Extension of Deadline for Action on the Second Section 126 Petition From New Jersey, 69889-69892 [2010-28960]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 220 (Tuesday, November 16, 2010)]
[Rules and Regulations]
[Pages 69889-69892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28960]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2010-0473; FRL-9227-6]


Extension of Deadline for Action on the Second Section 126 
Petition From New Jersey

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is determining that 60 days is 
insufficient time to complete the technical and other analyses and the 
public notice and comment process required for our review of a petition 
submitted by the State of New Jersey Department of Environmental 
Protection (New Jersey) pursuant to section 126 of the Clean Air Act 
(CAA). The petition requests that EPA make a finding that the coal-
fired Portland Generating Station in Upper Mount Bethel Township, 
Northampton County, Pennsylvania, is emitting air pollutants that 
significantly contribute to nonattainment or interfere with maintenance 
of the 1-hour sulfur dioxide (SO2) national ambient air 
quality standards (NAAQS). Under the CAA, EPA is authorized to grant a 
time extension for responding to the petition 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. EPA is therefore extending the deadline for acting on 
the petition to no later than May 16, 2011.

DATES: The effective date of this action is November 16, 2010.

ADDRESSES: EPA has established a docket for this rulemaking under 
Docket ID number EPA-HQ-OAR-2010-0473.

[[Page 69890]]

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: General questions concerning this 
final rule should be addressed to Ms. Gobeail McKinley, Office of Air 
Quality Planning and Standards, Geographic Strategies Group, Mail Code 
C539-04, Research Triangle Park, NC 27711; telephone (919) 541-5246; e-
mail address: mckinley.gobeail@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Legal Requirements for Interstate Air Pollution
    B. New Jersey's September 2010 Submittal
II. Final Action
    A. Rule
    B. Notice-and-Comment Under the Administrative Procedures Act 
(APA)
    C. Effective Date Under the APA
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Judicial Review

I. Background

    This is a procedural action to extend the deadline for EPA to 
respond to a petition from New Jersey filed under CAA section 126. EPA 
received the petition and a link to the supporting documentation via e-
mail on September 17, 2010. The petition requests that EPA make a 
finding under section 126 of the CAA that the coal-fired Portland 
Generating Station (Portland Plant) in Upper Mount Bethel Township, 
Northampton County, Pennsylvania, is emitting air pollutants in 
violation of the provisions of section 110(a)(2)(D)(i) of the CAA with 
respect to the 1-hour SO2 NAAQS. New Jersey stated that the petition 
provided additional documentation to supplement a section 126 petition 
submitted by New Jersey on May 12, 2010.

A. Legal Requirements for Interstate Air Pollution

    The Clean Air Act provides, in Section 110(a)(2)(D)(i), 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 NAAQS. Section 
126(b) of the CAA in turn 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)(i) \1\ by 
contributing significantly to nonattainment or maintenance problems in 
downwind States. If EPA makes such a finding, the source must cease 
operation or comply with emission limits established by EPA.
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    \1\ The text of section 126 codified in the United States Code 
cross references section 110(a)(2)(D)(ii) instead of section 
110(a)(2)(D)(i). The courts have confirmed that this is a 
scrivener's error and the correct cross reference is to 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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    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 the source may continue to operate if it complies 
with emission limitations and compliance schedules that 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.
    Section 126(b) further provides that EPA must hold a public hearing 
on 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.

B. New Jersey's September 2010 Submittal

    EPA has determined that the September 17, 2010, petition submitted 
by New Jersey is a new petition and not a supplement to the May 12, 
2010, petition. The first petition submitted by New Jersey on May 12, 
2010, alleged that emissions from the Portland Plant significantly 
contribute to nonattainment or interfere with maintenance of the 2006 
24-hour fine particulate (PM2.5) NAAQS and the 3-hour and 
24-hour SO2 NAAQS. Subsequently, EPA promulgated the revised 
primary SO2 NAAQS on June 2, 2010 (75 FR 35520). 
Specifically, EPA established the new 1-hour SO2 NAAQS at a 
level of 75 parts per billion (ppb), based on the 3-year average of the 
annual 99th percentile of 1-hour daily maximum concentrations. The 
second petition submitted by New Jersey on September 17, 2010, alleges 
that emissions from the Portland Plant significantly contribute to 
nonattainment or interfere with maintenance of the newly promulgated 1-
hour SO2 NAAQS. Because the 1-hour SO2 NAAQS did 
not exist at the time New Jersey filed its first petition, the 1-hour 
SO2 NAAQS could not constitute a basis for that petition. 
For this reason, EPA believes it is more appropriate to treat the 
second petition as a new section 126 petition instead of as a 
supplement to the first petition. EPA is reviewing the first petition 
and the

[[Page 69891]]

current deadline for a response to that petition is January 12, 2011 
(75 FR 39633).

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 second 
petition from New Jersey is not adequate to allow the public and the 
Agency the opportunity to carry out the purposes of section 307(b). 
Specifically, the 60-day period is insufficient for EPA to complete the 
necessary technical review, develop an adequate proposal, and allow 
time for notice and comment on whether the Portland Plant identified in 
the section 126 petition contributes significantly to nonattainment or 
maintenance problems in New Jersey. EPA is currently reviewing the 
second petition and supporting technical information provided by New 
Jersey. The supporting information being reviewed includes modeling 
that New Jersey asserts supports a finding that the Portland Plant 
significantly contributes to exceedances of the 1-hour SO2 
NAAQS in New Jersey. In addition, New Jersey has begun providing 
monitoring data from a recently established monitor in Warren County. 
Based on preliminary data from the site, there are indications that 
ground level concentrations are approaching or exceeding the 1-hour 
SO2 NAAQS levels. EPA notes that these data are preliminary 
in nature and have not been validated. If, after reviewing the 
available technical information, EPA concludes that the Portland Plant 
significantly contributes to exceedances of the 1-hour SO2 
NAAQS in New Jersey, it would propose to grant the petition and make a 
positive finding pursuant to section 126. EPA currently intends to 
propose a response to the second petition in February 2011.
    EPA considers this extension of the deadline for action on the 
second petition essential to afford adequate time to fully review and 
evaluate the basis for the petition, develop a proposed remedy, if 
necessary, prepare a proposal that clearly explains the issues so as to 
facilitate public comment, and 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 no later than May 16, 
2011.

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 November 16, 2010. 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 public comment before issuing the 
final rule. It would not be possible for 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 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 by the Office of Management and 
Budget 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 deadline 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

[[Page 69892]]

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 Risks 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 Concerning Regulations 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

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    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 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

    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 18, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Administrative practice and procedure, 
Air pollution control, Electric utilities, Incorporation by reference, 
Intergovernmental relations, Reporting and recordkeeping requirements, 
Sulfur dioxide.

    Dated: November 10, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-28960 Filed 11-15-10; 8:45 am]
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