[Federal Register Volume 78, Number 217 (Friday, November 8, 2013)]
[Rules and Regulations]
[Pages 67036-67038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26642]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2013-0671; FRL-9902-55-OAR]


Extension of Deadline for Action on the Section 126 Petition From 
Eliot, Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, the EPA is determining that 60 days is 
insufficient time to complete the technical and other analyses and 
public notice-and-comment process required for our review of a petition 
submitted by the Town of Eliot, Maine pursuant to section 126 of the 
Clean Air Act (CAA). The petition requests that the EPA make a finding 
that Schiller Station in Portsmouth, New Hampshire is emitting or would 
emit air pollutants that contribute significantly to nonattainment and 
interfere with maintenance of the 1-hour sulfur dioxide 
(SO2) national ambient air quality standards (NAAQS). Under 
the section 307(d)(10) of CAA, the EPA is authorized to grant a time 
extension for responding to the petition if the EPA determines that the 
extension is necessary to afford the public, and the agency, adequate 
opportunity to carry out the purposes of section 307(d)'s notice-and-
comment rulemaking requirements. By this action, the EPA is making that 
determination. The EPA is therefore extending the deadline for acting 
on the petition to no later than May 8, 2014.

DATES: This final rule is effective on November 8, 2013.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2013-0671. All documents in the docket are 
listed on the www.regulations.gov Web site. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the EPA Docket Center (Air 
Docket), 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.

FOR FURTHER INFORMATION CONTACT: Ms. Gobeail McKinley, Office of Air 
Quality Planning and Standards (C504-04), U.S. EPA, Research Triangle 
Park, North Carolina 27709, telephone number (919) 541-5246, facsimile 
number (919) 685-3700, email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background and Legal Requirements for Interstate Air Pollution

    This is a procedural action to extend the deadline for the EPA to 
respond to a petition from the Town of Eliot, Maine filed under CAA 
section 126(b). The EPA received the petition on September 3, 2013. The 
petition requests that the EPA make a finding under section 126(b) of 
the CAA that two 50 MW coal-fired electricity generating units at 
Schiller Station in Portsmouth, New Hampshire are emitting air 
pollutants in violation of the provisions of section 110(a)(2)(D)(i)(I) 
of the CAA with respect to the 1-hour SO2 NAAQS.
    Section 110(a)(2)(D)(i)(I) of the CAA prohibits emissions of any 
air pollutant in amounts which will contribute significantly to 
nonattainment in, or interfere with maintenance by, any other state 
with respect to any NAAQS. The petition asserts that emissions from 
Schiller Station impact Eliot's ability to attain and maintain the 1-
hour SO2 NAAQS and that this impact would be mitigated by 
regulation of SO2 emissions from the plant. Section 126(b) 
of the CAA authorizes states or political subdivisions to petition the 
EPA to find that a major source or group of stationary sources in 
upwind states emits or would emit any air pollutant in violation of the 
prohibition of section 110(a)(2)(D)(i) \1\ by contributing 
significantly to nonattainment or maintenance problems in downwind 
states.
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    \1\ The text of section 126 codified in the United States Code 
cross references section 110(a)(2)(D)(ii) instead of section 
110(a)(2)(D)(i). The courts have confirmed that this is a 
scrivener's error and the correct cross reference is to section 
110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032, 
1040-44 (D.C. Cir. 2001).
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    Under section 126(b), the EPA must make the finding requested in 
the petition, or must deny the petition within 60 days of its receipt. 
Under section 126(c), any existing sources for which the EPA makes the 
requested finding must cease operations within 3 months of the finding, 
except that the source may continue to operate if it complies with 
emission limitations and compliance schedules (containing increments of 
progress) that the EPA may provide to bring about compliance with the 
applicable requirements as expeditiously as practical but no later than 
3 years from the date of the finding.
    Section 126(b) further provides that the EPA must hold a public 
hearing on the petition. The EPA's action under section 126 is also 
subject to the procedural requirements of CAA section 307(d). See 
section 307(d)(1)(N). One of these requirements is notice-and-comment 
rulemaking, under section 307(d)(3)-(6).
    In addition, section 307(d)(10) provides for a time extension, 
under certain circumstances, for rulemaking subject to section 307(d). 
Specifically, section 307(d)(10) provides:

    Each statutory deadline for promulgation of rules to which this 
subsection applies which requires promulgation less than six months 
after date of proposal may be extended to not more than six months 
after date of proposal by the Administrator upon a determination 
that such extension is necessary to afford the public, and the 
agency, adequate opportunity to carry out the purposes of the 
subsection.

    Section 307(d)(10) may be applied to section 126 rulemakings 
because the 60-day time limit under section 126(b) necessarily limits 
the period for promulgation of a final rule after proposal to less than 
6 months.

