Industrial, Commercial, and Institutional Boilers and Process Heaters and Commercial and Industrial Solid Waste Incineration Units, 28662-28664 [2011-12308]
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28662
Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations
a chance to comment on EPA’s
determination after the effective date,
and EPA will consider any comments
received in determining whether to
reverse such action.
EPA believes that notice-andcomment rulemaking before the
effective date of this action is
impracticable and contrary to the public
interest. EPA has reviewed the State’s
submittal and, through its proposed
action, is indicating that it is more likely
than not that the State is no longer
obligated to submit the plan that was
the basis for the finding that started the
sanctions clocks. Therefore, it is not in
the public interest to impose sanctions.
Moreover, it would be impracticable to
go through notice-and-comment
rulemaking on a finding that the State
no longer is required to submit the plan
prior to the rulemaking approving the
State’s termination determination.
Therefore, EPA believes that it is
necessary to use the interim final
rulemaking process to defer sanctions
while EPA completes its rulemaking
process on the approvability of the
State’s submittal. Moreover, with
respect to the effective date of this
action, EPA is invoking the good cause
exception to the 30-day notice
requirement of the APA because the
purpose of this notice is to relieve a
restriction (5 U.S.C. 553(d)(1)).
Note that today’s action has no impact
on the January 5, 2010 (75 FR 232)
findings regarding the Southeast Desert
and the Los Angeles-South Coast Air
Basin.
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III. Statutory and Executive Order
Reviews
This action defers Federal sanctions
and imposes no additional
requirements.
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is
not a ‘‘significant regulatory action’’ and
therefore is not subject to review by the
Office of Management and Budget.
This action is not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001) because it is
not a significant regulatory action.
The administrator certifies that this
action will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.).
This rule does not contain any
unfunded mandate or significantly or
uniquely affect small governments, as
described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4).
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This rule does not have Tribal
implications because it will not have a
substantial direct effect on one or more
Indian Tribes, 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 by Executive Order 13175
(65 FR 67249, November 9, 2000).
This action does not have Federalism
implications because it does 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 (64 FR 43255,
August 10, 1999).
This rule is not subject to Executive
Order 13045, ‘‘Protection of Children
from Environmental Health Risks and
Safety Risks’’ (62 FR 19885, April 23,
1997), because it is not economically
significant.
The requirements of section 12(d) of
the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272) do not apply to this rule because
it imposes no standards.
This rule does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
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 to Congress and the
Comptroller General. However, section
808 provides that any rule for which the
issuing agency for good cause finds that
notice and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest, shall take effect at
such time as the agency promulgating
the rule determines. 5 U.S.C. 808(2).
EPA has made such a good cause
finding, including the reasons therefore,
and established an effective date of May
18, 2011. 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. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This rule is not a ‘‘major rule’’ as defined
by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by July 18, 2011. Filing a petition
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for reconsideration by the Administrator
of this final rule does not affect the
finality of this rule for the purpose of
judicial review nor does it extend the
time within which 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, Air
pollution control, Incorporation by
reference, Intergovernmental
regulations, Ozone, Reporting and
recordkeeping requirements.
Dated: May 9, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2011–12062 Filed 5–17–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 60 and 63
[EPA–HQ–OAR–2002–0058; EPA–HQ–2003–
0119; FRL–9308–6]
RIN 2060–AQ25; 2060–AO12
Industrial, Commercial, and
Institutional Boilers and Process
Heaters and Commercial and Industrial
Solid Waste Incineration Units
Environmental Protection
Agency (EPA).
ACTION: Final rules; Delay of effective
dates.
AGENCY:
The EPA is delaying the
effective dates for the final rules titled
‘‘National Emission Standards for
Hazardous Air Pollutants for Major
Sources: Industrial, Commercial, and
Institutional Boilers and Process
Heaters’’ and ‘‘Standards of Performance
for New Sources and Emission
Guidelines for Existing Sources:
Commercial and Industrial Solid Waste
Incineration Units’’ under the authority
of the Administrative Procedure Act
(APA) until the proceedings for judicial
review of these rules are completed or
the EPA completes its reconsideration of
the rules, whichever is earlier.
