[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Proposed Rules]
[Pages 79574-79578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32653]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2011-0081; FRL-9609-5]
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: Proposed rule.

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[[Page 79575]]

SUMMARY: This action proposes to amend the preamble and regulatory 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: Comments. Written comment must be received on or before February 
21, 2012.
    Public Hearing: If a public hearing on this proposal is requested 
by December 29, 2011, it will be held on January 11, 2012, at 9 a.m. at 
the U.S. EPA Region 3 Regional Office, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103-2029. Please refer to SUPPLEMENTARY INFORMATION for 
additional information on the comment period and the public hearing.

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 (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. General Information

A. Why is the EPA issuing this proposed rule?

    This document proposes minor amendments to the Final Response to 
Petition From New Jersey Regarding SO2 Emissions From the 
Portland Generating Station (See 76 FR 69052). We have published a 
direct final rule, making minor modifications to that rule in the 
``Rules and Regulations'' section of this Federal Register because we 
view this as a noncontroversial action and anticipate no adverse 
comment. We have explained our reasons for this action in the preamble 
to the direct final rule.
    If we receive no adverse comment, we will not take further action 
on this proposed rule. If we receive adverse comment, we will withdraw 
the direct final rule and it will not take effect. We would address all 
public comments in any subsequent final rule based on this proposed 
rule. We do not intend to institute a second comment period on this 
action. Any parties interested in commenting must do so at this time. 
For further information, please see the information provided in the 
ADDRESSES section of this document.

B. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this proposal will also be available on the World Wide Web. Following 
signature by the EPA Administrator, a copy of this action will be 
posted on the EPA's Web site www.epa.gov/ttn/oarpg/new.html.

C. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2. Send or deliver information 
identified as CBI only to the following address: Roberto Morales, OAQPS 
Document Control Officer

[[Page 79576]]

(C404-02), U.S. EPA, Research Triangle Park, NC 27711, Attention Docket 
ID No. EPA-HQ-OAR-2011-0081.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

D. How can I find information about a public hearing?

    The public hearing, if requested by December 29, 2011, will be held 
on January 11, 2012, at the EPA Region 3 Regional Office, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103-2029 from 9 a.m. until the 
last registered speaker has spoken. The EPA will make every effort to 
accommodate all speakers that arrive and register before 12 noon. Oral 
testimony will be limited to 5 minutes per commenter. The EPA 
encourages commenters to provide written versions of their oral 
testimonies either electronically or in paper copy. Verbatim 
transcripts and written statements will be included in the rulemaking 
docket. If you would like to present oral testimony at the hearing, 
please notify Ms. Pam S. Long, Air Quality Policy Division (C504-03), 
U.S. EPA, Research Triangle Park, NC 27711, telephone number (919) 541-
0641, [email protected]. Persons interested in presenting oral testimony 
should notify Ms. Long at least 1 day in advance of the public hearing. 
The last day to register will be January 10, 2012. If using email to 
register, please provide the following information: Name, affiliation, 
address, email address, and telephone and fax numbers. Commenters 
should also notify Ms. Long if they will need specific equipment, or if 
there are other special needs related to providing comments at the 
public hearing. The EPA will provide equipment for commenters to show 
overhead slides or make computerized slide presentations if we receive 
special requests in advance. The EPA encourages commenters to provide a 
copy of their oral testimony electronically (via email or CD) or in 
hard copy form. For updates and additional information on the public 
hearing, please check EPA's Web site for this rulemaking, www.epa.gov/ttn/oarpg/new.html. The public hearing will provide interested parties 
the opportunity to present data, views, or arguments concerning the 
proposed rule. The EPA may ask clarifying questions during the oral 
presentations, but will not respond to the presentations or comments at 
that time. Written statements and supporting information submitted 
during the comment period will be considered with the same weight as 
any oral comments and supporting information presented at a public 
hearing.

E. How is the preamble organized?

SUPPLEMENTARY INFORMATION:

I. General Information
    A. Why is the EPA issuing this proposed rule?
    B. Where can I get a copy of this document and other related 
information?
    C. What should I consider as I prepare my comments for EPA?
    D. How can I find information about a public hearing?
    E. How is the preamble organized?
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

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 proposing to revise 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 proposing to revise 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. We propose that 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

[[Page 79577]]

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 propose that the rule text now 
read, ``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 
proposed revision 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 proposed 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 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 proposed revision will not affect the emission limits, 
increments of progress, compliance schedules, or reporting provisions 
specified in the November 7, 2011 final rule. No adjustments to the 
existing modeling or other technical analyses and no new analyses are 
necessary to make the revisions. Accordingly, we are taking comment 
only on the proposed change to the phrasing used to describe our 
finding based on the analyses conducted for the remedy. The proposed 
revisions do not change the conclusions that the EPA made in the final 
rule. The EPA is requesting comment only on the specific revisions 
proposed herein. The EPA is not reopening or requesting comment on any 
other aspect of the rule published on November 7, 2011, including the 
agency's air quality modeling, interim emission limits, final emission 
limits, increments of progress, rationale for the emission limits, or 
other requirements finalized in the November 7, 2011 rule.

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 Orders 12866 (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 proposed rule, if finalized, 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. 
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, not in specific 
counties within the state.
    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 proposed 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 being proposed in this notice do not impose any new 
requirements on small entities. 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.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issus related 
to such impacts.

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 proposes 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

[[Page 79578]]

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, 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 final 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.
    In the spirit of Executive Order 13132, and consistent with the EPA 
policy to promote communications between the EPA and state and local 
governments, the EPA specifically solicits comment on this proposed 
action from state and local officials.

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. Thus, Executive Order 13175 does not apply to this action. 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.

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.
    The public is invited to submit comments or identify peer-reviewed 
studies and data, which the EPA may not be aware.

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 No. 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 proposed 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 proposed 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 rule proposes minor revisions to a previously 
promulgated 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.

List of Subjects in 40 CFR Part 52

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

    Dated: December 14, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011-32653 Filed 12-21-11; 8:45 am]
BILLING CODE 6560-50-P