Extension of Deadline for Action on Section 126 Petition From Delaware, 7820-7823 [E9-3660]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 33 (Friday, February 20, 2009)]
[Rules and Regulations]
[Pages 7820-7823]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3660]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2009-0017; FRL-8774-6]


Extension of Deadline for Action on Section 126 Petition From 
Delaware

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is extending by 6 months the deadline for EPA to take 
action on a petition submitted by the Delaware Department of Natural 
Resources and Environmental Control (DNREC). The petition requests that 
EPA make a finding under section 126(b) of the Clean Air Act (CAA) that 
electric generating units (EGUs) in nine upwind states are emitting air 
pollutants in violation of the provisions of section 110(a)(2)(D)(i) of 
the CAA. Under the CAA, EPA is authorized to grant a time extension for 
responding to the petition

[[Page 7821]]

if EPA determines that the extension is necessary, among other things, 
to meet the purposes of the CAA's rulemaking requirements. By this 
action, EPA is making that determination.

DATES: This action is effective on February 20, 2009.

ADDRESSES: EPA has established a docket for this rulemaking under 
Docket ID number EPA-HQ-OAR-2009-0017. All documents in the docket are 
listed in the https://www.regulations.gov index. 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. Publicly available docket materials are available 
either electronically in https://www.regulations.gov or in hard copy at 
the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution 
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For further information, contact Tim 
Smith, Air Quality Planning Division, Office of Air Quality Planning 
and Standards, mail code C539-04, Environmental Protection Agency, 
Research Triangle Park, North Carolina 27711; telephone number: 919-
541-4718; fax number: 919-541-0824; e-mail address: smith.tim@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    This is a procedural action to extend the deadline for EPA to 
respond to a petition from Delaware filed under CAA section 126. EPA 
received the section 126 petition on December 18, 2008. The petition 
requests that EPA make a finding that EGUs in Maryland, Michigan, New 
Jersey, New York, North Carolina, Ohio, Pennsylvania, Virginia, and 
West Virginia are emitting air pollutants in violation of the provision 
of section 110(a)(2)(D)(i) of the CAA. That section provides that each 
state's State Implementation Plan (SIP) shall contain adequate 
provisions prohibiting 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 national ambient 
air quality standard (NAAQS). The petition asserts that EGUs in the 
nine named states have a significant impact on Delaware's air quality 
and that this impact would be mitigated by further regulation of 
nitrogen oxide and sulfur dioxide emissions from those sources.
    Section 126(b) authorizes states or political subdivisions to 
petition 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 section 110(a)(2)(D), by contributing significantly 
to nonattainment or maintenance problems in downwind states. If EPA 
makes such a finding, EPA is authorized to establish federal emissions 
limits for the sources which so contribute.
    Under section 126(b), EPA must make the finding requested in the 
petition, or must deny the petition within 60 days of its receipt. 
Under section 126(c), any existing sources for which EPA makes the 
requested finding must cease operations within three months of the 
finding, except that those sources may continue to operate if they 
comply with emission limitations and compliance schedules that EPA may 
provide to bring about compliance with the applicable requirements.
    Section 126(b) further provides that EPA must allow a public 
hearing for the petition. EPA's action under section 126 is also 
subject to the procedural requirements of CAA section 307(d). See 
section 307(d)(1)(N). One of these requirements is notice-and-comment 
rulemaking, under section 307(d)(3).
    In addition, section 307(d)(10) provides for a time extension, 
under certain circumstances, for rulemaking subject to section 307(d). 
Specifically, 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.

Section 307(d)(10) applies to section 126 rulemakings because the 60-
day time limit under section 126(b) necessarily limits the period after 
proposal to less than six months.

II. Final Action

A. Rule

    In accordance with section 307(d)(10), EPA is determining that the 
60-day period afforded by section 126(b) for responding to the petition 
from the Delaware DNREC is not adequate to allow the public and the 
Agency adequate opportunity to carry out the purposes of section 
307(b). Specifically, the 60-day period is insufficient for EPA to 
develop an adequate proposal and allow time for notice and comment on 
whether the EGUs identified in the section 126 petition contribute 
significantly to nonattainment or maintenance problems in Delaware.
    EPA is in the process of determining what would be an appropriate 
schedule for action on the section 126 petition from Delaware. This 
schedule must afford 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 prior to issuing the 
final rule.
    As a result of this extension, the deadline for EPA to act on the 
petition is August 13, 2009.

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 that the deadline for action on the 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 section 126 petition.

C. Effective Date Under the APA

    This action is effective on February 20, 2009. 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. It is 
important for this deadline extension action to be effective before the 
original 60-day period for action elapses. As discussed above, EPA 
intends to use the 6-month extension period to develop a proposal on 
the petition and provide time for

[[Page 7822]]

public comment before issuing the final rule. These reasons support an 
immediate effective date.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

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(b). This action simply extends the date 
for 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. Therefore, it does not impose an 
information collection burden.

C. Regulatory Flexibility Act

    This final rule 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 rule is not subject to notice-and-
comment requirements under the APA or any other statute because, 
although the rule is subject to the APA, the Agency has invoked the 
``good cause'' exemption under 5 U.S.C. 553(b). Therefore, it is not 
subject to the notice-and-comment requirement.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (URMA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any state, local, or 
tribal governments or the private sector. This action simply extends 
the date for 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. Therefore, this action is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of URMA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action simply 
extends the date for EPA to take action on a petition and does not 
impose any new obligations or enforceable duties on any small 
governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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.''
    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, as 
specified in Executive Order 13132. This rule simply extends the date 
for 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. Thus, Executive Order 13132 does not 
apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). 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, as specified in Executive Order 13175. 
This action does not significantly or uniquely affect the communities 
of indian tribal governments. As discussed above, this action imposes 
no new requirements that would impose compliance burdens. Accordingly, 
the requirements of Executive Order 13175 do not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because the Agency does not believe the environmental health 
risks or safety risks addressed by this action present a 
disproportionate risk to children. This action is not subject to 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks. This rule simply 
extends the deadline for EPA to take action on a petition and does not 
impose any regulatory requirements.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that this 
rule is not likely to have any adverse effects because this action 
simply extends the deadline for EPA to take action on a petition.

I. National Technology Transfer and Advancement Act

    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898--Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 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 its programs, 
policies, and activities on minorities and low-income populations in 
the United States.
    The EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it simply extends 
the deadline for EPA to take action on a petition and does not impose 
any regulatory requirements.

K. Congressional Review Act

    The Congressional Review Act (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

[[Page 7823]]

copy of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 of the CRA provides an 
exception to this requirement. For any rule for which an agency for 
good cause finds that notice and comment are impracticable, 
unnecessary, or contrary to the public interest, the rule may take 
effect on the date set by the Agency. The EPA will submit 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 
United States prior to publication of the rule in the Federal Register. 
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

L. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final actions by EPA. This 
section provides, in part, that petitions for review must be filed in 
the Court of Appeals for the District of Columbia Circuit (i) when the 
agency action consists of ``nationally applicable regulations 
promulgated, or final actions taken, by the Administrator,'' or (ii) 
when such action is locally or regionally applicable, if ``such action 
is based on a determination of nationwide scope or effect and if in 
taking such action the Administrator finds and publishes that such 
action is based on such a determination.''
    Under CAA section 307(b)(1), a petition to review this action must 
be filed in the Court of Appeals for the District of Columbia Circuit 
within 60 days of February 20, 2009.

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Electric utilities, Intergovernmental relations, 
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur dioxide.

    Dated: February 12, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-3660 Filed 2-19-09; 8:45 am]
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