[Federal Register Volume 62, Number 224 (Thursday, November 20, 1997)]
[Rules and Regulations]
[Pages 61914-61916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30520]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-5925-4]
Final Determination To Extend Deadline for Promulgation of Action
on Section 126 Petitions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is extending by a second one-month period the deadline
for taking final action on petitions that eight States have submitted
to require EPA to make findings that sources upwind of those States
contribute significantly to nonattainment problems in those States.
Under the Clean Air Act (CAA or Act), EPA is authorized to grant this
time extension if EPA determines that the extension is necessary, among
other things, to meet the purposes of the Act's rulemaking
requirements. By this notice, EPA is making that determination. The
eight States that have submitted the petitions are Connecticut, Maine,
Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and
Vermont.
EFFECTIVE DATE: This action is effective as of November 14, 1997.
FOR FURTHER INFORMATION CONTACT: Howard J. Hoffman, Office of General
Counsel, MC-2344, 401 M St. SW, Washington, D.C. 20460, (202) 260-5892.
SUPPLEMENTARY INFORMATION:
I. Background
Today's action follows closely EPA's final action taken by notice
dated October 22, 1997 (62 FR 54769). Familiarity with that document is
assumed, and background information in that document will not be
repeated here.
In the October 22, 1997 document, EPA extended by one month,
pursuant to its authority under CAA section 307(d)(10), the time frame
for taking final action on petitions submitted by eight states under
CAA section 126. These eight states are Connecticut, Maine,
Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and
Vermont. By these petitions, the eight states have asked EPA to make
findings that major stationary sources in upwind states emit in
violation of the prohibition of CAA section 110(a)(2)(D), by
contributing significantly to nonattainment problems in the petitioning
States.
EPA received the petitions on August 14-15, 1997. Under section
126(b), for each petition, EPA must make the requested finding, or deny
the petition, within 60 days of receipt of the petition. As indicated
in the October 22, 1997 document, EPA has the authority to extend the
deadline for up to six months, under CAA section 307(d)(10). By the
October 22, 1997 document, EPA extended the deadline for one month, to
November 14, 1997, and further indicated that EPA was reserving its
option to extend the period by all or part of the remaining five months
of the six-month extension period.
EPA is today extending the deadline for an additional one month, to
December 14, 1997. EPA's reasons are identical to those articulated in
the October 22, 1997 document. In the October 22, 1997 document, EPA
explained the basis for the first one-month extension as follows:
[[Page 61915]]
In accordance with section 307(d)(10), EPA is today determining
that the 60-day period afforded by section 126(b) is not adequate to
allow the public and the agency adequate opportunity to carry out the
purposes of the section 307(d) procedures for developing an adequate
proposal on whether the sources identified in the section 126 petitions
contribute significantly to nonattainment problems downwind, and,
further, to allow public input into the promulgation of any controls to
mitigate or eliminate those contributions. The determination of whether
upwind emissions contribute significantly to downwind nonattainment
areas is highly complex. The NOX SIP call, which proposes a
somewhat comparable determination, relied on extensive computer
modeling of air quality emissions and the ambient impacts therefrom in
the large geographic region of the eastern half of the United States.
This modeling was developed over a two-year period. It reflected the
input of EPA, the 37 states east of the Rockies as well as numerous
industry and citizen groups, all of whom participated in the OTAG.
Moreover, EPA is allowing a 120-day comment period on the
NOX SIP call proposal, and expects to take final action on
the NOX SIP call in September 1998, some 11 months after the
date of proposal.
In acting on the section 126 petitions, EPA must make
determinations that, generally, are at least as complex as those
required for the NOX SIP call, and EPA must do so for
sources throughout the eastern half of the United States. Moreover, if
EPA determines that the petitions should be granted, EPA must
promulgate appropriate controls for the affected sources.
