Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Failure To Submit State Implementation Plan Revisions Required for Greenhouse Gases, 81874-81878 [2010-32762]
Download as PDF
<![CDATA[
81874
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations
*
*
*
*
*
[FR Doc. 2010–32664 Filed 12–28–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–HQ–OAR–2010–0107; FRL–9244–7]
Action To Ensure Authority To Issue
Permits Under the Prevention of
Significant Deterioration Program to
Sources of Greenhouse Gas
Emissions: Finding of Failure To
Submit State Implementation Plan
Revisions Required for Greenhouse
Gases
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The EPA is making a finding
that seven states have failed to submit
revisions to their EPA-approved state
implementation plans (SIPs) to satisfy
requirements of the Clean Air Act (CAA)
to apply Prevention of Significant
Deterioration (PSD) requirements to
greenhouse gas (GHG)-emitting sources.
SUMMARY:
By notice dated December 13, 2010,
EPA issued a ‘‘SIP call’’ for these seven,
and six other, states, requiring each state
to revise its SIP as necessary to correct
the SIP’s failure to apply PSD to such
sources and establishing a SIP submittal
deadline for each state. EPA established
December 22, 2010, as the deadline for
these seven states. By this action, EPA
is making a finding that the seven states
failed to submit the required SIP
revisions by that date. This finding
requires EPA to promulgate a Federal
implementation plan (FIP) for these
seven states applying PSD to GHGemitting sources, and EPA is taking a
separate action to promulgate the FIP
immediately. The seven states are
Arizona, Arkansas, Florida, Idaho,
Kansas, Oregon, and Wyoming.
DATES: This action is effective on
December 29, 2010.
ADDRESSES: EPA has established a
docket for this rulemaking under Docket
ID No. EPA–HQ–OAR–2010–0107. 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., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, 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 U.S. Environmental Protection
Agency, Air Docket, EPA/DC, EPA West
Building, 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 Air Docket is
(202) 566–1742.
Ms.
Lisa Sutton, Air Quality Policy Division,
Office of Air Quality Planning and
Standards (C504–03), Environmental
Protection Agency, Research Triangle
Park, NC 27711; telephone number:
(919) 541–3450; fax number: (919) 541–
5509; e-mail address:
sutton.lisa@epa.gov.
For information related to a specific
state, local, or tribal permitting
authority, please contact the appropriate
EPA regional office:
FOR FURTHER INFORMATION CONTACT:
EPA regional office
Contact for regional office (person, mailing address,
telephone number)
Permitting authority
I ............................................
Dave Conroy, Chief, Air Programs Branch, EPA Region
1, 5 Post Office Square, Suite 100, Boston, MA
02109–3912, (617) 918–1661.
Raymond Werner, Chief, Air Programs Branch, EPA
Region 2, 290 Broadway, 25th Floor, New York, NY
10007–1866, (212) 637–3706.
Kathleen Cox, Chief, Permits and Technical Assessment Branch, EPA Region 3, 1650 Arch Street,
Philadelphia, PA 19103–2029, (215) 814–2173.
Lynorae Benjamin, Chief, Regulatory Development
Section, Air, Pesticides and Toxics Management Division, EPA Region 4, Atlanta Federal Center, 61
Forsyth Street, SW., Atlanta, GA 30303–3104, (404)
562–9033.
J. Elmer Bortzer, Chief, Air Programs Branch (AR–18J),
EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604–3507, (312) 886–1430.
Jeff Robinson, Chief, Air Permits Section, EPA Region
6, Fountain Place 12th Floor, Suite 1200, 1445 Ross
Avenue, Dallas, TX 75202–2733, (214) 665–6435.
Mark Smith, Chief, Air Permitting and Compliance
Branch, EPA Region 7, 901 North 5th Street, Kansas
City, KS 66101, (913) 551–7876.
Carl Daly, Unit Leader, Air Permitting, Monitoring &
Modeling Unit, EPA Region 8, 1595 Wynkoop Street,
Denver, CO 80202–1129, (303) 312–6416.
Gerardo Rios, Chief, Permits Office, EPA Region 9, 75
Hawthorne Street, San Francisco, CA 94105, (415)
972–3974.
Nancy Helm, Manager, Federal and Delegated Air Programs Unit, EPA Region 10, 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101, (206) 553–6908.
Connecticut, Massachusetts, Maine, New Hampshire,
Rhode Island, and Vermont.
II ...........................................
III ..........................................
IV ..........................................
V ...........................................
VI ..........................................
VII .........................................
VIII ........................................
srobinson on DSKHWCL6B1PROD with RULES
IX ..........................................
X ...........................................
VerDate Mar<15>2010
20:53 Dec 28, 2010
Jkt 223001
PO 00000
Frm 00044
Fmt 4700
Sfmt 4700
New Jersey, New York, Puerto Rico, and Virgin Islands.
District of Columbia, Delaware, Maryland, Pennsylvania, Virginia, and West Virginia.
Alabama, Florida, Georgia, Kentucky, Mississippi, North
Carolina, South Carolina, and Tennessee.
Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
Arkansas, Louisiana, New Mexico, Oklahoma, and
Texas.
Iowa, Kansas, Missouri, and Nebraska.
Colorado, Montana, North Dakota, South Dakota, Utah,
and Wyoming.
Arizona; California; Hawaii and the Pacific Islands; Indian Country within Region 9 and Navajo Nation; and
Nevada.
Alaska, Idaho, Oregon, and Washington.
E:\FR\FM\29DER1.SGM
29DER1
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations
V. Judicial Review
VI. Statutory Authority
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities affected by this rule include
state and local permitting authorities.1
By this action, EPA is making a finding
of failure to submit the required SIPs for
seven states (comprising eight state and
local programs) because their EPAapproved SIP PSD programs do not
apply to GHG-emitting sources. The
seven states are Arizona, Arkansas,
Florida, Idaho, Kansas, Oregon, and
Wyoming. In Arizona, the finding of
failure applies to two EPA-approved
PSD permit programs—‘‘Pinal County’’
and ‘‘Rest of State (Excludes Maricopa
County, Pima County, and Indian
Country).’’
