[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21909-21912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09892]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2018-0170; FRL-9977-90-OAR]
RIN 2060-AU02
Extension of Deadline for Action on the Section 126(b) Petition
From New York
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 dated March 12, 2018, submitted by the state
of New York pursuant to section 126(b) of the Clean Air Act (CAA). The
petition requests that the EPA make a finding that emissions from the
collection of identified sources in nine states (Illinois, Indiana,
Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West
Virginia) significantly contribute to and interfere with maintenance of
the 2008 and 2015 ozone national ambient air quality standards (NAAQS)
in New York State. Under section 307(d)(10) of the 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 from May
13, 2018, to no later than November 9, 2018.
DATES: This final rule is effective on May 11, 2018.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2018-0170. All documents in the docket are
listed on the http://www.regulations.gov website. 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, 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. Lev Gabrilovich, U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards, Air Quality Policy Division, Mail Code C539-01, Research
Triangle Park, NC 27711, telephone (919) 541-1496; email at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Legal Standard
This is a procedural action to extend the deadline for the EPA to
respond to a petition from the state of New York filed pursuant to CAA
section 126(b). The EPA received the petition on March 14, 2018. The
petition requests that the EPA make a finding under section 126(b) of
the CAA that emissions from the collection of identified sources in
nine states (Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio,
Pennsylvania, Virginia and West Virginia) significantly contribute to
and interfere with maintenance of the 2008 and 2015 ozone NAAQS in New
York in violation of the provisions of section 110(a)(2)(D)(i) of the
CAA, also known as the ``good neighbor'' provisions.
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 interfering with 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. 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.
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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 (DC Cir. 2001).
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The CAA section 126(b) petition from the state of New York requests
that the EPA make a finding that, within each of the identified nine
upwind states, certain sources within the electric generating unit
(EGU) and non-EGU sectors collectively 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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\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 and after holding a public hearing. In addition to the
public hearing provisions in CAA section 126(b), the EPA's action under
[[Page 21910]]
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). Section
307(d)(3) of the CAA provides minimum requirements for the contents of
a proposed action subject to 307(d), including summarizing the
methodology used in analyzing data on which the proposed action is
based and the major legal interpretations and policy considerations
underlying the proposal. CAA section 307(d)(6) requires that the final
action be equally detailed and include an explanation of any major
changes from proposal and a response to each significant comment
received.
With respect to the public hearing, the EPA must provide sufficient
notice to the public. The Federal Register Act identifies 15 days'
notice as the timeframe presumed to be sufficient notice to the public
in advance of a public hearing. See 44 U.S.C. Section 1508. CAA section
307(d)(5) also provides specific direction for the conduct of public
hearings, requiring at (iv), that ``the Administrator shall keep the
record of [the public hearing] open for thirty days after the
completion of the proceeding to provide for an opportunity for
submission of rebuttal and supplementary information.''
In sum, the statutory requirements governing the EPA's action on a
CAA section 126(b) petition necessitate the following procedural steps:
Conducting technical, legal, and policy review of a submitted petition;
developing an adequate proposal; providing sufficient notice of a
public hearing; holding the public hearing; allowing sufficient time
for notice and comment on both the proposal and public hearing record
and developing responses to comments received and a final action on the
petition.
Section 307(d)(10) of the CAA provides for a time extension, under
certain circumstances, for a rulemaking subject to 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.
The EPA believes that the plain language of this provision allows
the EPA to extend statutory deadlines for rulemakings enumerated in CAA
section 307(d)(1) that are subject to deadlines with less than 6 months
between a proposed and final action. The phrase ``which requires
promulgation less than six months after date of proposal'' clearly
specifies the type of deadline that may be extended, while the phrase
``may be extended to not more than six months after date of proposal''
limits the duration of an extension invoked under this provision.
Notably, neither of these phrases, nor the provision in its entirety,
impose any predicate steps on the EPA for invoking an extension other
than determining that such an extension is necessary to afford the
public, and the agency, adequate opportunity to carry out the purposes
of CAA section 307(d).
