[Federal Register Volume 77, Number 220 (Wednesday, November 14, 2012)]
[Rules and Regulations]
[Pages 67767-67771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27564]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2010-1078; FRL-9751-3]
Revision to the South Coast Portion of the California State
Implementation Plan, CPV Sentinel Energy Project AB 1318 Tracking
System
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve a source-specific State Implementation Plan (SIP)
revision for the South Coast Air Quality Management District
(``SCAQMD'' or ``District'') portion of the California SIP. This
source-specific SIP revision is known as the CPV Sentinel Energy
Project AB 1318 Tracking System (``AB 1318 Tracking System''). The SIP
revision consists of enabling language and the AB 1318 Tracking System
to revise the District's SIP approved new source review (NSR) program.
The SIP revision allows the District to transfer offsetting emission
reductions for particulate matter less than 10 microns in diameter
(PM10) and one of its precursors, sulfur oxides
(SOX), to the CPV Sentinel Energy Project (``Sentinel''),
which will be a natural gas fired power plant.
DATES: This final rule is effective on November 14, 2012.
ADDRESSES: The index to the docket for this final action is available
electronically at www.regulations.gov and in hard copy at EPA Region
IX, 75 Hawthorne Street, San Francisco, California. While generally all
categories of documents in the docket are listed in the index, some
information may be publicly available only at the hard copy location
(e.g., voluminous documents, copyrighted material), and some may not be
publicly available in either location (e.g., CBI). 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.
FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, (415)
972-3524, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we'', ``us'',
and ``our'' refer to EPA.
Table of Contents
I. Background
A. The Facility and Prior Actions
B. Description of Final Rule
II. Evaluation of Source-Specific SIP Revision
A. What action is EPA finalizing?
B. Public Comment and Final Action
III. EPA Action
IV. Statutory and Executive Order Reviews
I. Background
A. The Facility and Prior Actions
The Sentinel Energy Project is designed to be a nominally rated 850
megawatt, natural gas-fired electrical generating facility covering
approximately 37 acres within Riverside County, adjacent to Desert Hot
Springs in the Palm Springs, California area. EPA's Federal Register
notices for the January 13, 2011 proposal (76 FR 2294), April 20, 2011
final action (76 FR 22038), and August 23, 2012 supplemental proposal
for this action (77 FR 50973) contain a detailed description of the
project and the Clean Air Act's (CAA) requirements for offsets during
new source review permitting.
In response to our January 13, 2011 proposed rule, we received four
comments. We responded to those comments on April 20, 2011 (76 FR
22038). One commenter, jointly California Communities Against Toxics
and Communities for a Better Environment (jointly ``CCAT'') filed a
Petition for judicial review in the United States Court of Appeals for
the Ninth Circuit (``9th Circuit'') shortly thereafter and an Opening
Brief on July 26, 2011. On September 14, 2011, EPA requested the 9th
Circuit to remand the
[[Page 67768]]
final rule to us to correct minor errors and revise our reasoning on
one issue. Motion for a Voluntary Remand of the Record, to Vacate the
Briefing Schedule, and to Stay the Proceedings During Remand, Case No.
11-71127 (Sept. 14, 2011). CCAT opposed EPA's motion for voluntary
remand. The 9th Circuit Appellate Commissioner denied EPA's motion for
voluntary remand on November 7, 2011, and ordered briefing. After
briefing and oral argument, the 9th Circuit remanded the final rule
(without vacatur) to EPA on July 26, 2012. California Communities
Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012). EPA published a
supplemental proposal on August 23, 2012, (77 FR 50973) and took
comment on the supplemental proposal through September 24, 2012. Copies
of the comments on the supplemental proposal have been added to the
docket and are accessible at www.regulations.gov. Comment letters from
the South Coast Air Quality Management District (``SCAQMD'' or
``District'') and CPV Sentinel LLC (``Sentinel'') support EPA's
approval of the AB 1318 Tracking System as a source-specific SIP
revision. A comment letter from CCAT opposes our proposal and
supplemental proposal to approve of the source-specific SIP revision.