B. How is the preamble organized?
The information presented in this
preamble is organized as follows:
srobinson on DSKHWCL6B1PROD with RULES
I. General Information
A. Does this action apply to me?
B. How is the preamble organized?
II. Background
A. CAA and Regulatory Context
1. SIP PSD Requirements
2. SIP Inadequacy and Corrective Action
B. Recent EPA Regulatory Action
Concerning PSD Requirements for GHGEmitting Sources
III. Final Action: Finding of Failure of Certain
States To Submit Corrective SIP
Revisions
IV. Statutory and Executive Order Reviews
A. Notice and Comment Under the
Administrative Procedure Act (APA)
B. Executive Order 12866—Regulatory
Planning and Review
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform
F. Executive Order 13132—Federalism
G. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
I. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
J. National Technology Transfer and
Advancement Act
K. Executive Order 12898—Federal
Actions To Address Environmental
Justice in Minority Populations and LowIncome Populations
L. Congressional Review Act
1 For convenience, we refer to ‘‘states’’ in this
rulemaking to collectively mean states and local
permitting authorities.
VerDate Mar<15>2010
18:32 Dec 28, 2010
Jkt 223001
II. Background
A. CAA and Regulatory Context
EPA described the relevant
background information in the proposed
and final rulemaking for what we call
the GHG PSD SIP call or, simply, the
SIP call,2 as well as in what we call the
Tailoring Rule.3 75 FR at 31518–21.
Knowledge of this background
information is presumed and will be
only briefly summarized here.
1. SIP PSD Requirements
In general, under the CAA PSD
program, a stationary source must
obtain a permit prior to undertaking
construction or modification projects
that would result in specified amounts
of new or increased emissions of air
pollutants that are subject to regulation
under other provisions of the CAA. CAA
sections 165(a)(1), 169(1). As we
described in the SIP call and elsewhere,
several CAA provisions, taken together,
mandate that SIPs include PSD
programs that are applicable to any air
pollutant that is subject to regulation
under the CAA, including, as discussed
later in this preamble, GHGs on and
after January 2, 2011. CAA sections
110(a)(2)(C), 110(a)(2)(J), 161.
2. SIP Inadequacy and Corrective Action
The CAA provides a mechanism for
the correction of SIPs with certain types
of inadequacies. CAA section 110(k)(5)
authorizes the Administrator to ‘‘find[ ]
that [a SIP] * * * is substantially
inadequate to * * * comply with any
requirement of this Act,’’ and, based on
that finding, to ‘‘require the State to
revise the [SIP] * * * to correct such
inadequacies.’’ This latter action is
commonly referred to as a ‘‘SIP call.’’ In
addition, this provision provides that
EPA must notify the state of the
substantial inadequacy and authorizes
2 ‘‘Action to Ensure Authority to Issue Permits
under the Prevention of Significant Deterioration
Program to Sources of Greenhouse Gas Emissions:
Finding of Substantial Inadequacy and SIP Call—
Final Rule,’’ 75 FR at 77698, 77700–04 (December
13, 2010) (final SIP call); ‘‘Action to Ensure
Authority to Issue Permits under the Prevention of
Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial
Inadequacy and SIP Call—Proposed Rule,’’ 75 FR
53892, 53896–98 (September 2, 2010) (proposed SIP
call).
3 Prevention of Significant Deterioration and Title
V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR
31514, 31518–21 (June 3, 2010).
PO 00000
Frm 00045
Fmt 4700
Sfmt 4700
81875
EPA to establish a ‘‘reasonable deadline[
] (not to exceed 18 months after the date
of such notice)’’ for the submission of
the corrective SIP revision.
If EPA does not receive the corrective
SIP revision by the deadline, CAA
section 110(c)(1)(A) authorizes EPA to
‘‘find[ ] that [the] State has failed to
make a required submission.’’ Once EPA
makes that finding, CAA section
110(c)(1) requires EPA to ‘‘promulgate a
Federal implementation plan at any
time within 2 years after the [finding]
* * * unless the State corrects the
deficiency, and [EPA] approves the plan
or plan revision, before [EPA]
promulgates such [FIP].’’
B. Recent EPA Regulatory Action
Concerning PSD Requirements for GHGEmitting Sources
In recent months, EPA has taken
several distinct actions related to GHGs
under the CAA. Some of these, in
conjunction with the operation of the
CAA, trigger PSD applicability for GHGemitting sources on and after January 2,
2011, but focus the scope of PSD on the
largest GHG-emitting sources. These
actions include what we call the
Endangerment Finding,4 the Light-Duty
Vehicle Rule,5 the Johnson Memo
Reconsideration,6 and the Tailoring
Rule.
Closely related to this action, EPA
promulgated the PSD GHG SIP call,
under authority of CAA section
110(k)(5). In that action, applicable to 13
states, the Administrator issued a
finding of substantial inadequacy as
well as a SIP call and established a
deadline for submission of the
corrective SIP revision. The deadline
was 12 months after the date of the SIP
call, unless the state indicated to EPA
that it did not object to an earlier
deadline, as early as 3 weeks after the
date of the SIP call. Twelve of the states
so indicated and therefore received an
earlier deadline. 75 FR at 77705.
All 13 states and their deadlines are
listed in table II–1, ‘‘SIP Call States and
SIP Submittal Deadlines’’:
4 ‘‘Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act.’’ 74 FR 66496
(December 15, 2009).
5 ‘‘Light-Duty Vehicle Greenhouse Gas Emission
Standards and Corporate Average Fuel Economy
Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010).
6 ‘‘Interpretation of Regulations that Determine
Pollutants Covered by Clean Air Act Permitting
Programs.’’ 75 FR 17004 (April 2, 2010).
E:\FR\FM\29DER1.SGM
29DER1
81876
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations
TABLE II–1—SIP CALL STATES AND SIP SUBMITTAL DEADLINES
SIP submittal
deadline
State (or area)
Arizona: Pinal County ......................................................................................................................................................................
Arizona: Rest of State (Excludes Maricopa County, Pima County, and Indian Country) ...............................................................
Arkansas ..........................................................................................................................................................................................
California: Sacramento Metropolitan AQMD ...................................................................................................................................
Connecticut ......................................................................................................................................................................................
Florida ..............................................................................................................................................................................................
Idaho ................................................................................................................................................................................................
Kansas .............................................................................................................................................................................................
Kentucky (Jefferson County): Louisville Metro Air Pollution Control District ..................................................................................
Kentucky: Rest of State (Excludes Louisville Metro Air Pollution Control District (Jefferson County)) ..........................................
Nebraska ..........................................................................................................................................................................................
Nevada: Clark County .....................................................................................................................................................................
Oregon .............................................................................................................................................................................................
