[Federal Register Volume 73, Number 85 (Thursday, May 1, 2008)]
[Rules and Regulations]
[Pages 23959-23961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9485]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2008-0314; FRL-8559-9]


Extension of Deadline for Action on Section 126 Petition From 
Warrick County, IN, and the Town of Newburgh, IN

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is extending by 6 months the deadline for EPA to take 
action on a petition submitted by Warrick County, Indiana and the Town 
of Newburgh, Indiana under section 126 of the Clean Air Act (CAA). The 
petition requests that EPA make a finding that a power plant (Cash 
Creek) proposed to be built in Henderson County, Kentucky will emit air 
pollutants that will significantly contribute to Warrick County and 
Newburgh, Indiana's nonattainment with the national ambient air quality 
standards (NAAQS) for ozone and fine particulate matter, or will 
significantly interfere with Warrick County and Newburgh, Indiana's 
ability to maintain its attainment of those standards. The petition 
requests that EPA establish emission limitations for the proposed power 
plant as a result of those findings. Under the CAA, EPA is authorized 
to grant a time extension for responding to the petition if EPA 
determines that the extension is necessary, among other things, to meet 
the purposes of the CAA's rulemaking requirements. By this action, EPA 
is making that determination.

DATES: This action is effective on April 24, 2008.

ADDRESSES: EPA has established a docket for this rulemaking under 
Docket ID number EPA-HQ-OAR-2008-0314. All documents in the docket are 
listed in the http://www.regulations.gov index. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy. Publicly available docket materials are available 
either electronically in http://www.regulations.gov or in hard copy at 
the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution 
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For general information and policy 
questions, contact Carla Oldham, Air Quality Planning Division, Office 
of Air Quality Planning and Standards, mail code C539-04, Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711; 
telephone number: 919-541-3347; fax number: 919-541-0824; e-mail 
address: [email protected]. For legal questions contact Steven 
Silverman, U.S. EPA, Office of General Counsel, Mail Code 2344A, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460, telephone (202) 564-
5523, e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    This is a procedural action to extend the deadline for EPA to 
respond to a petition from Warrick County, Indiana and the Town of 
Newburgh, Indiana filed under CAA section 126. EPA received the section 
126 petition on March 6, 2008. The petition requests that EPA make a 
finding that the Cash Creek power plant proposed to be built in 
Henderson County, Kentucky will emit air pollutants that will 
significantly contribute to Warrick County and Newburgh, Indiana's 
nonattainment with the NAAQS for ozone and fine particulate matter or 
will significantly interfere with Warrick County and Newburgh, 
Indiana's ability to maintain its attainment of those standards. The 
petition requests that EPA establish emission limitations for the 
proposed power plant as a result of those findings.
    Section 126(b) authorizes States or political subdivisions to 
petition EPA to find that a major source or group of stationary sources 
in upwind states emits or would emit any air pollutant in violation of 
the prohibition of section 110(a)(2)(D), by contributing significantly 
to nonattainment or maintenance problems in downwind states. If EPA 
makes such a finding, EPA is authorized to establish Federal emissions 
limits for the sources which so contribute.
    Under section 126(b), EPA must make the finding requested in the 
petition, or must deny the petition, within 60 days of its receipt. 
Under section 126(c), any existing sources for which EPA makes the 
requested finding must cease operations within 3 months of the finding, 
except that those sources may continue to operate if they comply with 
emission limitations and compliance schedules that EPA may provide to 
bring about compliance with the applicable requirements.
    Section 126(b) further provides that EPA must allow a public 
hearing for the petition. EPA(s action under section 126 is also 
subject to the procedural requirements of CAA section 307(d). See 
section 307(d)(1)(N). One of these requirements is notice-and-comment 
rulemaking, under section 307(d)(3).
    In addition, section 307(d)(10) provides for a time extension, 
under certain circumstances, for rulemaking subject to section 307(d). 
Specifically, section 307(d)(10) provides:


[[Page 23960]]


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

Section 307(d)(10) applies to section 126 rulemakings because the 60-
day time limit under section 126(b) necessarily limits the period after 
proposal to less than 6 months.