B. Description of Final Rule
We are finalizing our proposal and supplemental proposal to approve
the AB 1318 Tracking System into the SIP as a source-specific SIP
revision. Even with the slight revision to Attachment A discussed
below, the District transferred more offsets into the AB 1318 Tracking
System than the amount that is needed to allow Sentinel to operate. We
are finalizing our approval because the offsets listed in the Revised
Attachment A meet the federal offset integrity criteria, including
proper quantification and surplus adjustment. We are finalizing the
reasoning in our supplemental proposal for finding that the offsets
meet the requirement in 40 CFR part 51, appendix S and 40 CFR
51.165(a)(3)(ii)(C)(1)(ii) for offsets resulting from facilities or
sources shutting down to have occurred after the base-year for SIP
planning purposes. We are interpreting this provision to refer to the
2003 AQMP for PM10 for the South Coast and the Coachella
Valley Air Basins.
In response to CCAT's comments on September 24, 2012, EPA is making
a slight revision to Attachment A to the Technical Support Document for
our supplemental proposal. Attachment A contains tables showing our
evaluation of a subset of all of the facilities from which the District
transferred offsets into its AB 1318 Tracking System. In this final
rule, we are attaching a slightly revised version of Attachment A to
our Response to Comments document. The only change in the Revised
Attachment A is that we have applied a more conservative assumption of
zero emissions for the data missing for the facilities listed in
Attachment A, Section II.B. The facilities listed in Section II.B were
missing Year 2 data. Our supplemental proposal assumed that the Year 2
data would be the same as the reported Year 1 data for these offsets.
Based on comments we received from CCAT, we changed the assumption for
this group of facilities. In our Revised Attachment A, we are assuming
that Year 2 data for these facilities is zero. This change means that
we are using the most conservative approach (zero emissions) to
quantify the offsets. This revision lowers the quantity of offsets
listed in Attachment A by 306 pounds for PM10 and 2 pounds
for SOX. Even with this adjustment the quantity of offsets
listed in Revised Attachment A exceeds the quantity that Sentinel needs
for operation. Because the District is committed to retiring all of the
remaining offsets in the AB 1318 Tracking System, including those not
listed in Attachment A, the net effect will be a greater reduction in
emissions than is required by the CAA.
For additional background information, please see the January 13,
2011 notice of proposed rule for this action (76 FR 2294), the notice
of final rule (which was remanded without vacatur on July 26, 2012) (76
FR 22038 Apr. 20, 2011) and the August 23, 2012 supplemental proposal
(77 FR 50974).
II. Evaluation of Source-Specific SIP Revision
A. What action is EPA is finalizing?
EPA is finalizing our approval of a SIP revision for the South
Coast portion of the California SIP. The SIP revision is codified in 40
CFR 52.220(c)(384) and incorporates by reference the CPV Sentinel
Energy Project AB 1318 Tracking System, as adopted by the District.
The SIP revision provides a federally approved and enforceable
mechanism for the District to transfer PM10 and
SOX offsets from the District's internal bank to the AB 1318
Tracking System for use by the Sentinel Energy Project.
B. Public Comment and Final Action
Our detailed response to all significant comments is contained in
the Response to Comments (``RTC'') document in the docket for this
action. The RTC can be accessed through www.regulations.gov and a very
brief summary of our responses to certain comments is provided below.
Please refer to our RTC document for our complete response to all
comments.
Comment Letter from South Coast Air Quality Management District
Comment: The District supported EPA's proposal and supplemental
proposal to approve the AB 1318 Tracking System based on the
quantification and surplus adjustment of the offsets listed in
Attachment A to the Technical Support Document for the supplemental
proposal. The District commented that its 2003 PM10 Air
Quality Management Plan (AQMP) was the appropriate plan and attainment
demonstration to establish the base-year for SIP planning as set forth
in 40 CFR 51.165(a)(3)(ii)(C)(1)(ii). The District also commented that
growth was added to the 2007 AQMP for PM2.5.