Texas ...............................................................................................................................................................................................
Wyoming ..........................................................................................................................................................................................
srobinson on DSKHWCL6B1PROD with RULES
The SIP submittal deadlines that the
final SIP call rule established for the
states reflect, in almost all instances, a
recognition by EPA and the states of the
need to move expeditiously to assure
the availability of a permitting
authority. In the SIP call, EPA made
clear that the purpose of establishing the
shorter period as the deadline—for any
state that advised us that it did not
object to that shorter period—is to
accommodate states that wish to ensure
that a FIP is in effect as a backstop to
avoid any gap in PSD permitting. 75 FR
at 77710.
Seven of the 13 SIP-called states
(including 8 of the 15 affected PSD
programs) stated that they did not object
to a SIP submittal deadline of December
22, 2010 (the earliest possible deadline),
75 FR at 77705,7 and those states are the
subject of this final rule.
Also closely related to this action,
EPA proposed a FIP 8 action related to
GHGs. We stated in the proposed FIP
that if any of the states for which we
issued the SIP call did not meet its SIP
submittal deadline, we would
immediately issue a finding of failure to
submit a required SIP revision, under
CAA section 110(c)(1)(A), and
immediately thereafter promulgate a FIP
for the state. We explained that we
would take these actions immediately in
order to minimize any period of time
during which larger-emitting sources
7 More detailed discussion about these seven
states is included in the Supplemental Information
Document prepared by EPA in support of the final
SIP call. The Supplemental Information Document
can be found in the docket for this rulemaking, at
Document ID No. EPA–HQ–OAR–2010–0107–0129.
8 Proposed rule, ‘‘Action To Ensure Authority To
Issue Permits Under the Prevention of Significant
Deterioration Program to Sources of Greenhouse
Gas Emissions: Federal Implementation Plan.’’ 75
FR 53883 (September 2, 2010). The notice can be
found in the docket for this rulemaking, at
Document ID No. EPA–HQ–OAR–2010–0107–0045.
VerDate Mar<15>2010
18:32 Dec 28, 2010
Jkt 223001
may be under an obligation to obtain
PSD permits for their GHGs when they
construct or modify, but no permitting
authority is authorized to issue those
permits. 75 FR at 53889.
III. Final Action: Finding of Failure of
Certain States To Submit Corrective SIP
Revisions
By this final rule, EPA is making a
finding under CAA section 110(c) that
seven states failed to submit a corrective
SIP by December 22, 2010, which was
their SIP submittal deadline, as
established under our SIP call. These
seven states are Arizona, Arkansas,
Florida, Idaho, Kansas, Oregon, and
Wyoming. In Arizona, the finding of
failure applies to two EPA-approved
PSD permit programs—‘‘Pinal County’’
and ‘‘Rest of State (Excludes Maricopa
County, Pima County, and Indian
Country).’’ These seven states were
included in the SIP call because their
EPA-approved SIP PSD programs do not
apply to GHG-emitting sources.
As we stated in our proposed FIP
rulemaking (see 75 FR at 53889), if a
state for which we issue the SIP call
does not meet its SIP submittal
deadline, we would immediately issue a
finding of failure to submit a required
SIP revision under CAA section
110(c)(1)(A). Once we make that
finding, we are required under CAA
section 110(c) to promulgate a FIP
(unless first the state corrects the
deficiency and EPA approves the plan
or plan revision). By a separate action
today, we are promulgating the FIP
immediately.
The making of a finding of failure in
this final rule is important because it is
the prerequisite for the FIP, and the FIP,
in turn, establishes EPA as the
permitting authority for GHG-emitting
sources. Without our acting as that
authority, large GHG-emitting sources in
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
12/22/10
12/22/10
12/22/10
01/31/11
03/01/11
12/22/10
12/22/10
12/22/10
01/01/11
03/31/11
03/01/11
07/01/11
12/22/10
12/01/11
12/22/10
the affected states may be unable to
obtain a PSD permit for their GHG
emissions and therefore may face delays
in undertaking construction or
modification projects. Sources that emit
or plan to emit large amounts of GHGs
will, starting January 2, 2011, be
required to obtain PSD permits before
undertaking new construction or
modification projects, but neither the
states nor, absent the FIP, EPA would be
authorized to issue the permits. With
the FIP, EPA will have the authority to
issue PSD permits by January 2, 2011.
This rule is effective immediately
upon publication in the Federal
Register. Section 553(d) of the
Administrative Procedure Act (APA), 5
U.S.C. 553(d), generally provides that
rules may not take effect earlier than 30
days after they are published in the
Federal Register. However, APA section
553(d)(3) provides an exception when
the agency finds good cause exists for a
rule to take effect in less than 30 days.
We find good cause exists here to
make this rule effective upon
publication because implementing a 30day delayed effective date would
interfere with the Agency’s ability to
ensure that, as of January 2, 2011, there
is a permitting authority authorized to
issue certain major stationary sources in
the affected states the required PSD
permits for GHG emissions. A 30-day
delay in the effective date of this rule
will impede implementation of this rule
and create regulatory confusion. This
rule, establishing that certain states
failed to submit corrective SIP revisions
by their December 22, 2010, deadline, is
necessary so that EPA can promulgate a
FIP for those same states on December
23, 2010. This timing will allow the FIP
to be published and become effective by
the January 2, 2011, date that PSD will
first apply to GHG-emitting sources
under the CAA. If EPA could not meet
E:\FR\FM\29DER1.SGM
29DER1
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations
those dates, for whatever reason, then,
as of January 2, 2011, certain major
stationary sources in the affected states
would be required to obtain PSD
permits for GHG emissions that no
permitting authority would be
authorized to issue. Thus, it would be
impractical to wait 30 days for this rule
to take effect. Moreover, EPA finds that
it is necessary to make this rule effective
upon publication to avoid any economic
harm that the public and the regulated
industry might incur if there is no
permitting authority able to issue PSD
permits for GHG emissions on January
2, 2011.
The purpose of the APA’s 30-day
effective date provision is to give
affected parties time to adjust their
behavior before the final rule takes
effect. Each of the states to which this
rule applies indicated in comment
letters to EPA that they do not object to
those deadlines. Both the states and the
public have been aware that we would
take this approach to this rule for some
time, that is, that we would establish a
SIP submittal deadline as early as
December 22, 2010, so that we could
make a finding of failure to submit and
promulgate a FIP as early as December
23, 2010, in order that the FIP could
take effect by the January 2, 2011, date
that PSD begins to apply to GHGemitting sources. We described this
approach in the proposed SIP call that
was signed and made available to the
public on August 12, 2010, even before
its September 2, 2010, publication date
in the Federal Register. Moreover, the
public was afforded the opportunity to
comment on this approach in the SIP
call proposal. See 75 FR 53892, 53896.