II. Final Action

A. Rule

    In accordance with section 307(d)(10), EPA is determining that the 
60-day period afforded by section 126(b) for responding to the petition 
from Warrick County, Indiana and the Town of Newburgh, Indiana is not 
adequate to allow the public and the Agency adequate opportunity to 
carry out the purposes of section 307(d). Specifically, the 60-day 
period is insufficient for EPA to develop an adequate proposal on 
whether the source identified in the section 126 petition will 
contribute significantly to nonattainment or maintenance problems in 
Warrick County or the Town of Newburgh, and, if so, to allow adequate 
time for public input into the promulgation of any controls to address 
those significant contributions.
    EPA is in the process of determining what would be an appropriate 
schedule for action on the section 126 petition from Warrick County, 
Indiana and the Town of Newburgh, Indiana. This schedule must afford 
EPA adequate time to prepare a proposal that clearly elucidates the 
issues to facilitate public comment and must provide adequate time for 
the public to comment prior to issuing the final rule.
    As a result of this extension, the deadline for EPA to act on the 
petition is November 5, 2008.

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

    This document is a final agency action, but may not be subject to 
the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The 
EPA believes that because of the limited time provided to make a 
determination that the deadline for action on the section 126 petition 
should be extended, Congress may not have intended such a determination 
to be subject to notice-and-comment rulemaking. However, to the extent 
that this determination otherwise would require notice and opportunity 
for public comment, there is good cause within the meaning of 5 U.S.C. 
553(b)(3)(B) not to apply those requirements here. Providing for 
notice-and-comment would be impracticable because of the limited time 
provided for making this determination, and would be contrary to the 
public interest because it would divert Agency resources from the 
substantive review of the section 126 petition.

C. Effective Date Under the APA

    This action is effective on April 24, 2008. Under the APA, 5 U.S.C. 
553(d)(3), agency rulemaking may take effect before 30 days after the 
date of publication in the Federal Register if the agency has good 
cause to mandate an earlier effective date. This action--a deadline 
extension--must take effect immediately because its purpose is to 
extend by 6 months the deadline for action on the petition. It is 
important for this deadline extension action to be effective before the 
original 60-day period for action elapses. As discussed above, EPA 
intends to use the 6-month extension period to develop a proposal on 
the petition and provide time for public comment before issuing the 
final rule. These reasons support an immediate effective date.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320(b). This action does not create new 
requirements and is not subject to the Paperwork Reduction Act.

C. Regulatory Flexibility Act

    This final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice-and-comment rulemaking requirements under 
the APA or any other statute. This rule is not subject to notice-and-
comment requirements under the APA or any other statute because 
although the rule is subject to the APA, the Agency has invoked the 
``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not 
subject to the notice-and-comment requirement.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, 2 
U.S.C. 1532, EPA generally must prepare a written statement, including 
a cost-benefit analysis, for any proposed or final rules with ``Federal 
mandates'' that may result in the expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The rule imposes no enforceable duty 
on any State, local or tribal governments or the private sector. EPA 
has determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. This rule 
simply extends the deadline for EPA to take action on a petition.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among various levels of government, as specified 
in Executive Order 13132. It imposes no regulatory burdens. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
action.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with

[[Page 23961]]

Indian Tribal Governments'' (65 FR 67249, November 6, 2000), requires 
EPA to develop an accountable process to ensure meaningful and timely 
input by Tribal officials in the development of regulatory policies 
that have Tribal implications. This rule does not have tribal 
implications, as specified in Executive Order 13175. Thus Executive 
Order 13175 does not apply to this rule.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the 
Executive Order had the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks. This rule simply extends the deadline for EPA to take 
action on a petition and does not impose any regulatory requirements.

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

    This rule is not subject to Executive Order 13211, ``Actions That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355; May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866. This action does not establish any new 
regulatory requirements.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 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 applicably voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

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

    Executive Order 12898 (59 FR 7629 (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 its programs, 
policies, and activities on minorities and low-income populations in 
the United States.
    The EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This rule simply extends the deadline for EPA to take 
action on a petition and does not impose any regulatory requirements.

K. Congressional Review Act

    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefore, and established an effective date of April 24, 
2008. EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

L. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final actions by EPA. This 
section provides, in part, that petitions for review must be filed in 
the Court of Appeals for the District of Columbia Circuit (i) when the 
agency action consists of ``nationally applicable regulations 
promulgated, or final actions taken, by the Administrator,'' or (ii) 
when such action is locally or regionally applicable, if ``such action 
is based on a determination of nationwide scope or effect and if in 
taking such action the Administrator finds and publishes that such 
action is based on such a determination.''
    Under CAA section 307(b)(1), a petition to review this action must 
be filed in the Court of Appeals for the District of Columbia Circuit 
within 60 days of May 1, 2008.

List of Subjects in 40 CFR Part 52

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

    Dated: April 24, 2008.
Stephen L. Johnson,
Administrator.
[FR Doc. E8-9485 Filed 4-30-08; 8:45 am]
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