[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Rules and Regulations]
[Pages 41697-41699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16952]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2010-0846; FRL-9698-3]
Stay of the Effectiveness of Requirements; Approval and
Promulgation of Implementation Plans; New Mexico; Federal
Implementation Plan for Interstate Transport of Pollution Affecting
Visibility and Best Available Retrofit Technology Determination
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is granting an administrative stay of the final rule
titled ``Approval and Promulgation of Implementation Plans; New Mexico;
Federal Implementation Plan for Interstate Transport of Pollution
Affecting Visibility and Best Available Retrofit Technology
Determination'' under the authority of the Administrative Procedure Act
(APA) for 90 days. Today's action reflects this stay in the Code of
Federal Regulations.
DATES: Effective July 16, 2012. 40 CFR 52.1628 is stayed until October
15, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2010-0846. All documents in the docket are listed in
the Federal eRulemaking portal index at http://www.regulations.gov and
are available either electronically at http://www.regulations.gov or in
hard copy at EPA Region 6, 1445 Ross Ave., Dallas, TX, 75202-2733. To
inspect the hard copy materials, please schedule an appointment during
normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section. A reasonable fee may be charged for
copies.
FOR FURTHER INFORMATION CONTACT: Agustin Carbo-Lugo, EPA Region 6,
(214) 665-8037, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' ``our,'' or ``the Agency'' is used, we mean the EPA. Unless
otherwise specified, when we say the ``San Juan Generating Station,''
or ``SJGS,'' we mean units 1, 2, 3, and 4, inclusive.
I. Background
On August 22, 2011, the EPA published a final rule disapproving a
portion of the State Implementation Plan (SIP) revision received from
the State of New Mexico on September 17, 2007, for the purpose of
addressing the ``good neighbor'' requirements of section
110(a)(2)(D)(i) of the Clean Air Act (CAA or Act) for the 1997 8-hour
ozone National Ambient Air Quality Standards (NAAQS or standards) and
the 1997 fine particulate matter (PM2.5) NAAQS (the ``NM FIP
Rule'', 76 FR 52388). In that action, EPA disapproved the New Mexico
Interstate Transport SIP provisions that address the requirement of
section 110(a)(2)(D)(i)(II) that emissions from New Mexico sources do
not interfere with measures required in the SIP of any other state
under part C of the CAA to protect visibility. We found that New Mexico
sources, except the San Juan Generating Station (SJGS), were
sufficiently controlled to eliminate interference from those sources
with the visibility programs of other states. EPA promulgated a Federal
Implementation Plan (FIP) requiring the implementation of nitrogen
oxides (NOX) and sulfur dioxide (SO2) emission
limits necessary at the San Juan Generating Station to prevent such
interference. This FIP also addresses the Regional Haze (RH) Best
Available Retrofit Technology (BART) requirement for NOX for
SJGS. In addition, EPA implemented sulfuric acid
(H2SO4) hourly emission limits at the SJGS, to
minimize the contribution of this compound to visibility impairment.
Finally, we found that compliance with the NOX,
SO2, and H2SO4 emission limits must be
within 5 years of the effective date of our final rule consistent with
the requirements of the regional haze regulations.
Petitions for judicial review of the final rule were subsequently
filed in the United States Court of Appeals for the Tenth Circuit. The
petitioners bringing those challenges are WildEarth Guardians, Public
Service of New Mexico (PNM), and New Mexico Governor Susana Martinez
with the New Mexico Environment Department.
By a letter to the EPA Administrator, dated April 26, 2012, the
Governor of New Mexico requested ``a short term (90-day) stay'' of the
federal implementation plan to evaluate the potential for alternatives
to the rule requirements. She presents a stay as being necessary for
``meaningful, productive negotiations'' that may lead to an avoidance
of litigation. By a letter to the acting Regional Administrator of EPA
Region 6, dated May 8, 2012, PNM also requested ``an opportunity to
engage in productive discussions as proposed by Governor Martinez.''
We support discussions of any alternatives to the federal
implementation plan that would be consistent with regional haze rule
requirements and the requirements of section 110(a)(2)(D)(i)(II) of the
CAA. If such an alternative arises through discussions with the State
of New Mexico, as well as other stakeholders, it may provide a basis
for submittal by the state of a revised SIP, withdrawal of the FIP, and
the resolution of pending litigation.
II. Today's Final Rule
A. Issuance of a Stay and Delay of the Effectiveness of the NM FIP Rule
Pursuant to section 705 of the APA, the EPA hereby stays the
effectiveness of the NM FIP Rule for a period of 90 days from the date
of publication of this Federal Register notice. By this action, we are
staying the effectiveness of the rule published in the Federal Register
on August 22, 2011 (76 FR 52388). This stay of effectiveness will
remain in place for 90 days from today. This action adds a note to 40
CFR 52.1628 that there is a 90 day stay of the effectiveness of the NM
FIP Rule, but, in its substance, it does not alter any future
compliance requirements. There are no compliance obligations under the
terms of the NM FIP that arise during the 90 day period.
Under section 705 of the APA, ``an agency * * * may postpone the
effective date of [an] action taken by it pending judicial review.''
