[Federal Register Volume 62, Number 204 (Wednesday, October 22, 1997)]
[Rules and Regulations]
[Pages 54769-54771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27977]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5911-8]


Final Determination To Extend Deadline for Promulgation of Action 
on Section 126 Petitions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is extending by an additional one month the deadline 
for taking final action on petitions that eight States have submitted 
to require EPA to make findings that sources upwind of those States 
contribute significantly to nonattainment problems in those States. 
Under the Clean Air Act (CAA or Act), EPA is authorized to grant this 
time extension if EPA determines that the extension is necessary, among 
other things, to meet the purposes of the Act's rulemaking 
requirements. By this document, EPA is making that determination. The 
eight States that have submitted the petitions are Connecticut, Maine, 
Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and 
Vermont.

EFFECTIVE DATE: This action is effective as of October 14, 1997.

FOR FURTHER INFORMATION CONTACT: Howard J. Hoffman, Office of General 
Counsel, MC-2344, 401 M St. SW, Washington, DC 20460, (202) 260-5892.

SUPPLEMENTARY INFORMATION:

I. Background

    Today's action is procedural, and is set in the context of a series 
of actions EPA is taking to address the problem of the transport of 
tropospheric ozone and its precursors--especially oxides of nitrogen 
(NOX)--across the eastern region of the United States.
    The most recent step EPA has taken to address regional ozone 
transport was the signing of a proposed rulemaking that the State 
implementation plans (SIPs) of 22 States and the District of Columbia, 
all in the eastern half of the United States, must be revised under CAA 
sections 110(k)(5) and 110(a)(1) to include provisions reducing 
NOX emissions because those emissions contribute 
significantly to ozone nonattainment or maintenance problems in 
downwind states. EPA Administrator Carol M. Browner signed this 
proposed rulemaking--referred to in this notice as the NOX 
SIP call--on October 10, 1997. The proposal is designed to assure that 
SIPs meet the requirements of CAA section 110(a)(2)(D), which mandates 
that SIPs contain adequate provisions prohibiting emissions that 
significantly contribute to downwind nonattainment problems. This 
proposal is based on information indicating that emissions from those 
23 jurisdictions have an adverse impact on downwind areas with respect 
to both of the ozone National Ambient Air Quality Standards (NAAQS)--
the long-standing one-hour standard and the eight-hour standard that 
was promulgated by notice dated July 18, 1997 (62 FR 38856). EPA's 
proposals were based generally on recommendations and technical 
analyses from the Ozone Transport Assessment Group (OTAG), which was an 
organization comprising EPA, states,

[[Page 54770]]

industry, and citizens groups that was formed to focus on interstate 
ozone transport.
    In contrast, today's action is based on a separate set of statutory 
tools designed to remedy interstate pollution transport that are found 
in CAA section 126. Section 126(b) authorizes States or political 
subdivisions to petition EPA for a finding that major stationary 
sources in upwind states emit in violation of the prohibition of 
section 110(a)(2)(D), by contributing significantly to nonattainment 
problems in downwind States.
    Beginning on August 14, 1997, EPA received eight petitions under 
section 126 from eight states. These eight states (and the dates that 
EPA received the petitions), are:

Connecticut (August 15, 1997)
Maine (August 15, 1997)
Massachusetts (August 14, 1997)
New Hampshire (August 15, 1997)
New York (August 15, 1997)
Pennsylvania (August 15, 1997)
Rhode Island (August 14, 1997)
Vermont (August 15, 1997)
Taken together, the petitions ask EPA to find that major sources of 
NOX emissions in States in the eastern half of the United 
States, from (and including) Louisiana in the southwest, Minnesota in 
the northwest, and Georgia in the southeast, contribute significantly 
to nonattainment in areas further to the east and north.
    Under section 126(b), for each petition, EPA must make the 
requested finding, or deny the petition, within 60 days of receipt of 
the petition. Under section 126(c), with respect to any existing 
sources for which EPA makes the requested finding, those sources must 
cease operations within three months of the finding, except that those 
sources may continue to operate if they comply with emissions 
limitations and compliance schedules that EPA may provide to bring 
about compliance with the applicable requirements.
    Section 126(b) provides that EPA must allow a public hearing for 
the submitted petitions. In addition, EPA's action under section 126 is 
subject to the procedural requirements of CAA section 307(d). See 
section 307(d)(1)(N). One of these requirements is notice-and-comment 
rulemaking, under section 307(d)(3).
    In addition, section 307(d)(10) provides for a time extension, 
under certain circumstances, for rulemaking subject to section 307(d). 
Specifically, section 307(d)(10) provides:

    Each statutory deadline for promulgation of rules to which this 
subsection applies which requires promulgation less than six months 
after date of proposal may be extended to not more than six months 
after date of proposal by the Administrator upon a determination 
that such extension is necessary to afford the public, and the 
agency, adequate opportunity to carry out the purposes of this 
subsection.