DATES: The effective dates of the final
rules published in the Federal Register
on March 21, 2011 (76 FR 15608 and 76
FR 15704), are delayed until such time
as judicial review is no longer pending
or until the EPA completes its
reconsideration of the rules, whichever
is earlier. The Director of the Federal
Register has reviewed certain
SUMMARY:
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Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations
publications listed in these final rules
for incorporation by reference approval.
That approval is delayed until such time
as the proceedings for judicial review of
these rules are completed or the EPA
completes its reconsideration of the
rules, whichever is earlier. The EPA will
publish in the Federal Register
announcing the effective dates and the
incorporation by reference approvals
once delay is no longer necessary.
ADDRESSES: Docket: The final rules, the
petitions for reconsideration, and all
other documents in the record for the
rulemakings are in Docket ID. No. EPA–
HQ–OAR–2002–0058 and EPA–HQ–
OAR–2003–0119. All documents in the
dockets 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,
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’s Docket Center, Public Reading
Room, EPA West Building, Room 3334,
1301 Constitution Avenue, NW.,
Washington, DC 20004. This Docket
Facility 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) 566–1741.
FOR FURTHER INFORMATION CONTACT:
‘‘National Emission Standards for
Hazardous Air Pollutants for Major
Sources: Industrial, Commercial, and
Institutional Boilers and Process
Heaters’’: Mr. Brian Shrager, Energy
Strategies Group, Sector Policies and
Programs Division, Office of Air Quality
Planning and Standards (D243–01), U.S.
Environmental Protection Agency,
Research Triangle Park, NC 27711,
telephone (919) 541–7689, fax number
(919) 541–5450, e-mail address:
shrager.brian@epa.gov. ‘‘Standards of
Performance for New Sources and
Emission Guidelines for Existing
Sources: Commercial and Industrial
Solid Waste Incineration Units’’: Ms.
Toni Jones, Fuels and Incineration
Group, Sector Policies and Programs
Division, Office of Air Quality Planning
and Standards (E143–03), U.S.
Environmental Protection Agency,
Research Triangle Park, NC 27711,
telephone (919) 541–0316, fax number
(919) 541–3470, e-mail address:
jones.toni@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. Background
On March 21, 2011, the EPA issued a
final rule to regulate emissions of
hazardous air pollutants (HAP) from
industrial, commercial, and institutional
boilers and process heaters located at
major sources of HAP emissions (the
‘‘Major Source Boiler MACT’’). On the
same date, the EPA issued a final rule
to regulate emissions of certain air
pollutants from commercial and
industrial solid waste incineration units
(the ‘‘CISWI Rule’’). For further
information on the Major Source Boiler
MACT, see 76 FR 15608 (March 21,
2011). For further information on the
CISWI Rule, see 76 FR 15704 (March 21,
2011). In the March 21 notices, the EPA
established an effective date of May 20,
2011, for each rule.
On the same day the rules were
issued, the EPA also published a notice
explaining that the Agency was in the
process of developing a notice
proposing reconsideration of certain
aspects of both rules. 76 FR 15267. In
that notice, the EPA explained that the
proposed reconsideration would
address issues on which the EPA
believes further opportunity for public
comment is appropriate, as well as any
provisions of the rules that the EPA
believes warrant modification after
further consideration of the data and
comments already received. The EPA
has received petitions from a number of
interested parties seeking
reconsideration of both rules. The
petitions identify specific issues that the
EPA is being asked to reconsider. The
EPA intends to initiate a reconsideration
process for both rules, as explained
above. The EPA will issue a notice of
proposed reconsideration of each rule
that identifies the specific issue or
issues raised in the petitions on which
the Agency is granting reconsideration.