Response: EPA agrees with the District's comments, as discussed in
the RTC document provided in the docket for this rule.
Comment Letter from Sentinel Energy LLP
Comment: Sentinel also supported EPA's proposal and supplemental
proposal to approve the SIP revision on generally the same basis as the
District.
Response: EPA agrees with Sentinel's comments, as discussed in the
RTC document provided in the docket for this rule.
Comment: On October 26, 2012, Sentinel submitted a late comment
letter in which it requested EPA to use the good cause exception set
forth in section 553(d)(3) of the Administrative Procedures Act, 5
U.S.C. 553(d)(3) to make this final rule effective immediately upon
publication in the Federal Register. Sentinel stated that the purpose
of the usual 30-day delay for rule effectiveness is to allow the
regulated entity an opportunity to make any changes necessary to be in
compliance with the rule. Sentinel stated that it has been aware of
what would be required of it as a result of this rule for 18 months.
Sentinel anticipates beginning its commission period in November 2012.
Sentinel added that if the power plant is on-line next summer, it will
help the region avoid any potential electricity shortfalls.
Response: EPA has discretion to accept late comments and will
accept the comment submitted by Sentinel. EPA agrees with Sentinel that
it has demonstrated good cause for EPA to issue this final rule with an
immediate effective date. Sentinel has been constructing the power
plant for the
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past 12 to 18 months in anticipation of beginning its commissioning
period in November 2012. Sentinel and the District provided information
regarding the potential effects of delaying commissioning and
operations beyond this date in the briefs submitted in the 9th Circuit
ligation pertaining to this rulemaking. Sentinel has indicated that it
will not be harmed by the immediate effective date. Therefore the final
rule will become effective upon publication.
Comment Letter From California Communities Against Toxics (CCAT) and
Communities for a Better Environment (CBE) (collectively CCAT)
Comment: CCAT contends that it was arbitrary and capricious for EPA
to publish a supplemental proposal to approve the source-specific SIP
revision after the 9th Circuit remanded the rulemaking to EPA without
vacatur.
Response: CCAT is incorrect. EPA has discretion under Section 553
of the Administrative Procedures Act to supplement its existing
proposed approval of the source-specific SIP revision. We provided
notice of the supplemental proposal and a 30-day period for comments.
The 9th Circuit's Opinion in California Communities Against Toxics v.
EPA, 688 F.3d at 989 did not indicate that EPA could not supplement its
prior proposal.
Comment: CCAT states: ``The Planning Year for the Failed 2003 AQMP
Cannot be the Base Year for Valid Offsets: In the Absence of an
Approved Attainment Demonstration for PM10, Only Replacement
Capacity Can offset New Emissions.''
Response: EPA disagrees. CCAT asserts that the 2003 AQMP is ``no
longer valid'' because the South Coast and Coachella Air Basins failed
to be re-designated to attainment for PM10 in 2006. Based on
this presumption, CCAT argues that the SCAQMD is prohibited from
relying on offsets resulting from sources that shut down, unless the
new source of emissions is replacement capacity for the facility or
source that is shutting down. CCAT's presumption is incorrect. Failure
to attain a National Ambient Air Quality Standard (``NAAQS'') by the
attainment date does not invalidate the plan and attainment
demonstration--in this case the 2003 PM10 AQMP. The control
measures and strategies remain in effect and enforceable along with the
emissions inventories and attainment demonstration. Therefore, there is
no prohibition on using offsets from facilities or sources that have
shut down after the 1997 base-year from the 2003 PM10 AQMP
to allow new source emissions growth in the South Coast and Coachella
Air Basins.
Comment: CCAT states: ``The 2007 AQMP Applies to PM10 as
well as PM2.5 Attainment.''
