[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Rules and Regulations]
[Pages 41697-41699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16952]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2010-0846; FRL-9698-3]


Stay of the Effectiveness of Requirements; Approval and 
Promulgation of Implementation Plans; New Mexico; Federal 
Implementation Plan for Interstate Transport of Pollution Affecting 
Visibility and Best Available Retrofit Technology Determination

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is granting an administrative stay of the final rule 
titled ``Approval and Promulgation of Implementation Plans; New Mexico; 
Federal Implementation Plan for Interstate Transport of Pollution 
Affecting Visibility and Best Available Retrofit Technology 
Determination'' under the authority of the Administrative Procedure Act 
(APA) for 90 days. Today's action reflects this stay in the Code of 
Federal Regulations.

DATES: Effective July 16, 2012. 40 CFR 52.1628 is stayed until October 
15, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2010-0846. All documents in the docket are listed in 
the Federal eRulemaking portal index at http://www.regulations.gov and 
are available either electronically at http://www.regulations.gov or in 
hard copy at EPA Region 6, 1445 Ross Ave., Dallas, TX, 75202-2733. To 
inspect the hard copy materials, please schedule an appointment during 
normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section. A reasonable fee may be charged for 
copies.

FOR FURTHER INFORMATION CONTACT: Agustin Carbo-Lugo, EPA Region 6, 
(214) 665-8037, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' ``our,'' or ``the Agency'' is used, we mean the EPA. Unless 
otherwise specified, when we say the ``San Juan Generating Station,'' 
or ``SJGS,'' we mean units 1, 2, 3, and 4, inclusive.

I. Background

    On August 22, 2011, the EPA published a final rule disapproving a 
portion of the State Implementation Plan (SIP) revision received from 
the State of New Mexico on September 17, 2007, for the purpose of 
addressing the ``good neighbor'' requirements of section 
110(a)(2)(D)(i) of the Clean Air Act (CAA or Act) for the 1997 8-hour 
ozone National Ambient Air Quality Standards (NAAQS or standards) and 
the 1997 fine particulate matter (PM2.5) NAAQS (the ``NM FIP 
Rule'', 76 FR 52388). In that action, EPA disapproved the New Mexico 
Interstate Transport SIP provisions that address the requirement of 
section 110(a)(2)(D)(i)(II) that emissions from New Mexico sources do 
not interfere with measures required in the SIP of any other state 
under part C of the CAA to protect visibility. We found that New Mexico 
sources, except the San Juan Generating Station (SJGS), were 
sufficiently controlled to eliminate interference from those sources 
with the visibility programs of other states. EPA promulgated a Federal 
Implementation Plan (FIP) requiring the implementation of nitrogen 
oxides (NOX) and sulfur dioxide (SO2) emission 
limits necessary at the San Juan Generating Station to prevent such 
interference. This FIP also addresses the Regional Haze (RH) Best 
Available Retrofit Technology (BART) requirement for NOX for 
SJGS. In addition, EPA implemented sulfuric acid 
(H2SO4) hourly emission limits at the SJGS, to 
minimize the contribution of this compound to visibility impairment. 
Finally, we found that compliance with the NOX, 
SO2, and H2SO4 emission limits must be 
within 5 years of the effective date of our final rule consistent with 
the requirements of the regional haze regulations.
    Petitions for judicial review of the final rule were subsequently 
filed in the United States Court of Appeals for the Tenth Circuit. The 
petitioners bringing those challenges are WildEarth Guardians, Public 
Service of New Mexico (PNM), and New Mexico Governor Susana Martinez 
with the New Mexico Environment Department.
    By a letter to the EPA Administrator, dated April 26, 2012, the 
Governor of New Mexico requested ``a short term (90-day) stay'' of the 
federal implementation plan to evaluate the potential for alternatives 
to the rule requirements. She presents a stay as being necessary for 
``meaningful, productive negotiations'' that may lead to an avoidance 
of litigation. By a letter to the acting Regional Administrator of EPA 
Region 6, dated May 8, 2012, PNM also requested ``an opportunity to 
engage in productive discussions as proposed by Governor Martinez.''
    We support discussions of any alternatives to the federal 
implementation plan that would be consistent with regional haze rule 
requirements and the requirements of section 110(a)(2)(D)(i)(II) of the 
CAA. If such an alternative arises through discussions with the State 
of New Mexico, as well as other stakeholders, it may provide a basis 
for submittal by the state of a revised SIP, withdrawal of the FIP, and 
the resolution of pending litigation.

II. Today's Final Rule

A. Issuance of a Stay and Delay of the Effectiveness of the NM FIP Rule

    Pursuant to section 705 of the APA, the EPA hereby stays the 
effectiveness of the NM FIP Rule for a period of 90 days from the date 
of publication of this Federal Register notice. By this action, we are 
staying the effectiveness of the rule published in the Federal Register 
on August 22, 2011 (76 FR 52388). This stay of effectiveness will 
remain in place for 90 days from today. This action adds a note to 40 
CFR 52.1628 that there is a 90 day stay of the effectiveness of the NM 
FIP Rule, but, in its substance, it does not alter any future 
compliance requirements. There are no compliance obligations under the 
terms of the NM FIP that arise during the 90 day period.
    Under section 705 of the APA, ``an agency * * * may postpone the 
effective date of [an] action taken by it pending judicial review.'' 
This source of authority requires an Agency finding that ``justice 
requires'' a temporary stay of rule requirements. Accordingly, as 
groundwork for the mentioned discussions among the Agency, the State of 
New Mexico, and other stakeholders, EPA now finds that justice requires 
a 90-day stay of the rule's effectiveness. Our temporary stay of the 
effectiveness of the NM FIP Rule applies only to any requirements 
established in 40 CFR 52.1628 during the 90-day stay and does not 
extend the ultimate compliance timeframe set out in the rule, which is 
a statutory requirement under CAA section 169A(b)(2)(A). Nevertheless, 
EPA intends to undertake a future rulemaking to either: (1) Extend the 
compliance time for the NM FIP to accommodate the stay; or (2) account 
for an alternative proposal. If the

[[Page 41698]]

discussions of new alternatives lead to an additional regulatory 
proposal, the public would have the opportunity to evaluate and comment 
on such new proposal through EPA's rulemaking process.

