[Federal Register Volume 77, Number 206 (Wednesday, October 24, 2012)]
[Rules and Regulations]
[Pages 64908-64911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26089]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2010-0846; FRL-9743-8]
Extension of Administrative Stay; 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 extending for an additional 45 days the existing
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). EPA previously
stayed this rule for 90 days, from July 16, 2012 until October 15,
2012. This action extends the existing administrative stay by an
additional 45 days to allow for additional time for further discussions
of alternatives to EPA's Federal Implementation Plan (FIP). Today's
action reflects this stay in the Code of Federal Regulations.
DATES: 40 CFR 52.1628 is stayed from October 15, 2012 until November
29, 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://
[[Page 64909]]
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 CAA 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.'' In
response to these requests, EPA stayed the effectiveness of its rule
for 90 days. 77 FR 41697 (July 16, 2012). This temporary stay is set to
expire on October 15, 2012.
We now believe that additional time is warranted so that the State
of New Mexico can provide additional information required for EPA to
consider the state's alternative and for further discussions among the
stakeholders. The extension of time will allow EPA, the State of New
Mexico and stakeholders to discuss New Mexico's new plan proposal, or
additional ideas that could prove beneficial in creating a state plan
that would ultimately satisfy the requirements of the CAA.
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 extends the
existing administrative stay of the effectiveness of the NM FIP Rule
for a period of an additional 45 days beyond the current expiration
date of October 15, 2012. By this action, we are extending the
administrative stay of 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 an additional 45 days, which
will expire on November 29, 2012. This action adds a note to 40 CFR
52.1628 that there is a 135 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 135 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
an additional 45-day stay of the rule's effectiveness. Our extension of
the temporary stay of the effectiveness of the NM FIP Rule applies only
to any requirements established in 40 CFR 52.1628 during the duration
of the stay, as described previously in the initial 90-day stay.
B. Basis for Making This Action Effective October 15, 2012
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, this action extends the
stay that is already in effect, 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 extend the current administrative stay of the NM
FIP for an additional 45 days and imposes no additional requirements.
This type of action is exempt from review under Executive Orders 12866
(58 FR 51735,
[[Page 64910]]
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 will
extend the current administrative stay of the NM FIP for an additional
45 days and imposes no additional 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 is an
extension to stay 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 extension of a 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 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 extension of a 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.
[[Page 64911]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
This extension of a 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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide, Visibility, Interstate transport of pollution, Regional haze,
Best available control technology.
Dated: October 12, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012-26089 Filed 10-23-12; 8:45 am]
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