[Federal Register Volume 77, Number 87 (Friday, May 4, 2012)]
[Rules and Regulations]
[Pages 26444-26448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10718]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2011-0081; FRL-9660-5]
RIN 2060-AR42


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action amends the preamble and regulatory text to the 
``Final Response to Petition From New Jersey Regarding SO2 
Emissions From the Portland Generating Station'' published November 7, 
2011, to revise minor misstatements. These revisions clarify the EPA's 
finding that the Portland Generating Station (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 remove the references 
to specific New Jersey counties identified in the EPA's November 7, 
2011, final rule. These revisions have no impact on any other 
provisions of the rule.

DATES: This final rule is effective on June 4, 2012.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2011-0081. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is 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, will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Air and Radiation Docket and Information Center, EPA/DC, EPA West 
Building, 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 Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT:  Mr. Todd Hawes (919) 541-5591, 
[email protected], or Ms. Gobeail

[[Page 26445]]

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. Why is the EPA issuing this final rule?
II. Specific Revisions
III. Public Comment and Agency Response
IV. 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 issuing this final rule?

    This action finalizes minor amendments to the ``Final Response to 
Petition From New Jersey Regarding SO2 Emissions From the 
Portland Generating Station'' published on November 7, 2011. See 76 FR 
69052. We initially proposed this rule revision in parallel with a 
direct final rule because we viewed this as a noncontroversial action 
and anticipated no adverse public comments. However, the EPA did 
receive one adverse comment, and therefore we have withdrawn the direct 
final rule. In this document, we have addressed the public comment 
received on the proposal and are finalizing the ``Revisions to Final 
Response to Petition From New Jersey Regarding SO2 Emissions 
From the Portland Generating Station'' published on December 22, 2011. 
See 76 FR 79574.

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'' (76 FR 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.'' (See id. at 69057.) 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 (76 FR 19662 at 19680) 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.'' With this action, the rule text 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 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 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 revisions will not affect the emission limits, increments of 
progress, compliance schedules, or reporting provisions specified in 
the November 7, 2011, final rule and do not change the

[[Page 26446]]

conclusions that the EPA made in the final rule. No adjustments to the 
existing modeling or other technical analyses and no new analyses were 
necessary to make the revisions.

III. Public Comment and Agency Response

    On February 21, 2012, the Pennsylvania Department of Environmental 
Protection (PADEP) provided comments to the EPA on the direct final 
rule and the concurrent proposal for this rule. The direct final rule 
was subsequently withdrawn. (See 77 FR 15608.)
    PADEP commented that our revision to the November 7, 2011, final 
rule is a ``revision'' to a final rule which, in light of other similar 
actions, constitutes a pattern for EPA. PADEP specifically refers to 
recent revisions to the final Cross-State Air Pollution Rule (CSAPR) as 
an example of this alleged pattern. The commenter argues that this 
alleged pattern is the result of a ``rush to judgment'' causing 
mistakes to be made. The commenter claims that the EPA admits that the 
inadvertent reference to the four counties in New Jersey was a ``major 
misstatement'' and that the EPA committed a significant error with 
respect to the air modeling.
    The EPA does not agree that the revisions to the final rule 
resulted from any significant errors with the modeling nor did we 
characterize the issue as a major misstatement. As explained in the 
December 22, 2011, notice of the proposed revision (76 FR 79541), we 
inadvertently made reference to the four counties in New Jersey in the 
November 7, 2011, final rule. (See 76 FR at 69077; 40 CFR 52.2039.) 
This was inconsistent with the correct characterization of the finding 
described in the April 7, 2011, proposal (76 FR at 19680) in which the 
finding was proposed for the State of New Jersey generally and not in 
specific counties within the state. The changes do not affect the 
emission limits, increments of progress, compliance schedules, or the 
reporting provisions of the final rule.
    Moreover, the commenter's claim that these misstatements 
demonstrate a significant error in the air modeling is unsupported. 
First, as explained above, the modeling was targeted at corroborating 
the existence of NAAQS violations in New Jersey caused by Portland and 
determining the remedy needed to eliminate all NAAQS violations caused 
by Portland. The EPA modeling thus focused on identifying the area 
where the maximum concentration was expected to occur, which was 
identified as Warren County, New Jersey, and assessing the emission 
reduction needed to eliminate the maximum modeled violation in New 
Jersey. The commenter has failed to identify any error in this modeling 
approach. Therefore, no new technical analyses or any changes to the 
modeling are necessary to make these revisions. Second, comments on the 
modeling are beyond the scope of comment solicited by the proposal 
since no modifications to the modeling approach were proposed in this 
rule. If the commenter wished to raise any concerns with respect to the 
scope of EPA's modeling approach, they should have been raised when the 
modeling approach was initially proposed. Finally, comments regarding 
CSAPR are clearly beyond the scope of this rulemaking as CSAPR is a 
separate and unrelated rulemaking.
    The comment provides no basis for us to change the characterization 
of our finding, namely that emissions from Portland significantly 
contribute to nonattainment or interfere with maintenance of the 1-hour 
SO2 NAAQS in New Jersey. Therefore, we are not making any 
changes to the December 22, 2011, proposal in this final rule.

IV. Statutory and Executive Order Reviews

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

    This action revises minor wording errors in the November 7, 2011, 
final 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 under section 126 of the CAA, it will not create any new 
information collection burdens but 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 action do not impose any new requirements on small 
entities. This action 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 removes the specific references to the New Jersey counties 
identified in the November 7, 2011, rule.

D. Unfunded Mandates Reform Act

    This action does not contain a federal mandate 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. This action is not expected to 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 makes minor 
wording revisions to the November 7, 2011, final 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 removes the 
specific references to the New Jersey counties identified in the 
November 7, 2011, rule. 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.

[[Page 26447]]

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 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 removes the 
specific references to the New Jersey counties identified in the 
November 7, 2011, rule. 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 revises minor wording errors in the November 7, 
2011, rule.

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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has 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.

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 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 action 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 removes the specific references to the New Jersey counties 
identified in the November 7, 2011, rule.

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 this action under section 
801 because this is a rule of particular applicability. Nonetheless, 
this action will be effective June 4, 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 Third 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 filed, and 
shall not postpone the effectiveness of such action.

List of Subjects in 40 CFR Part 52

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

    Dated: April 25, 2012.
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

[[Page 26448]]

(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.
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[FR Doc. 2012-10718 Filed 5-3-12; 8:45 am]
BILLING CODE 6560-50-P