The EPA understands that members of
the public may wish to submit
additional data and information to
inform the EPA’s proposed
reconsideration, and the Agency will
consider any additional information
submitted in time to do so. Given the
anticipated schedule for the
reconsideration process, we request that
any additional data and information be
provided to the EPA by July 15, 2011,
to allow the Agency to fully consider it.
The EPA has also received petitions
for judicial review of the Major Source
Boiler MACT from the United States
Sugar Corporation as well as from a
coalition of industry groups. The EPA
has received a petition for judicial
review of the CISWI Rule from a
coalition of industry groups as well.
Under section 705 of the APA, ‘‘an
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28663
agency * * * may postpone the
effective date of [an] action taken by it
pending judicial review.’’ The provision
requires that the Agency find that
justice requires postponing the action,
that the action has not gone into effect,
and that litigation is pending. As
described above, neither the Major
Source Boiler MACT nor the CISWI
Rule has gone into effect and petitions
for judicial review of both rules have
been filed.
We find that justice requires
postponing the effectiveness of these
rules. As explained in the March 21,
2011, notice, EPA has identified several
issues in the final rules which it intends
to reconsider because we believe the
public did not have a sufficient
opportunity to comment on certain
revisions EPA made to the proposed
rules. These issues include revisions to
the proposed subcategories and
revisions to some of the proposed
emissions limits. In addition, EPA
received data before finalizing both
rules but was unable to incorporate that
data into the final rules given the court
deadline for issuing the rules, which the
Agency was unable to extend. EPA also
notes thousands of facilities across
multiple, diverse industries will need to
begin to make major compliance
investments soon, in light of the
pressing compliance deadlines. These
investments may not be reversible if the
standards are in fact revised following
reconsideration and full evaluation of
all relevant data.
Finally, the EPA notes that it is
delaying the effective date of the Major
Source Boiler MACT and the CISWI
Rule pursuant to the APA, rather than
section 307(d)(7)(B) of the Clean Air
Act. As explained above, the APA
authorizes the EPA to find that justice
requires postponing the effective date of
a rule when litigation is pending. In
contrast, the Clean Air Act authorizes
the EPA to stay the effectiveness of a
rule for three months if the
Administrator has convened a
proceeding to reconsider the rule. The
EPA further notes that section 307(d) of
the Act expressly states that it is
intended to replace only sections 553–
557 of the APA (except as otherwise
provided in section 307(d)), and does
not state that it replaces section 705 of
the APA. Therefore, the EPA has the
discretion to decide whether it is
appropriate to delay the effective date of
a rule under either provision, based on
the specific facts and circumstances
before the Agency. Since petitions for
judicial review of both the Major Source
Boiler MACT and the CISWI Rule have
been filed, and, as explained above,
justice requires a delay of the effective
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28664
Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations
dates, it is reasonable for the EPA to
exercise its authority to delay the
effective dates of the Major Source
Boiler MACT and the CISWI Rule under
the APA for a period that exceeds three
months.
II. Issuance of a Stay and Delay of
Effective Date
Pursuant to section 705 of the APA,
the EPA hereby postpones the
effectiveness of the Major Source Boiler
MACT and the CISWI Rule until the
proceedings for judicial review of these
rules are complete or the EPA completes
its reconsideration of the rules,
whichever is earlier. By this action, we
are delaying the effective date of both
rules, published in the Federal Register
on March 21, 2011 (76 FR 15608 and 76
FR 15704). The delay of the effective
date of the CISWI Rule applies only to
those provisions issued on March 21,
2011, and not to any provisions of 40
CFR part 60, subparts CCCC and DDDD,
in place prior to that date. This delay of
effectiveness will remain in place until
the proceedings for judicial review are
completed or the EPA completes its
reconsideration of the rules, whichever
is earlier, and the Agency publishes a
notice in the Federal Register
announcing that the rules are in effect.