In addition, this rule is not a major
rule under the Congressional Review
Act (CRA). Thus, the 60-day delay in
effective date required for major rules
under the CRA does not apply.
srobinson on DSKHWCL6B1PROD with RULES
IV. Statutory and Executive Order
Reviews
A. Notice and Comment Under the
Administrative Procedure Act (APA)
This is a final EPA action but is not
subject to notice-and-comment
requirements of the Administrative
Procedure Act (APA), 5 U.S.C. 553(b).
EPA believes that because of the limited
time provided to make findings of
failure to submit regarding SIP
submissions, Congress did not intend
such findings to be subject to noticeand-comment rulemaking.
However, to the extent such findings
are subject to notice-and-comment
rulemaking, EPA invokes the good cause
exception pursuant to the APA, 5 U.S.C.
553(b)(3)(B), which excuses the notice-
VerDate Mar<15>2010
18:32 Dec 28, 2010
Jkt 223001
and-comment obligation ‘‘when the
agency for good cause finds (and
incorporates the finding and a brief
statement of reasons therefor in the
rules issued) that notice and public
procedure thereon are impracticable,
unnecessary, or contrary to the public
interest.’’ While the good cause
exception is to be narrowly construed,
Utility Solid Waste Activities Group v.
Environmental Protection Agency, 236
F.3d 749, 754 (DC Cir. 2001), it is also
‘‘an important safety valve to be used
where delay would do real harm.’’ U.S.
Steel Corp. v. U.S. Environmental
Protection Agency, 595 F.2d 207, 214
(5th Cir. 1979). Notice and comment is
impracticable where ‘‘an agency finds
that due and timely execution of its
functions would be impeded by the
notice otherwise required.’’ Utility Solid
Waste Activities Group, 236 F.3d at 754.
Notice and comment is contrary to the
public interest where ‘‘the interest of the
public would be defeated by any
requirement of advance notice.’’ Id. at
755.
Here, notice and comment are
unnecessary because no EPA judgment
is involved in making a nonsubstantive
finding of failure to submit elements of
SIP submissions required by the CAA.
Furthermore, providing notice and
comment would be impracticable
because of the limited time provided
under the statute for making such
determinations. Finally, notice and
comment would be contrary to the
public interest because it would divert
agency resources from the critical
substantive review of complete SIPs.
See 58 FR 51270, 51272, n.17 (October
1, 1993); 59 FR 39832, 39853 (August 4,
1994). In addition, in this case, notice
and comment would be impracticable
and contrary to the public interest for
the same reasons, discussed earlier in
this preamble, why a 30-day effective
date would be impracticable and
contrary to the public interest.
B. 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). This action
issues a finding that certain states failed
to submit corrective SIPs by the
deadline established in EPA’s recently
promulgated SIP call for the same states.
This type of action is exempt from
review under EO 12866.
C. Paperwork Reduction Act
This action does not impose any new
information collection burden.
However, OMB has previously approved
the information collection requirements
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
81877
contained in the existing regulations for
PSD (see, e.g., 40 CFR 52.21) and title
V (see 40 CFR parts 70 and 71) under
the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB control number
2060–0003 and OMB control number
2060–0336, respectively. The OMB
control numbers for EPA’s regulations
in 40 CFR are listed in 40 CFR part 9.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice-and-comment
rulemaking requirements under the
Administrative Procedure Act (APA) or
any other statute. This rule is not
subject to the notice-and-comment
requirement of the APA, because the
Agency has invoked the ‘‘good cause’’
exemption under 5 U.S.C. 553(b). Thus,
this rule is not subject to the RFA.
E. Unfunded Mandates Reform Act
This action contains no federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 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. Therefore, this action
is not subject to the requirements of
sections 202 or 205 of the UMRA.
This action is also not subject to the
requirements of section 203 of the
UMRA because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. This
action does not impose any new
obligations or enforceable duties on any
small governments.
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, as specified in
Executive Order 13132. This action
merely prescribes EPA’s action for states
that do not meet their existing
obligation for PSD SIP submittal. Thus,
Executive Order 13132 does not apply
to this action.
In the spirit of Executive Order 13132,
and consistent with EPA policy to
promote communications between EPA
and state and local governments, EPA
specifically solicited comment on this
action, as part of the FIP proposal, from
state and local officials.
E:\FR\FM\29DER1.SGM
29DER1
81878
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations
G. 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). In this action, EPA is not
addressing any tribal implementation
plans. This action is limited to states
that do not meet their existing
obligation for PSD SIP submittal. Thus,
Executive Order 13175 does not apply
to this action.
Although Executive Order 13175 does
not apply to this final rule, EPA
specifically solicited additional
comment on the proposal for this action
from tribal officials and we received one
comment from a tribal agency.
Additionally, EPA participated in a
conference call on July 29, 2010, with
the National Tribal Air Association
(NTAA).
H. Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets E.O. 13045 (62 FR
19885, April 23, 1997) as applying only
to those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5–501 of
the E.O. has the potential to influence
the regulation. This action is not subject
to E.O. 13045 because it merely
prescribes EPA’s action for states that do
not meet their existing obligation for
PSD SIP submittal.
srobinson on DSKHWCL6B1PROD with RULES
I. 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 a significant regulatory
action under Executive Order 12866.
This action merely prescribes EPA’s
action for states that do not meet their
existing obligation for PSD SIP
submittal.
J. 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
VerDate Mar<15>2010
18:32 Dec 28, 2010
Jkt 223001
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This rulemaking does not involve
technical standards. Therefore, EPA is
not considering the use of any voluntary
consensus standards.
K. Executive Order 12898—Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 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 their programs,
policies, and activities on minority
populations and low-income
populations in the U.S.
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 does
not affect the level of protection
provided to human health or the
environment. This rule merely
prescribes EPA’s action for states that do
not meet their existing obligation for
PSD SIP submittal.
