[Federal Register Volume 75, Number 132 (Monday, July 12, 2010)]
[Rules and Regulations]
[Pages 39633-39635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16890]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2010-0473; FRL-9174-5]


Extension of Deadline for Action on Section 126 Petition From New 
Jersey

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 the New Jersey Department of 
Environmental Protection (NJDEP). The petition requests that EPA make a 
finding under the Clean Air Act (CAA) that the coal-fired Portland 
Generating Station in Upper Mount Bethel Township, Northampton County, 
Pennsylvania, is emitting air pollutants in violation of the provisions 
of the CAA. 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: The effective date of this action is July 12, 2010.

ADDRESSES: EPA has established a docket for this rulemaking under 
Docket ID number EPA-HQ-OAR-2010-0473. 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: General questions concerning this 
final rule should be addressed to Ms. Gobeail McKinley, Office of Air 
Quality Planning and Standards, Geographic Strategies Group, Mail Code 
C539-04, Research Triangle Park, NC 27711; telephone (919) 541-5246; e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Final Action
    A. Rule
    B. Notice-and-Comment Under the Administrative Procedures Act 
(APA)
    C. Effective Date Under the APA
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and 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
    L. Judicial Review

I. Background

    This is a procedural action to extend the deadline for EPA to 
respond to a petition from New Jersey filed under CAA section 126. EPA 
received the section 126 petition on May 13, 2010. The petition 
requests that EPA make a finding that the coal-fired Portland 
Generating Station (Portland Plant) in Upper Mount Bethel Township, 
Northampton County, Pennsylvania, is emitting air pollutants in 
violation of the provisions of section 110(a)(2)(D)(i) of the CAA. That 
section provides that each state's State Implementation Plan (SIP) 
shall contain adequate provisions prohibiting emissions of any air 
pollutant in amounts which will contribute significantly to 
nonattainment in, or interfere with maintenance by, any other state 
with respect to any national ambient air quality standard (NAAQS). The 
petition asserts that emissions from the Portland Plant have a 
significant impact on New Jersey's air quality and that this impact 
would be mitigated by further regulation of fine particulate matter and 
sulfur dioxide emissions from this plant. 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 three months of the 
finding, except that the source may continue to operate if it complies 
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:

    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 six 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

[[Page 39634]]

responding to the petition from the NJDEP is not adequate to allow the 
public and the Agency the opportunity to carry out the purposes of 
section 307(b). Specifically, the 60-day period is insufficient for EPA 
to complete the necessary technical review, develop an adequate 
proposal and allow time for notice and comment on whether the Portland 
Plant identified in the section 126 petition contributes significantly 
to nonattainment or maintenance problems in New Jersey. EPA has 
reviewed the petition and supporting technical information provided by 
NJDEP, and has scheduled a meeting with NJDEP officials to further 
understand the technical information. Additional time is required to 
afford EPA adequate time to further review and evaluate the basis for 
the petition, prepare a proposal that clearly elucidates the issues to 
facilitate public comment, and 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 January 12, 2011.

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 July 12, 2010. 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. It would not be possible for EPA to complete the required 
notice-and-comment and public hearing process within the original 60-
day period noted in the statute. 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 by the Office of Management and Budget 
under the Executive Order.

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 simply extends the date 
for EPA to take action on a petition and does not impose any new 
obligations or enforceable duties on any state, local or tribal 
governments or the private sector. Therefore, it does not impose an 
information collection burden.

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

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (URMA), 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.
    This action simply extends the deadline for EPA to take action on a 
petition and does not impose any new obligations or enforceable duties 
on any state, local or tribal governments or the private sector. 
Therefore, this action is not subject to the requirements of sections 
202 and 205 of the UMRA. This action is also not subject to the 
requirements of section 203 of URMA because it contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. This action simply extends the date for EPA to take action 
on a petition and does not impose any new obligations or enforceable 
duties on any small governments.

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 the various levels of government, as 
specified in Executive Order 13132. This rule simply extends the date 
for EPA to take action on a petition and does not impose any new 
obligations or enforceable duties on any state, local or tribal 
governments or the private sector. Thus, Executive Order 13132 does not 
apply to this rule.

F. 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). It will not have 
substantial direct effects on tribal governments, 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 in Executive Order 13175. 
This action does not significantly or uniquely affect the communities 
of Indian tribal governments. As discussed

[[Page 39635]]

above, this action imposes no new requirements that would impose 
compliance burdens. Accordingly, the requirements of Executive Order 
13175 do not apply to this rule.

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

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because the Agency does not believe the environmental 
health risks or safety risks addressed by this action present a 
disproportionate risk to children. 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 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 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that this 
rule is not likely to have any adverse effects because this action 
simply extends the deadline for EPA to take action on a petition.

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 applicable 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 (Feb. 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 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 of the CRA provides an 
exception to this requirement. For any rule for which an agency for 
good cause finds that notice and comment are impracticable, 
unnecessary, or contrary to the public interest, the rule may take 
effect on the date set by the Agency. The 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

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 10, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a 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, Administrative practice and procedure, 
Air pollution control, Electric utilities, Intergovernmental relations, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
dioxide.

    Dated: July 2, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-16890 Filed 7-9-10; 8:45 am]
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