List of Subjects
40 CFR Part 60
Environmental protection,
Administrative practice and procedure,
Air pollution control, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements.
40 CFR Part 63
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Environmental protection,
Administrative practice and procedure,
Air pollution control, Hazardous
substances, Incorporation by reference,
Intergovernmental relations, Reporting
and recordkeeping requirements.
For the reasons set forth above, under
the authority at 7 U.S.C. 705, the
effective dates of FRL 9272–8, 76 FR
15608 (March 21, 2011), and FRL 9273–
4, 76 FR 15704 (March 21, 2011) are
delayed until further notice.
Dated: May 16, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011–12308 Filed 5–17–11; 8:45 am]
BILLING CODE 6560–50–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 63
[OAR–2004–0080, FRL–9306–8]
RIN 2060–AF00
Method 301—Field Validation of
Pollutant Measurement Methods From
Various Waste Media
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This action amends EPA’s
Method 301, Field Validation of
Pollutant Measurement Methods from
Various Waste Media. We revised the
procedures in Method 301 based on our
experience in applying the method and
to correct errors that were brought to our
attention. The revised Method 301 is
more flexible, less expensive, and easier
to use. This action finalizes
amendments to Method 301 after
considering comments received on the
proposed rule published in the Federal
Register on December 22, 2004.
DATES: This final rule is effective on
May 18, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2004–0080. 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
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically at https://
www.regulations.gov or in hard copy at
the Air Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Avenue,
NW., Washington, DC. The Docket
Facility and the Public Reading Room
are 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.
Lula H. Melton, Office of Air Quality
Planning and Standards, Air Quality
Assessment Division, Measurement
Technology Group (E143–02), U.S.
Environmental Protection Agency,
Research Triangle Park, North Carolina
27711; telephone number: (919) 541–
2910; fax number: (919) 541–0516;
e-mail address: melton.lula@epa.gov.
SUMMARY:
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SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
A. Does this action apply to me?
B. Where can I obtain a copy of this action?
C. Judicial Review
II. Background
III. Summary of the Final Method
IV. Significant Comments Received on the
Proposed Amendments to Method 301
A. Applicability
B. Reference Material
C. Validation Testing Over a Broad Range
of Concentrations and Extended Period
of Time
D. Performance Audit
E. Sample Stability Procedures
F. Bias and Precision
G. Limit of Detection
H. Critical Values of t for the Two-Tailed
95 Percent Confidence Limit
I. Paired Sampling Procedure
J. Standard Deviation
V. Statutory and Executive Order Reviews
A. Executive Order 12866—Regulatory
Planning and Review and Executive
Order 13563—Improving Regulation and
Regulatory 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
I. General Information
A. Does this action apply to me?
Method 301 affects/applies to you if
you want to propose a new or
alternative test method to meet an EPA
compliance requirement.
B. Where can I obtain a copy of this
action?
In addition to being available in the
docket, an electronic copy of this rule
will also be available on the Worldwide
Web (www) through the Technology
Transfer Network (TTN). Following the
Administrator’s signature, a copy of the
final rule will be placed on the TTN’s
policy and guidance page for newly
proposed or promulgated rules at
https://www.epa.gov/ttn/oarpg. The TTN
provides information and technology
exchange in various areas of air
pollution control. A redline strikeout
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]]>Agencies
[Federal Register Volume 76, Number 96 (Wednesday, May 18, 2011)]
[Rules and Regulations]
[Pages 28662-28664]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12308]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 60 and 63
[EPA-HQ-OAR-2002-0058; EPA-HQ-2003-0119; FRL-9308-6]
RIN 2060-AQ25; 2060-AO12
Industrial, Commercial, and Institutional Boilers and Process
Heaters and Commercial and Industrial Solid Waste Incineration Units
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rules; Delay of effective dates.
