[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Rules and Regulations]
[Pages 7695-7697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00760]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2016-0764; FRL-9958-26-OAR]
Extension of Deadline for Action on the November 28, 2016 Section
126 Petition From Delaware
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this action, the Environmental Protection Agency (EPA) is
determining that 60 days is insufficient time to complete the technical
and other analyses and public notice-and-comment process required for
our review of a petition submitted by the state of Delaware pursuant to
section 126 of the Clean Air Act (CAA). The petition requests that the
EPA make a finding that Conemaugh Generating Station, located in
Indiana County, Pennsylvania, emits air pollution that significantly
contributes to nonattainment and interferes with maintenance of the
2008 and 2015 ozone national ambient air quality standards (NAAQS) in
the state of Delaware. Under section 307(d)(10) of CAA, the EPA is
authorized to grant a time extension for responding to a petition if
the EPA determines that the extension is necessary to afford the
public, and the agency, adequate opportunity to carry out the purposes
of the section 307(d) notice-and-comment rulemaking requirements. By
this action, the EPA is making that determination. The EPA is,
therefore, extending the deadline for acting on the petition to no
later than August 3, 2017.
DATES: This final rule is effective on January 23, 2017.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2016-0764. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is
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restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Benjamin Gibson, Office of Air
Quality Planning and Standards (C545-E), U.S. EPA, Research Triangle
Park, North Carolina 27709, telephone number (919) 541-3277, email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Legal Requirements for Interstate Air Pollution
This is a procedural action to extend the deadline for the EPA to
respond to a petition from the state of Delaware filed pursuant to CAA
section 126(b). The EPA received the petition on December 5, 2016. The
petition requests that the EPA make a finding under section 126(b) of
the CAA that the Conemaugh Generating Station, located in Indiana
County, Pennsylvania, is operating in a manner that emits air
pollutants in violation of the provisions of section 110(a)(2)(D)(i) of
the CAA with respect to the 2008 and 2015 ozone NAAQS.
Section 126(b) of the CAA authorizes states to petition the EPA to
find that a major source or group of stationary sources in upwind
states emits or would emit any air pollutant in violation of the
prohibition of CAA section 110(a)(2)(D)(i) \1\ by contributing
significantly to nonattainment or maintenance problems in downwind
states. Section 110(a)(2)(D)(i)(I) of the CAA prohibits emissions of
any air pollutant in amounts which will contribute significantly to
nonattainment in, or interfere with maintenance by, any other state
with respect to any NAAQS. The petition asserts that emissions from
Conemaugh Generating Station's two electric generating units emit air
pollutants in violation of CAA section 110(a)(2)(D)(i) with respect to
the 2008 8-hour ozone NAAQS, set at 0.075 parts per million (ppm), and
the revised 2015 8-hour ozone NAAQS, set at 0.070 ppm.\2\
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\1\ The text of CAA section 126 codified in the United States
Code cross references CAA section 110(a)(2)(D)(ii) instead of CAA
section 110(a)(2)(D)(i). The courts have confirmed that this is a
scrivener's error and the correct cross reference is to CAA section
110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032,
1040-44 (D.C. Cir. 2001).
\2\ On October 1, 2015, the EPA strengthened the ground-level
ozone NAAQS, based on extensive scientific evidence about ozone's
effects on public health and welfare. See 80 FR 65291 (October 26,
2015).
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Pursuant to CAA section 126(b), the EPA must make the finding
requested in the petition, or must deny the petition within 60 days of
its receipt. Under CAA section 126(c), any existing sources for which
the EPA makes the requested finding must cease operations within 3
months of the finding, except that the source may continue to operate
if it complies with emission limitations and compliance schedules
(containing increments of progress) that the EPA may provide to bring
about compliance with the applicable requirements as expeditiously as
practical but no later than 3 years from the date of the finding.
CAA section 126(b) further provides that the EPA must hold a public
hearing on the petition. The EPA's action under CAA section 126 is also
subject to the procedural requirements of CAA section 307(d). See CAA
section 307(d)(1)(N). One of these requirements is notice-and-comment
rulemaking, under section 307(d)(3)-(6).
In addition, CAA section 307(d)(10) provides for a time extension,
under certain circumstances, for a rulemaking subject to CAA section
307(d). Specifically, CAA section 307(d)(10) provides:
Each statutory deadline for promulgation of rules to which this
subsection applies which requires promulgation less than six months
after date of proposal may be extended to not more than six months
after date of proposal by the Administrator upon a determination
that such extension is necessary to afford the public, and the
agency, adequate opportunity to carry out the purposes of the
subsection.
CAA section 307(d)(10) may be applied to CAA section 126
rulemakings because the 60-day time limit under CAA section 126(b)
necessarily limits the period for promulgation of a final rule after
proposal to less than 6 months.