L. Congressional Review Act
The Congressional Review Act, 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 804
exempts from section 801 the following
types of rules: (1) Rules of particular
applicability; (2) rules relating to agency
management or personnel; and (3) rules
of agency organization, procedure, or
practice that do not substantially affect
the rights or obligations of non-agency
parties. 5 U.S. 804(3). EPA is not
required to submit a rule report
regarding this action under section 801
because this is a rule of agency
organization, procedure, or practice that
does not substantially affect the rights or
obligations of non-agency parties.
V. Judicial Review
Under section 307(b)(1) of the Act,
judicial review of this final action is
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
available by filing of a petition for
review in the U.S. Court of Appeals for
the District of Columbia Circuit by
February 28, 2011. Any such judicial
review is limited to only those
objections that are raised with
reasonable specificity in timely
comments. Under section 307(b)(2) of
the Act, the requirements of this final
action may not be challenged later in
civil or criminal proceedings brought by
us to enforce these requirements.
VI. Statutory Authority
The statutory authority for this action
is provided by sections 101, 111, 114,
116, and 301 of the CAA as amended
(42 U.S.C. 7401, 7411, 7414, 7416, and
7601).
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon dioxide,
Carbon dioxide equivalents, Carbon
monoxide, Environmental protection,
Greenhouse gases, Hydrofluorocarbons,
Incorporation by reference,
Intergovernmental relations, Lead,
Methane, Nitrogen dioxide, Nitrous
oxide, Ozone, Particulate matter,
Perfluorocarbons, Reporting and
recordkeeping requirements, Sulfur
hexafluoride, Sulfur oxides, Volatile
organic compounds.
Dated: December 23, 2010.
Gina McCarthy,
Assistant Administrator, Office of Air and
Radiation.
[FR Doc. 2010–32762 Filed 12–28–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2009–0205; FRL–8857–4]
Imazosulfuron; Pesticide Tolerances
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes
tolerances for residues of imazosulfuron
in or on pepper, bell; pepper, non-bell;
rice, grain; and tomato. Valent USA
Corporation requested these tolerances
under the Federal Food, Drug, and
Cosmetic Act (FFDCA).
DATES: This regulation is effective
December 29, 2010. Objections and
requests for hearings must be received
on or before February 28, 2011, and
must be filed in accordance with the
instructions provided in 40 CFR part
178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
SUMMARY:
E:\FR\FM\29DER1.SGM
29DER1
]]>Agencies
[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Rules and Regulations]
[Pages 81874-81878]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32762]
[[Page 81874]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2010-0107; FRL-9244-7]
Action To Ensure Authority To Issue Permits Under the Prevention
of Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Finding of Failure To Submit State Implementation Plan
Revisions Required for Greenhouse Gases
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is making a finding that seven states have failed to
submit revisions to their EPA-approved state implementation plans
(SIPs) to satisfy requirements of the Clean Air Act (CAA) to apply
Prevention of Significant Deterioration (PSD) requirements to
greenhouse gas (GHG)-emitting sources. By notice dated December 13,
2010, EPA issued a ``SIP call'' for these seven, and six other, states,
requiring each state to revise its SIP as necessary to correct the
SIP's failure to apply PSD to such sources and establishing a SIP
submittal deadline for each state. EPA established December 22, 2010,
as the deadline for these seven states. By this action, EPA is making a
finding that the seven states failed to submit the required SIP
revisions by that date. This finding requires EPA to promulgate a
Federal implementation plan (FIP) for these seven states applying PSD
to GHG-emitting sources, and EPA is taking a separate action to
promulgate the FIP immediately. The seven states are Arizona, Arkansas,
Florida, Idaho, Kansas, Oregon, and Wyoming.
DATES: This action is effective on December 29, 2010.
ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2010-0107. 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., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, 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
U.S. Environmental Protection Agency, Air Docket, EPA/DC, EPA West
Building, 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 Air
Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number: (919) 541-3450; fax number: (919) 541-5509; e-mail
address: sutton.lisa@epa.gov.
For information related to a specific state, local, or tribal
permitting authority, please contact the appropriate EPA regional
office:
------------------------------------------------------------------------
Contact for regional
office (person,
EPA regional office mailing address, Permitting authority
telephone number)
------------------------------------------------------------------------
I........................... Dave Conroy, Chief, Connecticut,
Air Programs Massachusetts,
Branch, EPA Region Maine, New
1, 5 Post Office Hampshire, Rhode
Square, Suite 100, Island, and
Boston, MA 02109- Vermont.
3912, (617) 918-
1661.
II.......................... Raymond Werner, New Jersey, New
Chief, Air Programs York, Puerto Rico,
Branch, EPA Region and Virgin Islands.
2, 290 Broadway,
25th Floor, New
York, NY 10007-
1866, (212) 637-
3706.
III......................... Kathleen Cox, Chief, District of
Permits and Columbia, Delaware,
Technical Maryland,
Assessment Branch, Pennsylvania,
EPA Region 3, 1650 Virginia, and West
Arch Street, Virginia.
Philadelphia, PA
19103-2029, (215)
814-2173.
IV.......................... Lynorae Benjamin, Alabama, Florida,
Chief, Regulatory Georgia, Kentucky,
Development Mississippi, North
Section, Air, Carolina, South
Pesticides and Carolina, and
Toxics Management Tennessee.
Division, EPA
Region 4, Atlanta
Federal Center, 61
Forsyth Street,
SW., Atlanta, GA
30303-3104, (404)
562-9033.
V........................... J. Elmer Bortzer, Illinois, Indiana,
Chief, Air Programs Michigan,
Branch (AR-18J), Minnesota, Ohio,
EPA Region 5, 77 and Wisconsin.
West Jackson
Boulevard, Chicago,
IL 60604-3507,
(312) 886-1430.
VI.......................... Jeff Robinson, Arkansas, Louisiana,
Chief, Air Permits New Mexico,
Section, EPA Region Oklahoma, and
6, Fountain Place Texas.
12th Floor, Suite
1200, 1445 Ross
Avenue, Dallas, TX
75202-2733, (214)
665-6435.
VII......................... Mark Smith, Chief, Iowa, Kansas,
Air Permitting and Missouri, and
Compliance Branch, Nebraska.
EPA Region 7, 901
North 5th Street,
Kansas City, KS
66101, (913) 551-
7876.
VIII........................ Carl Daly, Unit Colorado, Montana,
Leader, Air North Dakota, South
Permitting, Dakota, Utah, and
Monitoring & Wyoming.
Modeling Unit, EPA
Region 8, 1595
Wynkoop Street,
Denver, CO 80202-
1129, (303) 312-
6416.