-----------------------------------------------------------------------
SUMMARY: The EPA is delaying the effective dates for the final rules
titled ``National Emission Standards for Hazardous Air Pollutants for
Major Sources: Industrial, Commercial, and Institutional Boilers and
Process Heaters'' and ``Standards of Performance for New Sources and
Emission Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration Units'' under the authority of the
Administrative Procedure Act (APA) until the proceedings for judicial
review of these rules are completed or the EPA completes its
reconsideration of the rules, whichever is earlier.
DATES: The effective dates of the final rules published in the Federal
Register on March 21, 2011 (76 FR 15608 and 76 FR 15704), are delayed
until such time as judicial review is no longer pending or until the
EPA completes its reconsideration of the rules, whichever is earlier.
The Director of the Federal Register has reviewed certain
[[Page 28663]]
publications listed in these final rules for incorporation by reference
approval. That approval is delayed until such time as the proceedings
for judicial review of these rules are completed or the EPA completes
its reconsideration of the rules, whichever is earlier. The EPA will
publish in the Federal Register announcing the effective dates and the
incorporation by reference approvals once delay is no longer necessary.
ADDRESSES: Docket: The final rules, the petitions for reconsideration,
and all other documents in the record for the rulemakings are in Docket
ID. No. EPA-HQ-OAR-2002-0058 and EPA-HQ-OAR-2003-0119. All documents in
the dockets 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, 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's Docket
Center, Public Reading Room, EPA West Building, Room 3334, 1301
Constitution Avenue, NW., Washington, DC 20004. This Docket Facility 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)
566-1741.
FOR FURTHER INFORMATION CONTACT: ``National Emission Standards for
Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters'': Mr. Brian Shrager, Energy
Strategies Group, Sector Policies and Programs Division, Office of Air
Quality Planning and Standards (D243-01), U.S. Environmental Protection
Agency, Research Triangle Park, NC 27711, telephone (919) 541-7689, fax
number (919) 541-5450, e-mail address: shrager.brian@epa.gov.
``Standards of Performance for New Sources and Emission Guidelines for
Existing Sources: Commercial and Industrial Solid Waste Incineration
Units'': Ms. Toni Jones, Fuels and Incineration Group, Sector Policies
and Programs Division, Office of Air Quality Planning and Standards
(E143-03), U.S. Environmental Protection Agency, Research Triangle
Park, NC 27711, telephone (919) 541-0316, fax number (919) 541-3470, e-
mail address: jones.toni@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 21, 2011, the EPA issued a final rule to regulate
emissions of hazardous air pollutants (HAP) from industrial,
commercial, and institutional boilers and process heaters located at
major sources of HAP emissions (the ``Major Source Boiler MACT''). On
the same date, the EPA issued a final rule to regulate emissions of
certain air pollutants from commercial and industrial solid waste
incineration units (the ``CISWI Rule''). For further information on the
Major Source Boiler MACT, see 76 FR 15608 (March 21, 2011). For further
information on the CISWI Rule, see 76 FR 15704 (March 21, 2011). In the
March 21 notices, the EPA established an effective date of May 20,
2011, for each rule.
On the same day the rules were issued, the EPA also published a
notice explaining that the Agency was in the process of developing a
notice proposing reconsideration of certain aspects of both rules. 76
FR 15267. In that notice, the EPA explained that the proposed
reconsideration would address issues on which the EPA believes further
opportunity for public comment is appropriate, as well as any
provisions of the rules that the EPA believes warrant modification
after further consideration of the data and comments already received.
The EPA has received petitions from a number of interested parties
seeking reconsideration of both rules. The petitions identify specific
issues that the EPA is being asked to reconsider. The EPA intends to
initiate a reconsideration process for both rules, as explained above.
The EPA will issue a notice of proposed reconsideration of each rule
that identifies the specific issue or issues raised in the petitions on
which the Agency is granting reconsideration. The EPA understands that
members of the public may wish to submit additional data and
information to inform the EPA's proposed reconsideration, and the
Agency will consider any additional information submitted in time to do
so. Given the anticipated schedule for the reconsideration process, we
request that any additional data and information be provided to the EPA
by July 15, 2011, to allow the Agency to fully consider it.