B. Basis for Making This Action Effective on the Date of Publication

    The EPA also believes that there is good cause to make today's 
action effective immediately, rather than effective within 30 days, 
within the meaning of 5 U.S.C. 553(d)(3). One purpose of the 30-day 
waiting period prescribed in 5 U.S.C. 553(d) is to give affected 
parties a reasonable time to adjust their behavior and prepare before 
the final action takes effect. Whereas here, the affected parties are 
anticipating this action and requesting the flexibility it provides, 
and any delay in its effectiveness will result in unnecessary delays 
for productive negotiations. Therefore, balancing the necessity for 
immediate implementation against principles of fundamental fairness, 
which require that all affected persons be afforded a reasonable amount 
of time to prepare for the effective date of this action, EPA has 
determined that it is unnecessary, impracticable and contrary to the 
public interest to delay this action. Additionally, since this action 
does not ``implement, interpret, or prescribe law or policy,'' within 
the meaning of 5 U.S.C. 551(4), nor makes changes to substantive 
requirements, EPA concludes that it does not constitute a substantive 
rulemaking. Therefore, it is not subject to notice and comment 
requirements.

III. Statutory and Executive Order Reviews

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

    This action will stay the effectiveness of the NM FIP for 90 days 
and imposes no additional requirements. 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. 
Under the Paperwork Reduction Act, a ``collection of information'' is 
defined as a requirement for ``answers to * * * identical reporting or 
recordkeeping requirements imposed on ten or more persons * * *'' 44 
U.S.C. 3502(3)(A). Because the temporary stay is for the effectiveness 
of a rule that applies to a single facility, (SJGS), the Paperwork 
Reduction Act does not apply. See 5 CFR part 1320(c).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for our 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    This action 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 action is not subject to notice and comment 
requirements under the APA or any other statute because, although 
subject to the APA, this action does not ``implement, interpret, or 
prescribe law or policy,'' within the meaning of APA Sec.  551(4).

D. Unfunded Mandates Reform Act (UMRA)

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. EPA has determined that this temporary stay does not contain a 
Federal mandate that may result in expenditures that exceed the 
inflation-adjusted UMRA threshold of $100 million by State, local, or 
Tribal governments or the private sector in any 1-year. Therefore, this 
action is not subject to the requirements of sections 202 or 205 of the 
UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action stays 
the effectiveness of the NM FIP for 90 days and imposes no additional 
regulatory requirements.

E. Executive Order 13132: Federalism

    This temporary stay 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 action merely temporarily 
stays the effectiveness of a final rule. Thus, Executive Order 13132 
does not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    EPA will consult and coordinate with Tribes regarding BART 
alternatives during the stay, however, this temporary stay does not 
have tribal implications as specified by Executive Order 13175 (65 FR 
67249, November 9, 2000), because it neither imposes substantial direct 
compliance costs on tribal governments, nor preempts tribal law. 
Furthermore, this action does not ``implement, interpret, or prescribe 
law or policy,'' within the meaning of 5 U.S.C. 551(4), and therefore, 
it does not constitute a substantive rulemaking. As such, this action 
only grants a 90-day stay of the effectiveness of the NM FIP Rule 
without altering any future established compliance requirements. 
Therefore, the requirements of section 5(b) and 5(c) of the Executive 
Order do not apply to this action.

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

    This temporary stay is not subject to Executive Order 13045 because 
it is not a rule of general applicability, it is not economically 
significant as defined under Executive Order 12866, and does not have a 
disproportionate effect on children.
    Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) Is determined to be economically significant as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that

[[Page 41699]]

EPA has reason to believe may have a disproportionate effect on 
children. If the regulatory action meets both criteria, the Agency must 
evaluate the environmental health or safety effects of the planned rule 
on children, and explain why the planned regulation is preferable to 
other potentially effective and reasonably feasible alternatives 
considered by the Agency.

H. Executive Order 13211: Actions Concerning Regulations 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

    This temporary stay is not subject to the National Technology 
Transfer and Advancement Act of 1995 (``NTTAA''). Section 12(d) of the 
NTTAA, Public Law 104-113, 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

    This temporary stay is not subject to Executive Order 12898. 
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.
    EPA has determined that this action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
change the substance of 40 CFR 52.1628.

K. Congressional Review Act

    This action is not subject to the Congressional Review Act 
(``CRA''). The 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. The Section 804(3) of the CRA defines ``rule'' as having 
the same meaning given to such term in section 551 of the APA. See 5 
U.S.C. 551(4). Since this action is not designed to implement, 
interpret, or prescribe law or policy, within the meaning of APA, this 
action is exempted from the reporting requirements of the CRA.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Best available 
control technology, Incorporation by reference, Intergovernmental 
relations, Interstate transport of pollution, Nitrogen dioxide, Ozone, 
Particulate matter, Regional haze, Reporting and recordkeeping 
requirements, Sulfur dioxide, Visibility.

    Dated: July 2, 2012.
Lisa P. Jackson,
Administrator.

    Title 40, chapter I, of the Code of Federal Regulations is 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.


0
2. Effective July 16, 2012, 40 CFR 52.1628 is stayed until October 15, 
2012.

[FR Doc. 2012-16952 Filed 7-13-12; 8:45 am]
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