[Federal Register Volume 76, Number 96 (Wednesday, May 18, 2011)]
[Rules and Regulations]
[Pages 28662-28664]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12308]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 60 and 63
[EPA-HQ-OAR-2002-0058; EPA-HQ-2003-0119; FRL-9308-6]
RIN 2060-AQ25; 2060-AO12
Industrial, Commercial, and Institutional Boilers and Process
Heaters and Commercial and Industrial Solid Waste Incineration Units
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rules; Delay of effective dates.
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SUMMARY: The EPA is delaying the effective dates for the final rules
titled ``National Emission Standards for Hazardous Air Pollutants for
Major Sources: Industrial, Commercial, and Institutional Boilers and
Process Heaters'' and ``Standards of Performance for New Sources and
Emission Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration Units'' under the authority of the
Administrative Procedure Act (APA) until the proceedings for judicial
review of these rules are completed or the EPA completes its
reconsideration of the rules, whichever is earlier.
DATES: The effective dates of the final rules published in the Federal
Register on March 21, 2011 (76 FR 15608 and 76 FR 15704), are delayed
until such time as judicial review is no longer pending or until the
EPA completes its reconsideration of the rules, whichever is earlier.
The Director of the Federal Register has reviewed certain
[[Page 28663]]
publications listed in these final rules for incorporation by reference
approval. That approval is delayed until such time as the proceedings
for judicial review of these rules are completed or the EPA completes
its reconsideration of the rules, whichever is earlier. The EPA will
publish in the Federal Register announcing the effective dates and the
incorporation by reference approvals once delay is no longer necessary.
ADDRESSES: Docket: The final rules, the petitions for reconsideration,
and all other documents in the record for the rulemakings are in Docket
ID. No. EPA-HQ-OAR-2002-0058 and EPA-HQ-OAR-2003-0119. All documents in
the dockets 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, 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's Docket
Center, Public Reading Room, EPA West Building, Room 3334, 1301
Constitution Avenue, NW., Washington, DC 20004. This Docket Facility 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 Docket is (202)
566-1741.
FOR FURTHER INFORMATION CONTACT: ``National Emission Standards for
Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters'': Mr. Brian Shrager, Energy
Strategies Group, Sector Policies and Programs Division, Office of Air
Quality Planning and Standards (D243-01), U.S. Environmental Protection
Agency, Research Triangle Park, NC 27711, telephone (919) 541-7689, fax
number (919) 541-5450, e-mail address: shrager.brian@epa.gov.
``Standards of Performance for New Sources and Emission Guidelines for
Existing Sources: Commercial and Industrial Solid Waste Incineration
Units'': Ms. Toni Jones, Fuels and Incineration Group, Sector Policies
and Programs Division, Office of Air Quality Planning and Standards
(E143-03), U.S. Environmental Protection Agency, Research Triangle
Park, NC 27711, telephone (919) 541-0316, fax number (919) 541-3470, e-
mail address: jones.toni@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 21, 2011, the EPA issued a final rule to regulate
emissions of hazardous air pollutants (HAP) from industrial,
commercial, and institutional boilers and process heaters located at
major sources of HAP emissions (the ``Major Source Boiler MACT''). On
the same date, the EPA issued a final rule to regulate emissions of
certain air pollutants from commercial and industrial solid waste
incineration units (the ``CISWI Rule''). For further information on the
Major Source Boiler MACT, see 76 FR 15608 (March 21, 2011). For further
information on the CISWI Rule, see 76 FR 15704 (March 21, 2011). In the
March 21 notices, the EPA established an effective date of May 20,
2011, for each rule.
On the same day the rules were issued, the EPA also published a
notice explaining that the Agency was in the process of developing a
notice proposing reconsideration of certain aspects of both rules. 76
FR 15267. In that notice, the EPA explained that the proposed
reconsideration would address issues on which the EPA believes further
opportunity for public comment is appropriate, as well as any
provisions of the rules that the EPA believes warrant modification
after further consideration of the data and comments already received.
The EPA has received petitions from a number of interested parties
seeking reconsideration of both rules. The petitions identify specific
issues that the EPA is being asked to reconsider. The EPA intends to
initiate a reconsideration process for both rules, as explained above.