EPA is in the process of determining what would be an appropriate
schedule for action on the section 126 petitions, in light of the
complexity of the required determinations and the usefulness of
coordinating generally with the procedural path for the NOX
SIP call. It is imperative that this schedule (i) afford EPA adequate
time to prepare a document that clearly elucidates the issues so as to
facilitate public comment, as well as (ii) afford the public adequate
time to comment.
EPA is continuing to discuss an appropriate schedule with the
section 126 petitioners and other interested parties. Accordingly, EPA
concludes today, as it did in the October 22, 1997 document, that
extending the date for action on the section 126 petitions for another
one month is necessary to determine the appropriate overall schedule
for action, as well as to continue to develop the technical analysis
needed to develop a proposal.
EPA's action of October 22, 1997, erroneously indicated that the
extended deadline for six of the States--Connecticut, Maine, New
Hampshire, New York, Pennsylvania, and Vermont--would be November 15,
1997. Because the initial 60-day period for EPA action on the 126
petitions submitted by these states expired on October 14, 1997, the
first one-month extension would extend the deadline to November 14,
1997. EPA is today correcting that error, although today's action,
which further extends the deadline, makes this error irrelevant.
As EPA indicated in the October 22, 1997 document, EPA, even with
today's action, continues not to use the entire six months provided
under section 307(d)(10) for the extension. EPA continues to reserve
the right to apply the remaining four months, or a portion thereof, as
an additional extension, if necessary, immediately following the
conclusion of the one-month period, or to apply the remaining time to
the period following EPA's proposed rulemaking.
II. Final Action
A. Rule
Today, EPA is determining, under CAA section 307(d)(10), that a
second one-month period is necessary to assure the development of an
appropriate schedule for rulemaking on the section 126 petitions, which
schedule would allow EPA adequate time to prepare a notice for proposal
that will best facilitate public comment, as well as allow the public
sufficient time to comment. Accordingly, EPA is granting a one-month
extension to the time for rulemaking on the section 126 petitions.
Under this extension, the date for action on each of the section 126
petitions is December 14, 1997.
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). EPA
believes that because of the limited time provided to make a
determination that the deadline for action on the section 126 petitions
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 is subject to notice-and-comment rulemaking,
EPA invokes the good cause exception pursuant to the APA, 5 U.S.C.
553(b)(3)(B). Providing 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 critical substantive review of the section 126
petitions.
C. Effective Date Under the APA
Today's action will be effective on November 14, 1997. 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. Today's
action--a deadline extension--must take effect immediately because its
purpose is to move back by one month the November 14, 1997 deadlines
for the section 126 petitions. Moreover, EPA intends to use immediately
the one-month extension period to continue to develop an appropriate
schedule for ultimate action on the section 126 petitions, and to
continue to develop the technical analysis needed to develop the notice
of proposed rulemaking. These reasons support an effective date prior
to 30 days after the date of publication.
D. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
E. Unfunded Mandates
Under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et
seq., EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate. In addition,
before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, EPA must have
developed a small government agency plan. EPA has determined that these
requirements do not apply to today's action because this rulemaking (i)
is not a Federal mandate--rather, it simply extends the date for EPA
action on a rulemaking; and (ii) contains no regulatory requirements
that might significantly or uniquely affect small governments.
F. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.,
EPA must propose a regulatory flexibility analysis assessing the impact
on small entities of any rule subject to the notice-and-comment
rulemaking requirements. Because this action is exempt from such
[[Page 61916]]
requirements, as described above, it is not subject to RFA.
G. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A), added by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), EPA submitted, by the date
of publication of this rule, a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2), as amended.
H. Paperwork Reduction Act
This rule does not contain any information collection requirements
which require OMB approval under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.)
I. Judicial Review
Under CAA section 307(b)(1), a petition to review today's action
may be filed in the Court of Appeals for the District of Columbia
within 60 days of November 20, 1997.
Dated: November 14, 1997.
Carol M. Browner,
Administrator.
[FR Doc. 97-30520 Filed 11-19-97; 8:45 am]
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