Section 307(d)(10) applies, by its terms, to section 126 rulemakings 
because the 60-day time limit under section 126(b) necessarily limits 
the period after proposal to less than six months.
    In accordance with section 307(d)(10), EPA is today determining 
that the 60-day period afforded by section 126(b) is not adequate to 
allow the public and the agency adequate opportunity to carry out the 
purposes of the section 307(d) procedures for developing an adequate 
proposal on whether the sources identified in the section 126 petitions 
contribute significantly to nonattainment problems downwind, and, 
further, to allow public input into the promulgation of any controls to 
mitigate or eliminate those contributions. The determination of whether 
upwind emissions contribute significantly to downwind nonattainment 
areas is highly complex. The NOX SIP call, which proposes a 
somewhat comparable determination, relied on extensive computer 
modeling of air quality emissions and the ambient impacts therefrom in 
the large geographic region of the eastern half of the United States. 
This modeling was developed over a two-year period. It reflected the 
input of EPA, the 37 states east of the Rockies as well as numerous 
industry and citizen groups, all of whom participated in the OTAG. 
Moreover, EPA is allowing a 120-day comment period on the 
NOX SIP call proposal, and expects to take final action on 
the NOX SIP call in September, 1998, some 11 months after 
the date of proposal.
    In acting on the section 126 petitions, EPA must make 
determinations that, generally, are at least as complex as those 
required for the NOX SIP call, and EPA must do so for 
sources throughout the eastern half of the United States. Moreover, if 
EPA determines that the petitions should be granted, EPA must 
promulgate appropriate controls for the affected sources.
    EPA is in the process of determining what would be an appropriate 
schedule for action on the section 126 petitions, in light of the 
complexity of the required determinations and the usefulness of 
coordinating generally with the procedural path for the NOX 
SIP call. It is imperative that this schedule (i) afford EPA adequate 
time to prepare a notice that clearly elucidates the issues so as to 
facilitate public comment, as well as (ii) afford the public adequate 
time to comment. EPA is currently in the process of discussing an 
appropriate schedule with the section 126 petitioners and other 
interested parties.
    Accordingly, extending the date for action on the section 126 
petitions for another one month is necessary to determine the 
appropriate overall schedule for action, as well as to continue to 
develop the technical analysis needed to develop a proposal.
    EPA is not, at this time, using the full six months provided under 
section 307(d)(10) for the extension. EPA reserves the right to apply 
the remaining five months, or a portion thereof, as an additional 
extension, if necessary, immediately following the conclusion of the 
one-month period, or to apply the remaining time to the period 
following EPA's proposed rulemaking.

II. Final Action

A. Rule

    Today, EPA is determining, under CAA section 307(d)(10), that a 
one-month period is necessary to assure the development of an 
appropriate schedule for rulemaking on the section 126 petitions, which 
schedule would allow EPA adequate time to prepare a notice for proposal 
that will best facilitate public comment, as well as allow the public 
sufficient time to comment. Accordingly, EPA is granting a one-month 
extension to the time for rulemaking on the section 126 petitions. 
Under this extension, the dates for action on the section 126 petitions 
are:

Connecticut--November 15, 1997
Maine--November 15, 1997
Massachusetts--November 14, 1997
New Hampshire--November 15, 1997
New York--November 15, 1997
Pennsylvania--November 15, 1997
Rhode Island--November 14, 1997
Vermont--November 15, 1997

B. Notice-and-Comment Under the Administrative Procedures Act (APA)

    This document is a final agency action, but may not be subject to 
the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). EPA 
believes that because of the limited time provided to make a 
determination that the deadline for action on the section 126 petitions 
should be extended, Congress may not have intended such a determination 
to be subject to notice-and-comment rulemaking. However, to the extent 
that this determination is subject to notice-and-comment rulemaking, 
EPA invokes the good cause exception pursuant to the APA, 5 U.S.C. 
553(b)(3)(B). Providing notice and

[[Page 54771]]

comment would be impracticable because of the limited time provided for 
making this determination, and would be contrary to the public interest 
because it would divert agency resources from the critical substantive 
review of the section 126 petitions.

C. Effective Date Under the APA

    Today's action will be effective on October 14, 1997. Under the 
APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 
days after the date of publication in the Federal Register if the 
agency has good cause to mandate an earlier effective date. Today's 
action--a deadline extension--must take effect immediately because its 
purpose is to move back by one month the October 14, 1997 deadlines for 
several of the section 126 petitions, and the deadlines for the other 
section 126 petitions that follow shortly thereafter. Moreover, EPA 
intends to use immediately the one-month extension period to continue 
to develop an appropriate schedule for ultimate action on the section 
126 petitions, and to continue to develop the technical analysis needed 
to develop the notice of proposed rulemaking. These reasons support an 
effective date prior to 30 days after the date of publication.

D. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

E. Unfunded Mandates

    Under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et 
seq., EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector or to 
State, local, or tribal governments in the aggregate. In addition, 
before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, EPA must have 
developed a small government agency plan. EPA has determined that these 
requirements do not apply to today's action because this rulemaking (i) 
is not a Federal mandate--rather, it simply extends the date for EPA 
action on a rulemaking; and (ii) contains no regulatory requirements 
that might significantly or uniquely affect small governments.

F. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq., 
EPA must propose a regulatory flexibility analysis assessing the impact 
on small entities of any rule subject to the notice-and-comment 
rulemaking requirements. Because this action is exempt from such 
requirements, as described above, it is not subject to RFA.

G. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. of the APA, 5 U.S.C. 801(a)(1)(A), as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 
EPA submitted, by the date of publication of this rule, a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office. This rule is not a ``major rule'' as defined 
by 5 U.S.C. 804(2), as amended.

H. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
which require OMB approval under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.)

I. Judicial Review

    Under CAA section 307(b)(1), a petition to review today's action 
may be filed in the Court of Appeals for the District of Columbia 
within 60 days of October 22, 1997.

    Dated: October 14, 1997.
Carol M. Browner,
Administrator.
[FR Doc. 97-27977 Filed 10-21-97; 8:45 am]
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