Response: EPA disagrees with CCAT. The District adopted the 2007
AQMP to demonstrate attainment with the PM2.5 NAAQS. EPA
approved the 2007 AQMP to demonstrate attainment with the
PM2.5 NAAQS. The minor references to PM10 in the
2007 AQMP for PM2.5 are included for a variety of reasons,
including to comply with California state law and to ensure continued
emissions control at one particular PM10 air quality
monitor. Minor references to PM10 for limited purposes do
not mean that the 2007 AQMP establishes a new base-year for
PM10. EPA does not consider the incidental inclusion of
PM10 control measures or updated emissions inventory for a
future maintenance plan to be the same as adopting a new AQMP for
PM10. EPA's approval of the 2007 AQMP does not mention
PM10.
Comment: CCAT states: ``The 2007 AQMP Was Final At All Relevant
Times.''
Response: Our supplemental proposal notes that the EPA had not
approved the 2007 AQMP at the time the SCAQMD approved transferring the
offsets into the AB 1318 Tracking System. EPA has not found any
authority establishing the correct date for an approved air quality
plan to apply. EPA reasonably determined that the date of transfer of
the offsets (i.e. when the offsets become enforceable) is an
appropriate date to establish what AQMP applies.
Comment: CCAT states ``EPA Cannot Rely on the Failed, Superseded
2003 AQMP for a Base Year.''
Response: CCAT appears to have raised the same argument in an
earlier portion of its comment letter. EPA considers this section to
provide additional argumentation of the same point presented in the
earlier paragraphs. EPA disagrees with CCAT's additional discussion.
CCAT has mischaracterized the Court's holding in NRDC v. EPA, 571 F.3d
1245, 1267 (D.C. Cir. 2009). The Court held that the base-year should
be established by an ``approved'' AQMP and it did not use the term
``valid.'' As discussed elsewhere, the CAA does not define air quality
plans as ``valid'' and EPA does not consider the term to be dispositive
or persuasive regarding the appropriate AQMP to establish the base-
year. CCAT also comments at length on the appropriate method for adding
new source growth in the absence of an approved attainment
demonstration. EPA considers this portion of CCAT's discussion to be
irrelevant because the 2003 PM10 AQMP is the approved
attainment demonstration for PM10 for the South Coast and
Coachella Air Basins.
Comment: CCAT states: ``The Offsets Transferred into the 1318
Tracking System are Not Quantifiable.''
Response: EPA disagrees with CCAT and is finalizing our proposal
and supplemental proposal to approve the AB 1318 Tracking System
because the District transferred more properly quantified and surplus
adjusted PM10 and SOX offsets than Sentinel needs
to offset its PM10 and SOX emissions. CCAT
contends that EPA is required to use two years of emissions data to
quantify offsets. CCAT also asserts that two years of emissions data
cannot be satisfied with a conservative (i.e. fewer offsets) assumption
being used for missing data. Nothing in the CAA or EPA's regulations
requires EPA to use two years of emissions data to quantify offsets or
prohibits the use of a conservative approach for filling in missing
data. EPA is reasonably interpreting our regulations to allow the
District to exercise discretion to use a conservative approach to
quantify offsets where emissions data is missing. Here, we have
concluded that the District's quantification of offsets using a
conservative approach--specifically, by substituting zero emissions
when data is missing--is reasonable and consistent with the CAA and
applicable regulations.
EPA is revising our final approval slightly from our supplemental
proposal to ensure that the most conservative estimation of data is
made regardless of whether the facility is missing Year 1 or Year 2
data. This means that EPA is reducing the amount of offsets we are
determining are properly quantified in Attachment A, Section II.B. to
reduce it by 306 pounds of PM10 and 2 pounds of
SOX. Therefore, whether a facility is missing Year 1 or Year
2 data, EPA is assuming the emissions for the missing data are zero.
Comment: CCAT states: ``The Offsets Are Not Surplus.''
Response: EPA disagrees. The offsets listed in Attachment A to the
TSD for the supplemental proposal are properly surplus adjusted to
comply with the CAA.