IX.......................... Gerardo Rios, Chief, Arizona; California;
Permits Office, EPA Hawaii and the
Region 9, 75 Pacific Islands;
Hawthorne Street, Indian Country
San Francisco, CA within Region 9 and
94105, (415) 972- Navajo Nation; and
3974. Nevada.
X........................... Nancy Helm, Manager, Alaska, Idaho,
Federal and Oregon, and
Delegated Air Washington.
Programs Unit, EPA
Region 10, 1200
Sixth Avenue, Suite
900, Seattle, WA
98101, (206) 553-
6908.
------------------------------------------------------------------------
[[Page 81875]]
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities affected by this rule include state and local permitting
authorities.\1\ By this action, EPA is making a finding of failure to
submit the required SIPs for seven states (comprising eight state and
local programs) because their EPA-approved SIP PSD programs do not
apply to GHG-emitting sources. The seven states are Arizona, Arkansas,
Florida, Idaho, Kansas, Oregon, and Wyoming. In Arizona, the finding of
failure applies to two EPA-approved PSD permit programs--``Pinal
County'' and ``Rest of State (Excludes Maricopa County, Pima County,
and Indian Country).''
---------------------------------------------------------------------------
\1\ For convenience, we refer to ``states'' in this rulemaking
to collectively mean states and local permitting authorities.
---------------------------------------------------------------------------
B. How is the preamble organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. How is the preamble organized?
II. Background
A. CAA and Regulatory Context
1. SIP PSD Requirements
2. SIP Inadequacy and Corrective Action
B. Recent EPA Regulatory Action Concerning PSD Requirements for
GHG-Emitting Sources
III. Final Action: Finding of Failure of Certain States To Submit
Corrective SIP Revisions
IV. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedure Act
(APA)
B. Executive Order 12866--Regulatory Planning and Review
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform
F. Executive Order 13132--Federalism
G. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045--Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
K. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act
V. Judicial Review
VI. Statutory Authority
II. Background
A. CAA and Regulatory Context
EPA described the relevant background information in the proposed
and final rulemaking for what we call the GHG PSD SIP call or, simply,
the SIP call,\2\ as well as in what we call the Tailoring Rule.\3\ 75
FR at 31518-21. Knowledge of this background information is presumed
and will be only briefly summarized here.
---------------------------------------------------------------------------
\2\ ``Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Final Rule,'' 75 FR at 77698, 77700-04 (December 13, 2010)
(final SIP call); ``Action to Ensure Authority to Issue Permits
under the Prevention of Significant Deterioration Program to Sources
of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and
SIP Call--Proposed Rule,'' 75 FR 53892, 53896-98 (September 2, 2010)
(proposed SIP call).
\3\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514, 31518-21
(June 3, 2010).
---------------------------------------------------------------------------
1. SIP PSD Requirements
In general, under the CAA PSD program, a stationary source must
obtain a permit prior to undertaking construction or modification
projects that would result in specified amounts of new or increased
emissions of air pollutants that are subject to regulation under other
provisions of the CAA. CAA sections 165(a)(1), 169(1). As we described
in the SIP call and elsewhere, several CAA provisions, taken together,
mandate that SIPs include PSD programs that are applicable to any air
pollutant that is subject to regulation under the CAA, including, as
discussed later in this preamble, GHGs on and after January 2, 2011.
CAA sections 110(a)(2)(C), 110(a)(2)(J), 161.
2. SIP Inadequacy and Corrective Action
The CAA provides a mechanism for the correction of SIPs with
certain types of inadequacies. CAA section 110(k)(5) authorizes the
Administrator to ``find[ ] that [a SIP] * * * is substantially
inadequate to * * * comply with any requirement of this Act,'' and,
based on that finding, to ``require the State to revise the [SIP] * * *
to correct such inadequacies.'' This latter action is commonly referred
to as a ``SIP call.'' In addition, this provision provides that EPA
must notify the state of the substantial inadequacy and authorizes EPA
to establish a ``reasonable deadline[ ] (not to exceed 18 months after
the date of such notice)'' for the submission of the corrective SIP
revision.
If EPA does not receive the corrective SIP revision by the
deadline, CAA section 110(c)(1)(A) authorizes EPA to ``find[ ] that
[the] State has failed to make a required submission.'' Once EPA makes
that finding, CAA section 110(c)(1) requires EPA to ``promulgate a
Federal implementation plan at any time within 2 years after the
[finding] * * * unless the State corrects the deficiency, and [EPA]
approves the plan or plan revision, before [EPA] promulgates such
[FIP].''
B. Recent EPA Regulatory Action Concerning PSD Requirements for GHG-
Emitting Sources
In recent months, EPA has taken several distinct actions related to
GHGs under the CAA. Some of these, in conjunction with the operation of
the CAA, trigger PSD applicability for GHG-emitting sources on and
after January 2, 2011, but focus the scope of PSD on the largest GHG-
emitting sources. These actions include what we call the Endangerment
Finding,\4\ the Light-Duty Vehicle Rule,\5\ the Johnson Memo
Reconsideration,\6\ and the Tailoring Rule.
---------------------------------------------------------------------------
\4\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\5\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
\6\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
---------------------------------------------------------------------------
Closely related to this action, EPA promulgated the PSD GHG SIP
call, under authority of CAA section 110(k)(5). In that action,
applicable to 13 states, the Administrator issued a finding of
substantial inadequacy as well as a SIP call and established a deadline
for submission of the corrective SIP revision. The deadline was 12
months after the date of the SIP call, unless the state indicated to
EPA that it did not object to an earlier deadline, as early as 3 weeks
after the date of the SIP call. Twelve of the states so indicated and
therefore received an earlier deadline. 75 FR at 77705.
All 13 states and their deadlines are listed in table II-1, ``SIP
Call States and SIP Submittal Deadlines'':
[[Page 81876]]
Table II-1--SIP Call States and SIP Submittal Deadlines
------------------------------------------------------------------------
SIP submittal
State (or area) deadline
------------------------------------------------------------------------
Arizona: Pinal County................................. 12/22/10
Arizona: Rest of State (Excludes Maricopa County, Pima 12/22/10
County, and Indian Country)..........................
Arkansas.............................................. 12/22/10
California: Sacramento Metropolitan AQMD.............. 01/31/11
Connecticut........................................... 03/01/11
Florida............................................... 12/22/10
Idaho................................................. 12/22/10
Kansas................................................ 12/22/10
Kentucky (Jefferson County): Louisville Metro Air 01/01/11
Pollution Control District...........................
