[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Rules and Regulations]
[Pages 79541-79544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32652]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2011-0081; FRL-9609-4]
RIN 2060-AQ69


Revisions to Final Response to Petition From New Jersey Regarding 
SO2 Emissions From the Portland Generating Station

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action to amend the preamble 
and rule text to the Final Response to Petition From New Jersey 
Regarding SO2 Emissions From the Portland Generating Station (Portland) 
published November 7, 2011, to revise minor misstatements. These 
revisions clarify the EPA's finding that Portland significantly 
contributes to nonattainment or interferes with maintenance of the 1-
hour sulfur dioxide (SO2) national ambient air quality 
standard (NAAQS) in the State of New Jersey, and not in specific 
counties within the state. These revisions have no impact on any other 
provisions of the rule.

DATES: The direct final rule is effective on March 21, 2012 without 
further notice, unless the EPA receives adverse comment by February 21, 
2012. If the EPA receives an adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2011-0081, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected]. Attention Docket ID No. 
EPA-HQ-OAR-2011-0081.
     Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2011-0081.
     Mail: EPA Docket Center, EPA West (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2011-0081, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2011-0081, Environmental Protection Agency, 
1301 Constitution Avenue NW., Room 3334, Washington, DC. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2011-0081. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to the EPA without going through 
www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, the EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters and any form of encryption, and be free of any 
defects or viruses. For additional information about the EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI 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 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: Mr. Todd Hawes (919) 541-5591, 
[email protected], or Ms. Gobeail McKinley

[[Page 79542]]

(919) 541-5246, [email protected], Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code C539-04, 
Research Triangle Park, NC 27711.

SUPPLEMENTARY INFORMATION:

I. Why is the EPA using a direct final rule?
II. Specific Revisions
III. 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 (RFA)
    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 and Safety Risks
    H. Executive Order 13211: Actions 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. Why is the EPA using a direct final rule?

    The EPA is publishing this rule without a prior proposed rule 
because we view this as a noncontroversial action and anticipate no 
adverse comment since the changes will not affect the emission limits, 
increments of progress, compliance schedules, or the reporting 
provisions specified in the November 7, 2011, final rule. However, in 
the ``Proposed Rules'' section of today's Federal Register, we are 
publishing a separate document that will serve as the proposed rule to 
amend the preamble and regulatory text to the Final Response to 
Petition From New Jersey Regarding SO2 Emissions From the Portland 
Generating Station if adverse comments are received on this direct 
final rule. We will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time. 
For further information about commenting on this rule, see the 
ADDRESSES section of this document.
    If the EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