II. Final Rule
A. Rule
In accordance with CAA section 307(d)(10), the EPA is determining
that the 60-day period afforded by CAA section 126(b) for responding to
the petition from the state of Delaware is not adequate to allow the
public and the agency the opportunity to carry out the purposes of CAA
section 307(d). Specifically, the 60-day period is insufficient for the
EPA to complete the necessary technical review, develop an adequate
proposal, and allow time for notice and comment, including an
opportunity for public hearing, on a proposed finding regarding whether
the Conemaugh Generating Station identified in the CAA section 126
petition contributes significantly to nonattainment or interferes with
maintenance of the 2008 ozone NAAQS or the 2015 ozone NAAQS in
Delaware. Moreover, the 60-day period is insufficient for the EPA to
review and develop response to any public comments on a proposed
finding, or testimony supplied at a public hearing, and to develop and
promulgate a final finding in response to the petition. The EPA is in
the process of determining an appropriate schedule for action on the
CAA section 126 petition. This schedule must afford the EPA adequate
time to prepare a proposal that clearly elucidates the issues to
facilitate public comment, and must provide adequate time for the
public to comment and for the EPA to review and develop responses to
those comments prior to issuing the final rule. As a result of this
extension, the deadline for the EPA to act on the petition is August 3,
2017.
B. Notice and Comment Under the Administrative Procedures Act (APA)
This document is a final agency action, but may not be subject to
the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The
EPA believes that, because of the limited time provided to make a
determination, the deadline for action on the CAA section 126 petition
should be extended. Congress may not have intended such a determination
to be subject to notice-and-comment rulemaking. However, to the extent
that this determination otherwise would require notice and opportunity
for public comment, there is good cause within the meaning of 5 U.S.C.
553(b)(3)(B) not to apply those requirements here. Providing for notice
and comment would be impracticable because of the limited time provided
for making this determination, and would be contrary to the public
interest because it would divert agency resources from the substantive
review of the CAA section 126 petition.
C. Effective Date Under the APA
This action is effective on January 23, 2017. Under the APA, 5
U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days
after the date of publication in the Federal Register if the agency has
good cause to mandate an earlier effective date. This action--a
deadline extension--must take effect immediately because its purpose is
to extend by 6 months the deadline for action on the petition. As
discussed earlier, the EPA intends to use the 6-month extension period
to develop a proposal on the petition and provide time for public
comment before issuing
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the final rule. It would not be possible for the EPA to complete the
required notice and comment and public hearing process within the
original 60-day period noted in the statute. These reasons support an
immediate effective date.
III. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is exempt from review by the Office of Management and
Budget because it simply extends the date for the EPA to take action on
a petition.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. This good cause final action simply extends the date for the
EPA to take action on a petition and does not impose any new
obligations or enforceable duties on any state, local or tribal
governments or the private sector. It does not contain any
recordkeeping or reporting requirements.
C. Regulatory Flexibility Act (RFA)
This action is not subject to the RFA. The RFA applies only to
rules subject to notice-and-comment rulemaking requirements under the
APA, 5 U.S.C. 553, or any other statute. This rule is not subject to
notice-and-comment requirements because the agency has invoked the APA
good cause exemption under 5 U.S.C. 553(b).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate of $100 million
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
This action 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175. This good cause final action simply extends the
date for the EPA to take action on a petition. Thus, Executive Order
13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action is not subject to Executive Order
12898 (59 FR 7629, February 16, 1994) because it does not establish an
environmental health or safety standard. This good cause final action
simply extends the date for the EPA to take action on a petition and
does not have any impact on human health or the environment.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. The CRA allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice-and-comment rulemaking procedures are
impracticable, unnecessary or contrary to the public interest (5 U.S.C.
808(2)). The EPA has made a good cause finding for this rule as
discussed in Section II.B of this document, including the basis for
that finding.
IV. Statutory Authority
The statutory authority for this action is provided by sections
110, 126 and 307 of the CAA as amended (42 U.S.C. 7410, 7426 and 7607).
V. Judicial Review
Under section 307(b)(1) of the CAA, judicial review of this final
rule is available only by the filing of a petition for review in the
U.S. Court of Appeals for the appropriate circuit by March 24, 2017.
Under section 307(b)(2) of the CAA, the requirements that are the
subject of this final rule may not be challenged later in civil or
criminal proceedings brought by us to enforce these requirements.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practices and procedures,
Air pollution control, Electric utilities, Incorporation by reference,
Intergovernmental relations, Nitrogen oxides, Ozone.
Dated: January 9, 2017.
Gina McCarthy,
Administrator.
[FR Doc. 2017-00760 Filed 1-19-17; 8:45 am]
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