[Federal Register Volume 73, Number 220 (Thursday, November 13, 2008)]
[Rules and Regulations]
[Pages 67107-67109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26842]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-RO9-OAR-2006-0184; FRL-8739-7]


Stay of Effectiveness of Control Measure Regulating Dust 
Emissions at the Four Corners Power Plant; Navajo Nation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to stay the effectiveness of a 
control measure regulating dust emissions from certain operations that 
we promulgated in our Federal Implementation Plan for the Four Corners 
Power Plant located on the Navajo Nation. The control measure would 
take effect on November 5, 2008. On October 1, 2007, Arizona Public 
Service Company filed a Petition for Review claiming, inter alia, that 
EPA had not provided an adequate explanation for promulgating the 
control measure. In the litigation, EPA has agreed that the control 
measure should be remanded and vacated. EPA needs to complete this 
action staying the effectiveness of the control measure until the Court 
rules on the Petition, including the Petitioner's and EPA's requests to 
remand and vacate the control measure.

DATES: The stay to 40 CFR 49.23(d)(3) is effective on November 13, 2008 
until further notice. The EPA will publish a document in the Federal 
Register announcing that the stay is lifted.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-RO9-OAR-2006-0184. All documents in the docket are listed in 
the Federal Docket Management System index at www.regulations.gov. 
Although listed in the index, some information is

[[Page 67108]]

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 
though www.regulations.gov or in hard copy at the Air and Radiation 
Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC 20460. 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 and Radiation Docket is (202) 566-1742. 
You can inspect a copy of the docket at our Region IX office during 
normal business hours by appointment. The address is: Planning Office 
(AIR-2), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105.

FOR FURTHER INFORMATION CONTACT: Steve Frey, EPA Region IX, (415) 972-
3990 or [email protected].

SUPPLEMENTARY INFORMATION:  Throughout this document, ``we,'' ``us'' 
and ``our'' refer to EPA.

I. Overview

    On May 7, 2007 (72 FR 25698), we published a Source-Specific 
Federal Implementation Plan for Four Corners Power Plant; Navajo Nation 
(hereinafter ``FIP''). The operator and partial owner of the Four 
Corners Power Plant is the Arizona Public Service Company (``APS''). 
One provision of the FIP regulated dust emissions at the power plant's 
coal handling and storage operations, flyash handling and storage and 
road sweeping activities, as follows: ``Within 548 days of promulgation 
of this section each owner or operator shall not emit dust with an 
opacity greater than 20 percent from any crusher, grinding mill, 
screening operation, belt conveyor, or truck loading or unloading 
operation.'' 72 FR 25705, codified at 40 CFR 49.23(d)(3)(hereinafter 
``dust control measure'').
    APS filed a timely Petition for Review of the FIP challenging, 
inter alia, EPA's basis for requiring compliance with the dust control 
measure. Arizona Public Service Company v. EPA et al., Case No. 07-
9546, (10th Cir., Oct. 1, 2007). Sierra Club requested and was granted 
leave to intervene in the case. All parties have filed their briefs 
regarding the Petition and the Court has heard oral argument from the 
parties. The Court has not issued any decision in the matter.
    EPA, however, has taken the position in the litigation by APS that 
it would be appropriate for the Court to remand and vacate the dust 
control measure. In its brief, EPA has advised the Court that the FIP 
did not contain an adequate explanation of its rationale for imposing 
the dust control measure. The Court has not ruled on the case. EPA, 
therefore, considers it appropriate to stay the effectiveness of the 
dust control measure pending the outcome of the litigation.
    EPA believes that this rulemaking qualifies for the ``good cause'' 
exemption under the Administrative Procedures Act (``APA''). 5 U.S.C. 
553(b)(3). EPA has determined that prior proposal and opportunity for 
comment are impracticable and unnecessary because the public is not 
likely to be particularly interested, and notice and opportunity for 
comment were previously provided when EPA promulgated the dust control 
measure. (See 72 FR at 25705 (May 7, 2007).) EPA also believes that 
this rulemaking qualifies for the ``good cause'' exemption to make the 
rule effective immediately under Section 553(d) because it is a 
relaxation of a restriction by staying the implementation of the dust 
control measure. 5 U.S.C. 553(d). EPA has also found that consistent 
with 5 U.S.C. 705, it is in the interest of justice to postpone the 
effective date of the dust control measure pending the Court's decision 
in Arizona Public Service v. EPA. All of the remaining provisions of 
the FIP remain in place and effective.

II. Statutory and Executive Order Reviews

    This action stays a federal control measure and imposes no 
additional requirements.
    This rule is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), and 
therefore is not subject to review under the EO.
    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 under Executive Order 12866.
    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 Administrative Procedure Act (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.
    This rule 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. The 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 rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000). 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. Thus, Executive Order 13175 does not 
apply to this action.
    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 
1985, April 23, 1997), because it has not been determined to be 
economically significant as defined under Executive Order 12866 and 
because it does not establish an environmental standard intended to 
mitigate health or safety risks.
    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply 
to this rule because this action does not involve technical standards.
    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction

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Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).
    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 November 13, 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. 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. Filing a petition 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 petitions 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 49

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Indians, Intergovernmental relations, Reporting 
and recordkeeping requirements.

    Dated: November 5, 2008.
Stephen L. Johnson,
Administrator.

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40 CFR Part 49 is amended as follows:

PART 49--[AMENDED]

0
1. The authority citation for part 49 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


Sec.  49.23  [Amended]

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2. In Sec.  49.23, paragraph (d)(3) is stayed until further notice.

 [FR Doc. E8-26842 Filed 11-12-08; 8:45 am]
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