II. Specific Revisions

    The preamble and rule text to the Final Response to Petition From 
New Jersey Regarding SO2 Emissions From the Portland Generating Station 
(See FR 76 69052) contain minor misstatements that the EPA is revising 
in this action. In the preamble section IV.A, Summary of the Modeling 
for the Proposed Rule, the EPA inadvertently referred to four specific 
counties in New Jersey when discussing violations of the 1-hour 
SO2 NAAQS. The statement reads, ``The EPA also modeled the 
emissions from Portland using the AERMOD dispersion model and 
determined that the modeled concentrations from Portland, when combined 
with the relatively low background concentrations, cause violations of 
the 1-hour SO2 NAAQS in Morris, Sussex, Warren and Hunterdon 
Counties in New Jersey.'' This conclusion is not correctly stated as 
the EPA's modeling did not separately examine air quality in each of 
the four counties identified. A more accurate description of the EPA's 
conclusion was presented in the April 7, 2011, proposal which did not 
refer to those counties in our explanations of the modeling results. 
Furthermore, between proposal and promulgation, the EPA did not 
separately examine each of the four counties identified, so in the 
final rule there was no reason to change this proposed description to 
specifically list counties. Therefore, we are now revising the 
statement in the November 7, 2011, final rule preamble to be consistent 
with the description in the April 7, 2011, proposal by removing the 
references to Morris, Sussex, Warren, and Hunterdon Counties. The 
statement will now read, ``The EPA also modeled the emissions from 
Portland using the AERMOD dispersion model and determined that the 
modeled concentrations from Portland, when combined with the relatively 
low background concentrations, cause violations of the 1-hour 
SO2 NAAQS in New Jersey.''
    Similarly, in the rule text, Part 52--[Amended], Subpart NN-
Pennsylvania, section 52.2039 in 40 CFR part 52, of the final rule, the 
EPA inadvertently referred to those same four counties in describing 
the finding of significant contribution to nonattainment and 
interference with maintenance of the 1-hour SO2 NAAQS. The 
provision reads, ``The EPA has made a finding pursuant to section 126 
of the Clean Air Act (the Act) that emissions of sulfur dioxide 
(SO2) from the Portland Generating Station in Northampton 
County, Upper Mount Bethel Township, Pennsylvania (Portland) 
significantly contribute to nonattainment and interfere with 
maintenance of the 1-hour SO2 national ambient air quality 
standard (NAAQS) in Morris, Sussex, Warren, and Hunterdon Counties in 
New Jersey.'' We are revising the rule text so that it now reads, ``The 
EPA has made a finding pursuant to section 126 of the Clean Air Act 
(the Act) that emissions of sulfur dioxide (SO2) from the 
Portland Generating Station in Northampton County, Upper Mount Bethel 
Township, Pennsylvania (Portland) significantly contribute to 
nonattainment and interfere with maintenance of the 1-hour 
SO2 national ambient air quality standard (NAAQS) in New 
Jersey.''
    Although the New Jersey Department of Environmental Protection 
(NJDEP) modeling analysis submitted with the September 2010 petition 
identified NAAQS violations at receptors in certain counties, the 
purpose of the EPA modeling was not to identify or corroborate the 
entire geographic footprint of the violations in New Jersey. The EPA 
modeling analysis was conducted for the purpose of corroborating the 
existence of NAAQS violations in New Jersey caused by Portland and for 
determining the remedy needed to eliminate all NAAQS violations caused 
by Portland. The EPA modeling thus focused upon identifying only the 
area where the maximum concentration was expected to occur. We used the 
same receptor grid for the final rule as for the proposed rule, which 
was focused on the area of maximum impacts occurring in Warren County, 
New Jersey. The remedy was determined by assessing the emission 
reduction needed to eliminate the maximum modeled violation in New 
Jersey, which occurs in close proximity to Portland in Warren County. 
There was no need to make an assessment of impacts at all locations 
within New Jersey since eliminating the NAAQS violations at the highest 
impacted receptor provided the basis for the remedy which, by its 
nature, would eliminate all modeled violations caused by Portland in 
the entire state. Therefore, the EPA finding pursuant to section 126 of 
the Clean Air Act (the Act) applies to New Jersey generally. The 
revision finalized in this rule is consistent with NJDEP's request for 
a finding that emissions from Portland significantly contribute to 
nonattainment or interfere with maintenance of the 1-hour 
SO2 NAAQS in New Jersey. The revision is also consistent 
with the language in sections 110 and 126 of the Act which is phrased 
such that the petitioner can request a finding that a source in one 
state is significantly contributing to

[[Page 79543]]

nonattainment or interfering with maintenance of the NAAQS in another 
state. The addition of the counties was neither necessary nor 
intentional and did not arise from a request from the petitioner or any 
other commenter.
    The revision finalized in this rule will not affect the emission 
limits, increments of progress, compliance schedules, or the reporting 
provisions specified in the November 7, 2011, final rule. No 
adjustments to the existing modeling or other technical analyses and no 
new analyses were necessary to make the revisions. Accordingly, we are 
publishing this direct final rule because we view this as a 
noncontroversial action and anticipate no adverse comment. The 
revisions do not change the conclusions that the EPA made in the final 
rule. Therefore, the EPA is not revising any other aspect of the rule 
published on November 7, 2011.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action simply revises minor wording errors in the November 7, 
2011 rule. This action corrects a response to a petition that is narrow 
in scope and affects a single facility. This type of action is exempt 
from review under Executive Orders12866 (58 FR 51735, October 4, 1993) 
and 13563 (76 FR 3821, January 21, 2011).

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., 
because this rule under section 126 of the CAA will not in-and-of 
itself create any new information collection burdens but simply revises 
minor wording errors in the November 7, 2011, rule. Burden is defined 
at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The 
revisions in this notice do not impose any new requirements on small 
entities. These revisions clarify the EPA's finding that Portland 
significantly contributes to nonattainment or interferes with 
maintenance of the 1-hour SO2 NAAQS in the State of New 
Jersey, and not in specific counties within the state.