The EPA has also received petitions for judicial review of the
Major Source Boiler MACT from the United States Sugar Corporation as
well as from a coalition of industry groups. The EPA has received a
petition for judicial review of the CISWI Rule from a coalition of
industry groups as well. Under section 705 of the APA, ``an agency * *
* may postpone the effective date of [an] action taken by it pending
judicial review.'' The provision requires that the Agency find that
justice requires postponing the action, that the action has not gone
into effect, and that litigation is pending. As described above,
neither the Major Source Boiler MACT nor the CISWI Rule has gone into
effect and petitions for judicial review of both rules have been filed.
We find that justice requires postponing the effectiveness of these
rules. As explained in the March 21, 2011, notice, EPA has identified
several issues in the final rules which it intends to reconsider
because we believe the public did not have a sufficient opportunity to
comment on certain revisions EPA made to the proposed rules. These
issues include revisions to the proposed subcategories and revisions to
some of the proposed emissions limits. In addition, EPA received data
before finalizing both rules but was unable to incorporate that data
into the final rules given the court deadline for issuing the rules,
which the Agency was unable to extend. EPA also notes thousands of
facilities across multiple, diverse industries will need to begin to
make major compliance investments soon, in light of the pressing
compliance deadlines. These investments may not be reversible if the
standards are in fact revised following reconsideration and full
evaluation of all relevant data.
Finally, the EPA notes that it is delaying the effective date of
the Major Source Boiler MACT and the CISWI Rule pursuant to the APA,
rather than section 307(d)(7)(B) of the Clean Air Act. As explained
above, the APA authorizes the EPA to find that justice requires
postponing the effective date of a rule when litigation is pending. In
contrast, the Clean Air Act authorizes the EPA to stay the
effectiveness of a rule for three months if the Administrator has
convened a proceeding to reconsider the rule. The EPA further notes
that section 307(d) of the Act expressly states that it is intended to
replace only sections 553-557 of the APA (except as otherwise provided
in section 307(d)), and does not state that it replaces section 705 of
the APA. Therefore, the EPA has the discretion to decide whether it is
appropriate to delay the effective date of a rule under either
provision, based on the specific facts and circumstances before the
Agency. Since petitions for judicial review of both the Major Source
Boiler MACT and the CISWI Rule have been filed, and, as explained
above, justice requires a delay of the effective
[[Page 28664]]
dates, it is reasonable for the EPA to exercise its authority to delay
the effective dates of the Major Source Boiler MACT and the CISWI Rule
under the APA for a period that exceeds three months.
II. Issuance of a Stay and Delay of Effective Date
Pursuant to section 705 of the APA, the EPA hereby postpones the
effectiveness of the Major Source Boiler MACT and the CISWI Rule until
the proceedings for judicial review of these rules are complete or the
EPA completes its reconsideration of the rules, whichever is earlier.
By this action, we are delaying the effective date of both rules,
published in the Federal Register on March 21, 2011 (76 FR 15608 and 76
FR 15704). The delay of the effective date of the CISWI Rule applies
only to those provisions issued on March 21, 2011, and not to any
provisions of 40 CFR part 60, subparts CCCC and DDDD, in place prior to
that date. This delay of effectiveness will remain in place until the
proceedings for judicial review are completed or the EPA completes its
reconsideration of the rules, whichever is earlier, and the Agency
publishes a notice in the Federal Register announcing that the rules
are in effect.
List of Subjects
40 CFR Part 60
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements.
40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements.
For the reasons set forth above, under the authority at 7 U.S.C.
705, the effective dates of FRL 9272-8, 76 FR 15608 (March 21, 2011),
and FRL 9273-4, 76 FR 15704 (March 21, 2011) are delayed until further
notice.
Dated: May 16, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011-12308 Filed 5-17-11; 8:45 am]
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