New Jersey Department of
Environmental Protection (NJDEP). The petition requests that EPA make a
finding under the Clean Air Act (CAA) that the coal-fired Portland
Generating Station in Upper Mount Bethel Township, Northampton County,
Pennsylvania, is emitting air pollutants in violation of the provisions
of the CAA. 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: The effective date of this action is July 12, 2010.
ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID number EPA-HQ-OAR-2010-0473. 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: General questions concerning this
final rule should be addressed to Ms. Gobeail McKinley, Office of Air
Quality Planning and Standards, Geographic Strategies Group, Mail Code
C539-04, Research Triangle Park, NC 27711; telephone (919) 541-5246; e-
mail address: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Final Action
A. Rule
B. Notice-and-Comment Under the Administrative Procedures Act
(APA)
C. Effective Date Under the APA
III. 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 Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
I. Background
This is a procedural action to extend the deadline for EPA to
respond to a petition from New Jersey filed under CAA section 126. EPA
received the section 126 petition on May 13, 2010. The petition
requests that EPA make a finding that the coal-fired Portland
Generating Station (Portland Plant) in Upper Mount Bethel Township,
Northampton County, Pennsylvania, is emitting air pollutants in
violation of the provisions of section 110(a)(2)(D)(i) of the CAA. That
section provides that each state's State Implementation Plan (SIP)
shall contain adequate provisions prohibiting emissions of any air
pollutant in amounts which will contribute significantly to
nonattainment in, or interfere with maintenance by, any other state
with respect to any national ambient air quality standard (NAAQS). The
petition asserts that emissions from the Portland Plant have a
significant impact on New Jersey's air quality and that this impact
would be mitigated by further regulation of fine particulate matter and
sulfur dioxide emissions from this plant. 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 three months of the
finding, except that the source may continue to operate if it complies
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:
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 six 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
[[Page 39634]]
responding to the petition from the NJDEP is not adequate to allow the
public and the Agency the opportunity to carry out the purposes of
section 307(b). Specifically, the 60-day period is insufficient for EPA
to complete the necessary technical review, develop an adequate
proposal and allow time for notice and comment on whether the Portland
Plant identified in the section 126 petition contributes significantly
to nonattainment or maintenance problems in New Jersey. EPA has
reviewed the petition and supporting technical information provided by
NJDEP, and has scheduled a meeting with NJDEP officials to further
understand the technical information. Additional time is required to
afford EPA adequate time to further review and evaluate the basis for
the petition, prepare a proposal that clearly elucidates the issues to
facilitate public comment, and 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 January 12, 2011.
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 July 12, 2010. 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. It would not be possible for EPA to complete the required
notice-and-comment and public hearing process within the original 60-
day period noted in the statute. 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 by the Office of Management and Budget
under the Executive Order.
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 simply extends the date
for EPA to take action on a petition and does not impose any new
obligations or enforceable duties on any state, local or tribal
governments or the private sector. Therefore, it does not impose an
information collection burden.
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
This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (URMA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. This action imposes no enforceable duty on any state, local, or
tribal governments or the private sector.
This action simply extends the deadline for EPA to take action on a
petition and does not impose any new obligations or enforceable duties
on any state, local or tribal governments or the private sector.
Therefore, this action is not subject to the requirements of sections
202 and 205 of the UMRA. This action is also not subject to the
requirements of section 203 of URMA because it contains no regulatory
requirements that might significantly or uniquely affect small
governments. This action simply extends the date for EPA to take action
on a petition and does not impose any new obligations or enforceable
duties on any 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.''
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 the various levels of government, as
specified in Executive Order 13132. This rule simply extends the date
for EPA to take action on a petition and does not impose any new
obligations or enforceable duties on any state, local or tribal
governments or the private sector. Thus, Executive Order 13132 does not
apply to this rule.
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). 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.
This action does not significantly or uniquely affect the communities
of Indian tribal governments. As discussed
[[Page 39635]]
above, this 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 Risks and Safety Risks
This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because the Agency does not believe the environmental
health risks or safety risks addressed by this action present a
disproportionate risk to children. 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 Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that this
rule is not likely to have any adverse effects because this action
simply extends the deadline for EPA to take action on a petition.
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 applicable 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 (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 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 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 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).
L. Judicial Review
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 September 10, 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. 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 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Electric utilities, Intergovernmental relations,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide.
Dated: July 2, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-16890 Filed 7-9-10; 8:45 am]
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