D. Unfunded Mandates Reform Act

    This action does not contain a federal mandate that may result in 
expenditures of $100 million or more for state, local, and tribal 
governments, in the aggregate, or the private sector in any 1 year. 
This action includes minor wording revisions to the November 7, 2011, 
final rule in this notice that are not expected to exceed $100 million 
or more for state, local, and tribal governments, in aggregate, or the 
private sector in any 1 year. This action simply revises minor wording 
errors in the November 7, 2011, rule. These revisions clarify the EPA's 
finding that Portland significantly contributes to nonattainment or 
interferes with maintenance of the 1-hour SO2 NAAQS in the 
State of New Jersey, and not in specific counties within the state. 
Thus, this rule is not subject to the requirements of sections 202 or 
205 of UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. Again, this action 
simply revises minor wording errors in the November 7, 2011, rule. 
These revisions clarify the EPA's finding that Portland significantly 
contributes to nonattainment or interferes with maintenance of the 1-
hour SO2 NAAQS in the State of New Jersey, and not in 
specific counties within the state.

E. Executive Order 13132: Federalism

    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. The November 2011 rule primarily 
affects private industry, and does not impose significant economic 
costs on state or local governments. This action simply revises minor 
wording errors in the November 7, 2011, rule. These revisions clarify 
the EPA's finding that Portland significantly contributes to 
nonattainment or interferes with maintenance of the 1-hour 
SO2 NAAQS in the State of New Jersey, and not in specific 
counties within the state. Thus, Executive Order 13132 does not apply 
to this action.

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 
a substantial direct effect on tribal governments, on the relationship 
between the federal government and Indian tribes, or the distribution 
of power and responsibilities between the federal government and Indian 
Tribes. This action simply revises minor wording errors in the November 
7, 2011, rule. These revisions clarify the EPA's finding that Portland 
significantly contributes to nonattainment or interferes with 
maintenance of the 1-hour SO2 NAAQS in the State of New 
Jersey, and not in specific counties within the state. Thus, Executive 
Order 13175 does not apply to this action.

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

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 
12866, and because the agency does not believe the environmental health 
or safety risks addressed by this action present a disproportionate 
risk to children. This action simply revises minor wording errors in 
the November 7, 2011, rule. These revisions clarify the EPA's finding 
that Portland significantly contributes to nonattainment or interferes 
with maintenance of the 1-hour SO2 NAAQS in the State of New 
Jersey, and not in specific counties within the state.

[[Page 79544]]

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

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, 12(d) (15 U.S.C. 272 note) 
directs the 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 the EPA to provide 
Congress, through OMB, explanations when the agency decides not to use 
available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
the EPA is not considering 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 their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. This action is not subject to EO 13045 (62 FR 19885, 
April 23, 1997) because it is not economically significant as defined 
in EO 12866, and because the agency does not believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This action simply revises minor 
wording errors in the November 7, 2011, rule. These revisions clarify 
the EPA's finding that Portland significantly contributes to 
nonattainment or interferes with maintenance of the 1-hour 
SO2 NAAQS in the State of New Jersey, and not in specific 
counties within the state.

K. Congressional Review Act

    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, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). The EPA is not 
required to submit a rule report regarding today's action under section 
801 because this is a rule of particular applicability. Nonetheless, 
this action will be effective March 21, 2012.

L. Judicial Review

    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 District of Columbia Circuit Court within 60 days from the date the 
final action is published in the Federal Register. Filing a petition 
for review by the Administrator of this final action 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 
must be final, and shall not postpone the effectiveness of such action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, and Reporting and recordkeeping requirements, Sulfur 
dioxide.

    Dated: December 14, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons set forth in the preamble part 52 of chapter I of 
title 40 of the Code of Federal regulations are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania [Amended]

0
2. Section 52.2039 is amended by revising the introductory text to read 
as follows:


Sec.  52.2039  Interstate transport.

    The EPA has made a finding pursuant to section 126 of the Clean Air 
Act (the Act) that emissions of sulfur dioxide (SO2) from 
the Portland Generating Station in Northampton County, Upper Mount 
Bethel Township, Pennsylvania (Portland) significantly contribute to 
nonattainment and interfere with maintenance of the 1-hour 
SO2 national ambient air quality standard (NAAQS) in New 
Jersey. The owners and operators of Portland shall comply with the 
requirements in paragraphs (a) through (d) of this section.
* * * * *
[FR Doc. 2011-32652 Filed 12-21-11; 8:45 am]
BILLING CODE 6560-50-P