To the extent the terms of this provision are ambiguous, the EPA
believes its interpretation of these terms is reasonable. The stated
purpose of this provision is to provide both the public and the EPA
adequate opportunity to effectuate the objectives of CAA section 307(d)
regarding rulemaking. Interpreting CAA section 307(d)(10) to require
the EPA to take some substantive predicate rulemaking step in a shorter
timeframe to invoke the 6-month extension would contradict the stated
purpose of the extension, as taking a predicate action within such
shorter timeframe risks undermining the same reasons for invoking the
extension. For example, were the EPA required to issue a proposed
action on a CAA section 126(b) petition within 60 days of receipt to
invoke the 6-month extension, the EPA may risk inadequately meeting the
requirements of CAA section 307(d)(3) governing the minimum contents of
such proposal depending on the technical complexity of the petition and
other factors involved in developing an adequate proposal. Given that
the purpose of an extension under CAA section 307(d)(10) is, in part,
to provide the EPA with adequate opportunity to meet the requirements
of section 307(d), it follows that the extension should be available
for both the EPA's proposed and final action on a section 126(b)
petition.
Additionally, the EPA notes that CAA section 307(d)(1) does not
speak to when the EPA must determine that an extension is necessary.
The EPA acknowledges that the timeframes set out under CAA sections
126(b) and 307(d)(10) indicate Congress's clear intent that the EPA act
quickly on a section 126 petition. Considering this intent, the EPA
reasonably interprets CAA section 307(d)(10) to require the EPA to make
the necessary determination in invoking a 6-month extension no later
than the end of the original response time provided by section 126(b)
for acting on a petition, which is 60-days from receipt. Such
interpretation ensures that that the overall legal deadline for the
EPA's action on a CAA section 126(b) petition does not exceed the
aggregate eight-month deadline provided under the CAA (i.e., 60 days
provided under section 126(b) plus 6 months provided under section
307(d)(10)). Finally, under the EPA's reasonable reading of CAA section
307(d)(10), this extension may be invoked only once.
The EPA believes its reading of the extension provision under CAA
section 307(d)(10) is consistent with Congress's dual intent of
ensuring that the EPA acts expeditiously on a CAA section 126(b)
petition and ensuring that the public has adequate opportunity to
participate in the EPA's rulemaking process on such a petition. As
described previously, the extension will allow the EPA to undertake the
appropriate and necessary public participation processes, such as
holding a public hearing on a proposed action on New York's petition.
Based on either a plain reading of the language, or, in the
alternative, a reasonable reading of the provision in the event of
ambiguity, CAA section 307(d)(10), therefore, may be applied to CAA
section 126(b) 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 New York is not adequate time to allow
the public, and the agency, the opportunity to carry out the purposes
of CAA section 307(d). In making this determination, the EPA has met
the necessary steps to invoke a 6-month extension for acting on New
York's CAA section 126(b) petition. Specifically, the 60-day period is
insufficient time for the EPA to complete the necessary technical
review of the petition, develop an adequate proposal, and allow time
for notice and comment, including an opportunity for public hearing, on
a proposed finding regarding whether emissions from the collection of
identified EGU and non-EGU sources in nine states (Illinois, Indiana,
Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West
Virginia) significantly contribute to and interfere with maintenance of
the 2008 and 2015 ozone NAAQS in New York
[[Page 21911]]
State. Moreover, the 60-day period is insufficient for the EPA to
review and develop responses 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. Particularly,
the timeframes for notice of the public hearing and duration of comment
period after the hearing itself would consume 45 days (presuming 15
days' notice of the hearing, and a 30-day comment period thereafter),
leaving a total of 15 days of the 60-day period to complete the
previously identified steps needed to review the petition, develop a
proposal, review and develop responses 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. An
appropriate schedule for action on the CAA section 126(b) petition 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.
With this extension, the deadline for the EPA to act on the petition is
revised from May 13, 2018, to November 9, 2018. The EPA does not intend
to grant itself any further extension under this provision if upon
expiration of this extension the EPA has not yet acted on New York's
section 126(b) petition.
B. Notice and Comment Under the Administrative Procedure 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 the EPA to
make a finding, the deadline for action on the CAA section 126(b)
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(b)
petition.
C. Effective Date Under the APA
This action is effective on May 11, 2018. 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 the final rule. 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 act on a
petition.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
C. 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 act 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.
D. 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).
E. 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.
F. 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.
G. 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 act on a petition. Thus, Executive Order 13175 does
not apply to this rule.
H. 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.
I. 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.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. 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 act on a petition and does not
have any impact on human health or the environment.
[[Page 21912]]
L. 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practices and procedures,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen oxides, Ozone.
Dated: May 3, 2018.
E. Scott Pruitt,
Administrator.
[FR Doc. 2018-09892 Filed 5-8-18; 8:45 am]
BILLING CODE 6560-50-P