Kentucky: Rest of State (Excludes Louisville Metro Air 03/31/11
Pollution Control District (Jefferson County)).......
Nebraska.............................................. 03/01/11
Nevada: Clark County.................................. 07/01/11
Oregon................................................ 12/22/10
Texas................................................. 12/01/11
Wyoming............................................... 12/22/10
------------------------------------------------------------------------
The SIP submittal deadlines that the final SIP call rule
established for the states reflect, in almost all instances, a
recognition by EPA and the states of the need to move expeditiously to
assure the availability of a permitting authority. In the SIP call, EPA
made clear that the purpose of establishing the shorter period as the
deadline--for any state that advised us that it did not object to that
shorter period--is to accommodate states that wish to ensure that a FIP
is in effect as a backstop to avoid any gap in PSD permitting. 75 FR at
77710.
Seven of the 13 SIP-called states (including 8 of the 15 affected
PSD programs) stated that they did not object to a SIP submittal
deadline of December 22, 2010 (the earliest possible deadline), 75 FR
at 77705,\7\ and those states are the subject of this final rule.
---------------------------------------------------------------------------
\7\ More detailed discussion about these seven states is
included in the Supplemental Information Document prepared by EPA in
support of the final SIP call. The Supplemental Information Document
can be found in the docket for this rulemaking, at Document ID No.
EPA-HQ-OAR-2010-0107-0129.
---------------------------------------------------------------------------
Also closely related to this action, EPA proposed a FIP \8\ action
related to GHGs. We stated in the proposed FIP that if any of the
states for which we issued the SIP call did not meet its SIP submittal
deadline, we would immediately issue a finding of failure to submit a
required SIP revision, under CAA section 110(c)(1)(A), and immediately
thereafter promulgate a FIP for the state. We explained that we would
take these actions immediately in order to minimize any period of time
during which larger-emitting sources may be under an obligation to
obtain PSD permits for their GHGs when they construct or modify, but no
permitting authority is authorized to issue those permits. 75 FR at
53889.
---------------------------------------------------------------------------
\8\ Proposed rule, ``Action To Ensure Authority To Issue Permits
Under the Prevention of Significant Deterioration Program to Sources
of Greenhouse Gas Emissions: Federal Implementation Plan.'' 75 FR
53883 (September 2, 2010). The notice can be found in the docket for
this rulemaking, at Document ID No. EPA-HQ-OAR-2010-0107-0045.
---------------------------------------------------------------------------
III. Final Action: Finding of Failure of Certain States To Submit
Corrective SIP Revisions
By this final rule, EPA is making a finding under CAA section
110(c) that seven states failed to submit a corrective SIP by December
22, 2010, which was their SIP submittal deadline, as established under
our SIP call. These seven states are Arizona, Arkansas, Florida, Idaho,
Kansas, Oregon, and Wyoming. In Arizona, the finding of failure applies
to two EPA-approved PSD permit programs--``Pinal County'' and ``Rest of
State (Excludes Maricopa County, Pima County, and Indian Country).''
These seven states were included in the SIP call because their EPA-
approved SIP PSD programs do not apply to GHG-emitting sources.
As we stated in our proposed FIP rulemaking (see 75 FR at 53889),
if a state for which we issue the SIP call does not meet its SIP
submittal deadline, we would immediately issue a finding of failure to
submit a required SIP revision under CAA section 110(c)(1)(A). Once we
make that finding, we are required under CAA section 110(c) to
promulgate a FIP (unless first the state corrects the deficiency and
EPA approves the plan or plan revision). By a separate action today, we
are promulgating the FIP immediately.
The making of a finding of failure in this final rule is important
because it is the prerequisite for the FIP, and the FIP, in turn,
establishes EPA as the permitting authority for GHG-emitting sources.
Without our acting as that authority, large GHG-emitting sources in the
affected states may be unable to obtain a PSD permit for their GHG
emissions and therefore may face delays in undertaking construction or
modification projects. Sources that emit or plan to emit large amounts
of GHGs will, starting January 2, 2011, be required to obtain PSD
permits before undertaking new construction or modification projects,
but neither the states nor, absent the FIP, EPA would be authorized to
issue the permits. With the FIP, EPA will have the authority to issue
PSD permits by January 2, 2011.
This rule is effective immediately upon publication in the Federal
Register. Section 553(d) of the Administrative Procedure Act (APA), 5
U.S.C. 553(d), generally provides that rules may not take effect
earlier than 30 days after they are published in the Federal Register.
However, APA section 553(d)(3) provides an exception when the agency
finds good cause exists for a rule to take effect in less than 30 days.
We find good cause exists here to make this rule effective upon
publication because implementing a 30-day delayed effective date would
interfere with the Agency's ability to ensure that, as of January 2,
2011, there is a permitting authority authorized to issue certain major
stationary sources in the affected states the required PSD permits for
GHG emissions. A 30-day delay in the effective date of this rule will
impede implementation of this rule and create regulatory confusion.
This rule, establishing that certain states failed to submit corrective
SIP revisions by their December 22, 2010, deadline, is necessary so
that EPA can promulgate a FIP for those same states on December 23,
2010. This timing will allow the FIP to be published and become
effective by the January 2, 2011, date that PSD will first apply to
GHG-emitting sources under the CAA. If EPA could not meet
[[Page 81877]]
those dates, for whatever reason, then, as of January 2, 2011, certain
major stationary sources in the affected states would be required to
obtain PSD permits for GHG emissions that no permitting authority would
be authorized to issue. Thus, it would be impractical to wait 30 days
for this rule to take effect. Moreover, EPA finds that it is necessary
to make this rule effective upon publication to avoid any economic harm
that the public and the regulated industry might incur if there is no
permitting authority able to issue PSD permits for GHG emissions on
January 2, 2011.
The purpose of the APA's 30-day effective date provision is to give
affected parties time to adjust their behavior before the final rule
takes effect. Each of the states to which this rule applies indicated
in comment letters to EPA that they do not object to those deadlines.
Both the states and the public have been aware that we would take this
approach to this rule for some time, that is, that we would establish a
SIP submittal deadline as early as December 22, 2010, so that we could
make a finding of failure to submit and promulgate a FIP as early as
December 23, 2010, in order that the FIP could take effect by the
January 2, 2011, date that PSD begins to apply to GHG-emitting sources.