This source of authority requires an Agency finding that ``justice
requires'' a temporary stay of rule requirements. Accordingly, as
groundwork for the mentioned discussions among the Agency, the State of
New Mexico, and other stakeholders, EPA now finds that justice requires
a 90-day stay of the rule's effectiveness. Our temporary stay of the
effectiveness of the NM FIP Rule applies only to any requirements
established in 40 CFR 52.1628 during the 90-day stay and does not
extend the ultimate compliance timeframe set out in the rule, which is
a statutory requirement under CAA section 169A(b)(2)(A). Nevertheless,
EPA intends to undertake a future rulemaking to either: (1) Extend the
compliance time for the NM FIP to accommodate the stay; or (2) account
for an alternative proposal. If the
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discussions of new alternatives lead to an additional regulatory
proposal, the public would have the opportunity to evaluate and comment
on such new proposal through EPA's rulemaking process.
B. Basis for Making This Action Effective on the Date of Publication
The EPA also believes that there is good cause to make today's
action effective immediately, rather than effective within 30 days,
within the meaning of 5 U.S.C. 553(d)(3). One purpose of the 30-day
waiting period prescribed in 5 U.S.C. 553(d) is to give affected
parties a reasonable time to adjust their behavior and prepare before
the final action takes effect. Whereas here, the affected parties are
anticipating this action and requesting the flexibility it provides,
and any delay in its effectiveness will result in unnecessary delays
for productive negotiations. Therefore, balancing the necessity for
immediate implementation against principles of fundamental fairness,
which require that all affected persons be afforded a reasonable amount
of time to prepare for the effective date of this action, EPA has
determined that it is unnecessary, impracticable and contrary to the
public interest to delay this action. Additionally, since this action
does not ``implement, interpret, or prescribe law or policy,'' within
the meaning of 5 U.S.C. 551(4), nor makes changes to substantive
requirements, EPA concludes that it does not constitute a substantive
rulemaking. Therefore, it is not subject to notice and comment
requirements.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review 13563
This action will stay the effectiveness of the NM FIP for 90 days
and imposes no additional requirements. This type of action is exempt
from review under Executive Orders 12866 (58 FR 51735, October 4, 1993)
and 13563 (76 FR 3821, January 21, 2011).
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.
Under the Paperwork Reduction Act, a ``collection of information'' is
defined as a requirement for ``answers to * * * identical reporting or
recordkeeping requirements imposed on ten or more persons * * *'' 44
U.S.C. 3502(3)(A). Because the temporary stay is for the effectiveness
of a rule that applies to a single facility, (SJGS), the Paperwork
Reduction Act does not apply. See 5 CFR part 1320(c).
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for our
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
This action 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 action is not subject to notice and comment
requirements under the APA or any other statute because, although
subject to the APA, this action does not ``implement, interpret, or
prescribe law or policy,'' within the meaning of APA Sec. 551(4).
D. Unfunded Mandates Reform Act (UMRA)
This action 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. EPA has determined that this temporary stay does not contain a
Federal mandate that may result in expenditures that exceed the
inflation-adjusted UMRA threshold of $100 million by State, local, or
Tribal governments or the private sector in any 1-year. 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 UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action stays
the effectiveness of the NM FIP for 90 days and imposes no additional
regulatory requirements.
E. Executive Order 13132: Federalism
This temporary stay 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 action merely temporarily
stays the effectiveness of a final rule. Thus, Executive Order 13132
does not apply to this action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
EPA will consult and coordinate with Tribes regarding BART
alternatives during the stay, however, this temporary stay does not
have tribal implications as specified by Executive Order 13175 (65 FR
67249, November 9, 2000), because it neither imposes substantial direct
compliance costs on tribal governments, nor preempts tribal law.
Furthermore, this action does not ``implement, interpret, or prescribe
law or policy,'' within the meaning of 5 U.S.C. 551(4), and therefore,
it does not constitute a substantive rulemaking. As such, this action
only grants a 90-day stay of the effectiveness of the NM FIP Rule
without altering any future established compliance requirements.
Therefore, the requirements of section 5(b) and 5(c) of the Executive
Order do not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This temporary stay is not subject to Executive Order 13045 because
it is not a rule of general applicability, it is not economically
significant as defined under Executive Order 12866, and does not have a
disproportionate effect on children.
Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) Is determined to be economically significant as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that
[[Page 41699]]
EPA has reason to believe may have a disproportionate effect on
children. If the regulatory action meets both criteria, the Agency must
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This temporary stay is not subject to the National Technology
Transfer and Advancement Act of 1995 (``NTTAA''). Section 12(d) of the
NTTAA, Public Law 104-113, 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
This temporary stay is not subject to Executive Order 12898.
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 their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this action will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
change the substance of 40 CFR 52.1628.
K. Congressional Review Act
This action is not subject to the Congressional Review Act
(``CRA''). The 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. The Section 804(3) of the CRA defines ``rule'' as having
the same meaning given to such term in section 551 of the APA. See 5
U.S.C. 551(4). Since this action is not designed to implement,
interpret, or prescribe law or policy, within the meaning of APA, this
action is exempted from the reporting requirements of the CRA.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Best available
control technology, Incorporation by reference, Intergovernmental
relations, Interstate transport of pollution, Nitrogen dioxide, Ozone,
Particulate matter, Regional haze, Reporting and recordkeeping
requirements, Sulfur dioxide, Visibility.
Dated: July 2, 2012.
Lisa P. Jackson,
Administrator.
Title 40, chapter I, of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
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2. Effective July 16, 2012, 40 CFR 52.1628 is stayed until October 15,
2012.
[FR Doc. 2012-16952 Filed 7-13-12; 8:45 am]
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