The EPA will issue a notice of proposed reconsideration of each rule
that identifies the specific issue or issues raised in the petitions on
which the Agency is granting reconsideration. The EPA understands that
members of the public may wish to submit additional data and
information to inform the EPA's proposed reconsideration, and the
Agency will consider any additional information submitted in time to do
so. Given the anticipated schedule for the reconsideration process, we
request that any additional data and information be provided to the EPA
by July 15, 2011, to allow the Agency to fully consider it.
The EPA has also received petitions for judicial review of the
Major Source Boiler MACT from the United States Sugar Corporation as
well as from a coalition of industry groups. The EPA has received a
petition for judicial review of the CISWI Rule from a coalition of
industry groups as well. Under section 705 of the APA, ``an agency * *
* may postpone the effective date of [an] action taken by it pending
judicial review.'' The provision requires that the Agency find that
justice requires postponing the action, that the action has not gone
into effect, and that litigation is pending. As described above,
neither the Major Source Boiler MACT nor the CISWI Rule has gone into
effect and petitions for judicial review of both rules have been filed.
We find that justice requires postponing the effectiveness of these
rules. As explained in the March 21, 2011, notice, EPA has identified
several issues in the final rules which it intends to reconsider
because we believe the public did not have a sufficient opportunity to
comment on certain revisions EPA made to the proposed rules. These
issues include revisions to the proposed subcategories and revisions to
some of the proposed emissions limits. In addition, EPA received data
before finalizing both rules but was unable to incorporate that data
into the final rules given the court deadline for issuing the rules,
which the Agency was unable to extend. EPA also notes thousands of
facilities across multiple, diverse industries will need to begin to
make major compliance investments soon, in light of the pressing
compliance deadlines. These investments may not be reversible if the
standards are in fact revised following reconsideration and full
evaluation of all relevant data.
Finally, the EPA notes that it is delaying the effective date of
the Major Source Boiler MACT and the CISWI Rule pursuant to the APA,
rather than section 307(d)(7)(B) of the Clean Air Act. As explained
above, the APA authorizes the EPA to find that justice requires
postponing the effective date of a rule when litigation is pending. In
contrast, the Clean Air Act authorizes the EPA to stay the
effectiveness of a rule for three months if the Administrator has
convened a proceeding to reconsider the rule. The EPA further notes
that section 307(d) of the Act expressly states that it is intended to
replace only sections 553-557 of the APA (except as otherwise provided
in section 307(d)), and does not state that it replaces section 705 of
the APA. Therefore, the EPA has the discretion to decide whether it is
appropriate to delay the effective date of a rule under either
provision, based on the specific facts and circumstances before the
Agency. Since petitions for judicial review of both the Major Source
Boiler MACT and the CISWI Rule have been filed, and, as explained
above, justice requires a delay of the effective
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dates, it is reasonable for the EPA to exercise its authority to delay
the effective dates of the Major Source Boiler MACT and the CISWI Rule
under the APA for a period that exceeds three months.
II. Issuance of a Stay and Delay of Effective Date
Pursuant to section 705 of the APA, the EPA hereby postpones the
effectiveness of the Major Source Boiler MACT and the CISWI Rule until
the proceedings for judicial review of these rules are complete or the
EPA completes its reconsideration of the rules, whichever is earlier.
By this action, we are delaying the effective date of both rules,
published in the Federal Register on March 21, 2011 (76 FR 15608 and 76
FR 15704). The delay of the effective date of the CISWI Rule applies
only to those provisions issued on March 21, 2011, and not to any
provisions of 40 CFR part 60, subparts CCCC and DDDD, in place prior to
that date. This delay of effectiveness will remain in place until the
proceedings for judicial review are completed or the EPA completes its
reconsideration of the rules, whichever is earlier, and the Agency
publishes a notice in the Federal Register announcing that the rules
are in effect.
List of Subjects
40 CFR Part 60
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements.
40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements.
For the reasons set forth above, under the authority at 7 U.S.C.
705, the effective dates of FRL 9272-8, 76 FR 15608 (March 21, 2011),
and FRL 9273-4, 76 FR 15704 (March 21, 2011) are delayed until further
notice.
Dated: May 16, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011-12308 Filed 5-17-11; 8:45 am]
BILLING CODE 6560-50-P