[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

[[Page 28664]]

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