Comment: CCAT states: ``Rule 1315, Which EPA Did Not Apply,
Dictates How the Surplus Adjustment after Deposit Occurs.''
Response: EPA disagrees. The District removed the offsets in the AB
1318 Tracking System from its internal accounts and evaluated each
facility to determine if the offsets required surplus
[[Page 67770]]
adjustment. Rule 1315 requires the District to make an annual aggregate
adjustment to offsets in its Rule 1315 internal accounts. All of the
offsets in Attachment A, as revised, to the TSD for EPA's supplemental
proposal are properly quantified and surplus adjusted.
Comment: CCAT states: ``If Rule 1315 Were Not Applicable, EPA's
Analysis Is Entirely Incomplete.''
Response: EPA disagrees. Rule 1315 does not apply to this source-
specific SIP revision for the offset package for a single power plant.
All of the offsets in Revised Attachment A are properly surplus
adjusted.
III. EPA Action
This source-specific SIP revision complies with all relevant CAA
requirements and is consistent with EPA's regulations and guidance.
Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully
approving this source-specific SIP revision into the California SIP.
The changes in this final rule from EPA's proposal and supplemental
proposal are described above in Section I.B. EPA's interpretation of
the CAA and our regulations is provided more fully in our RTC.
Our initial approval of this SIP revision and its related
incorporation by reference into the Code of Federal Regulations was
previously codified at 40 CFR 52.220(c)(384). Because the SIP submittal
has not changed since the initial approval and related codification,
and because the previous final rule was not withdrawn, we are not
revising the codification of our approval at 40 CFR 52.220(c)(384) in
this final action.
This rule is effective immediately upon publication in the Federal
Register. Section 553(d) of the Administrative Procedure Act (APA), 5
U.S.C. 553(d), generally provides that rules may not take effect
earlier than 30 days after they are published in the Federal Register.
However, APA section 553(d)(3) provides an exception when the agency
finds good cause exists for a rule to take effect in less than 30-days.
The purpose of the APA's 30-day effective date provision is to give
affected parties time to adjust their behavior before the final rule
takes effect. The Sentinel Energy Project, to which this rulemaking
applies, requested in a comment letter to EPA that the rule be made
effective upon Federal Register publication.
We find good cause exists here to make this rule effective upon
publication because implementing a 30-day delayed effective date would
interfere with CPV Sentinel's ability to begin commissioning in
November 2012 as scheduled. Such interference would delay Sentinel from
becoming fully operational by the summer of 2013, which is when the
California Energy Commission is expecting the plant to come on line.
This delay could result in significant impacts to electrical
reliability and air quality.
In addition, this rule is not a major rule under the Congressional
Review Act (CRA). Thus, the 60-day delay in effective date required for
major rules under the CRA does not apply.
IV. 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 approve the source-specific SIP revision known as
the CPV Sentinel Energy Project AB 1318 Tracking System into the
California SIP. 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.
Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This rule will not have a significant impact on a substantial
number of small entities because SIP approvals under section 110 and
subchapter I, part D of the CAA do not create any new requirements but
simply approve requirements that the State is already imposing.
Therefore, because the Federal SIP approval does not create any new
requirements, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under
the CAA, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of State action. The CAA
forbids EPA to base its actions concerning SIPs on such grounds. Union
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a) (2).
D. Unfunded Mandates Reform Act
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that this final action does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This Federal action proposes to approve pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with
[[Page 67771]]
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This rule 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, because it
merely approves a State rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. 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. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it approves a
State rule implementing a Federal standard.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (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
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (EO) 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 their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. section 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 804, however, exempts from
section 801 the following types of rules: rules of particular
applicability; rules relating to agency management or personnel; and
rules of agency organization, procedure, or practice that do not
substantially affect the rights or obligations of non-agency parties. 5
U.S.C. 804(3). Because this is a rule of particular applicability, EPA
is not required to submit a rule report regarding this action under
section 801.
L. Petitions for 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 January 14, 2013. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 1, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-27564 Filed 11-13-12; 8:45 am]
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