We described this approach in the proposed SIP call that was signed and
made available to the public on August 12, 2010, even before its
September 2, 2010, publication date in the Federal Register. Moreover,
the public was afforded the opportunity to comment on this approach in
the SIP call proposal. See 75 FR 53892, 53896.
In addition, this rule is not a major rule under the Congressional
Review Act (CRA). Thus, the 60-day delay in effective date required for
major rules under the CRA does not apply.
IV. Statutory and Executive Order Reviews
A. Notice and Comment Under the Administrative Procedure Act (APA)
This is a final EPA action but is not subject to notice-and-comment
requirements of the Administrative Procedure Act (APA), 5 U.S.C.
553(b). EPA believes that because of the limited time provided to make
findings of failure to submit regarding SIP submissions, Congress did
not intend such findings to be subject to notice-and-comment
rulemaking.
However, to the extent such findings are subject to notice-and-
comment rulemaking, EPA invokes the good cause exception pursuant to
the APA, 5 U.S.C. 553(b)(3)(B), which excuses the notice-and-comment
obligation ``when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' While the good cause
exception is to be narrowly construed, Utility Solid Waste Activities
Group v. Environmental Protection Agency, 236 F.3d 749, 754 (DC Cir.
2001), it is also ``an important safety valve to be used where delay
would do real harm.'' U.S. Steel Corp. v. U.S. Environmental Protection
Agency, 595 F.2d 207, 214 (5th Cir. 1979). Notice and comment is
impracticable where ``an agency finds that due and timely execution of
its functions would be impeded by the notice otherwise required.''
Utility Solid Waste Activities Group, 236 F.3d at 754. Notice and
comment is contrary to the public interest where ``the interest of the
public would be defeated by any requirement of advance notice.'' Id. at
755.
Here, notice and comment are unnecessary because no EPA judgment is
involved in making a nonsubstantive finding of failure to submit
elements of SIP submissions required by the CAA. Furthermore, providing
notice and comment would be impracticable because of the limited time
provided under the statute for making such determinations. Finally,
notice and comment would be contrary to the public interest because it
would divert agency resources from the critical substantive review of
complete SIPs. See 58 FR 51270, 51272, n.17 (October 1, 1993); 59 FR
39832, 39853 (August 4, 1994). In addition, in this case, notice and
comment would be impracticable and contrary to the public interest for
the same reasons, discussed earlier in this preamble, why a 30-day
effective date would be impracticable and contrary to the public
interest.
B. 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).
This action issues a finding that certain states failed to submit
corrective SIPs by the deadline established in EPA's recently
promulgated SIP call for the same states. This type of action is exempt
from review under EO 12866.
C. Paperwork Reduction Act
This action does not impose any new information collection burden.
However, OMB has previously approved the information collection
requirements contained in the existing regulations for PSD (see, e.g.,
40 CFR 52.21) and title V (see 40 CFR parts 70 and 71) under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0003 and OMB control number 2060-
0336, respectively. The OMB control numbers for EPA's regulations in 40
CFR are listed in 40 CFR part 9.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act (APA) or any other statute. This rule is not subject to
the notice-and-comment requirement of the APA, because the Agency has
invoked the ``good cause'' exemption under 5 U.S.C. 553(b). Thus, this
rule is not subject to the RFA.
E. Unfunded Mandates Reform Act
This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 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. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203
of the UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action does
not impose any new obligations or enforceable duties on any small
governments.
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, as
specified in Executive Order 13132. This action merely prescribes EPA's
action for states that do not meet their existing obligation for PSD
SIP submittal. Thus, Executive Order 13132 does not apply to this
action.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicited comment on this action, as part
of the FIP proposal, from state and local officials.
[[Page 81878]]
G. 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). In this action,
EPA is not addressing any tribal implementation plans. This action is
limited to states that do not meet their existing obligation for PSD
SIP submittal. Thus, Executive Order 13175 does not apply to this
action.
Although Executive Order 13175 does not apply to this final rule,
EPA specifically solicited additional comment on the proposal for this
action from tribal officials and we received one comment from a tribal
agency. Additionally, EPA participated in a conference call on July 29,
2010, with the National Tribal Air Association (NTAA).
H. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets E.O. 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the E.O. has the
potential to influence the regulation. This action is not subject to
E.O. 13045 because it merely prescribes EPA's action for states that do
not meet their existing obligation for PSD SIP submittal.
I. 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 a
significant regulatory action under Executive Order 12866. This action
merely prescribes EPA's action for states that do not meet their
existing obligation for PSD SIP submittal.
J. 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 rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
K. Executive Order 12898--Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 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 their programs,
policies, and activities on minority populations and low-income
populations in the U.S.
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 does not
affect the level of protection provided to human health or the
environment. This rule merely prescribes EPA's action for states that
do not meet their existing obligation for PSD SIP submittal.
L. Congressional Review Act
The Congressional Review Act, 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 804 exempts from section 801 the following types
of rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties. 5 U.S. 804(3). EPA is not required
to submit a rule report regarding this action under section 801 because
this is a rule of agency organization, procedure, or practice that does
not substantially affect the rights or obligations of non-agency
parties.
V. Judicial Review
Under section 307(b)(1) of the Act, judicial review of this final
action is available by filing of a petition for review in the U.S.
Court of Appeals for the District of Columbia Circuit by February 28,
2011. Any such judicial review is limited to only those objections that
are raised with reasonable specificity in timely comments. Under
section 307(b)(2) of the Act, the requirements of this final action may
not be challenged later in civil or criminal proceedings brought by us
to enforce these requirements.
VI. Statutory Authority
The statutory authority for this action is provided by sections
101, 111, 114, 116, and 301 of the CAA as amended (42 U.S.C. 7401,
7411, 7414, 7416, and 7601).
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon dioxide, Carbon dioxide equivalents,
Carbon monoxide, Environmental protection, Greenhouse gases,
Hydrofluorocarbons, Incorporation by reference, Intergovernmental
relations, Lead, Methane, Nitrogen dioxide, Nitrous oxide, Ozone,
Particulate matter, Perfluorocarbons, Reporting and recordkeeping
requirements, Sulfur hexafluoride, Sulfur oxides, Volatile organic
compounds.
Dated: December 23, 2010.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2010-32762 Filed 12-28-10; 8:45 am]
BILLING CODE 6560-50-P