II. Final Rule

A. Rule

    In accordance with section 307(d)(10), the EPA is determining that 
the 60-day period afforded by section 126(b) for responding to the 
petition from the Town of Eliot is not adequate to allow the public and 
the agency the opportunity to carry out the purposes of section 307(d). 
Specifically, the 60-day period is insufficient for the EPA to complete 
the necessary technical review, develop an adequate proposal and allow 
time for notice and comment, including an opportunity for public 
hearing, on a proposed finding regarding whether Schiller Station 
identified in the section 126 petition contributes significantly to 
nonattainment or maintenance problems in Eliot, Maine. Moreover, the 
60-day period is insufficient for the EPA to review and develop 
response to any public comments on a proposed finding, or testimony 
supplied at a public hearing and to develop and promulgate a final 
finding in response to the petition. The EPA has not yet established a 
proposal date for this action. The schedule must afford the EPA 
adequate time to prepare a proposal that clearly elucidates the

[[Page 67037]]

issues to facilitate public comment and must provide adequate time for 
the public to comment and for the EPA to review and develop responses 
to those comments prior to issuing the final rule. As a result of this 
extension, the deadline for the EPA to act on the petition is May 8, 
2014.

B. Notice and Comment Under the Administrative Procedures Act (APA)

    This document is a final agency action, but may not be subject to 
the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The 
EPA believes that, because of the limited time provided to make a 
determination that the deadline for action on the section 126 petition 
should be extended, Congress may not have intended such a determination 
to be subject to notice-and-comment rulemaking. However, to the extent 
that this determination otherwise would require notice and opportunity 
for public comment, there is good cause within the meaning of 5 U.S.C. 
553(b)(3)(B) not to apply those requirements here. Providing for notice 
and comment would be impracticable because of the limited time provided 
for making this determination and would be contrary to the public 
interest because it would divert agency resources from the substantive 
review of the section 126 petition.

C. Effective Date Under the APA

    This action is effective on November 8, 2013. Under the APA, 5 
U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days 
after the date of publication in the Federal Register if the agency has 
good cause to mandate an earlier effective date. This action--a 
deadline extension--must take effect immediately because its purpose is 
to extend by 6 months the deadline for action on the petition. It is 
important for this deadline extension action to be effective before the 
original 60-day period for action elapses. As discussed above, the EPA 
intends to use the 6-month extension period to develop a proposal on 
the petition and provide time for public comment before issuing the 
final rule. It would not be possible for the EPA to complete the 
required notice and comment and public hearing process within the 
original 60-day period noted in the statute. These reasons support an 
immediate effective date.

III. Statutory and Executive Order Reviews

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

    This action is not a significant regulatory action under the terms 
of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 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. 
Burden is defined at 5 CFR 1320.3(b). This good cause final action 
simply extends the date for the EPA to take action on a petition and 
does not impose any new obligations or enforceable duties on any state, 
local or tribal governments or the private sector. It does not contain 
any recordkeeping or reporting requirements.

C. Regulatory Flexibility Act

    This good cause final 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 rule is not 
subject to notice-and-comment requirements under the APA or any other 
statute because although the rule is subject to the APA, the agency has 
invoked the ``good cause'' exemption under 5 USC 553(b); therefore it 
is not subject to the notice and comment requirement.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local or tribal governments or the private sector. 
The action imposes no enforceable duty on any state, local or tribal 
governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This good cause 
final action simply extends the date for the EPA to take action on a 
petition.

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. This good cause final action simply 
extends the date for the EPA to take action on a petition. 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 
substantial direct effects on tribal governments, on the relationship 
between the federal government and Indian tribes, or on the 
distribution of power and responsibilities between the federal 
government and Indian tribes, as specified in Executive Order 13175. 
This good cause final action simply extends the date for the EPA to 
take action on a petition. Thus, Executive Order 13175 does not apply 
to this action.

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

    The EPA interprets EO 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 EO 
has the potential to influence the regulation. This action is not 
subject to EO 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 No. 104-113, section 12(d), (15 
U.S.C. 272 note) directs the EPA to use voluntary consensus standards 
in its regulatory

[[Page 67038]]

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. The NTTAA directs the EPA to 
provide Congress, through the Office of Management and Budget, with 
explanations when the agency decides not to use available and 
applicable voluntary consensus standards. This action does not involve 
technical standards. Therefore, the EPA did not consider the use of any 
voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of 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 good cause final action simply extends the date for 
the EPA to take action on a petition.

K. Congressional Review Act

    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, the EPA has made such a good cause finding, 
including the reasons therefore, and established an effective date of 
November 8, 2013.The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2).

IV. Statutory Authority

    The statutory authority for this action is provided by sections 
110, 126 and 307 of the Act as amended (42 U.S.C. 7410, 7426 and 7607).

V. Judicial Review

    Under section 307(b)(1) of the CAA, judicial review of this final 
rule is available only by the filing of a petition for review in the 
U.S. Court of Appeals for the for the appropriate circuit by January 7, 
2014. Under section 307(b)(2) of the CAA, the requirements that are the 
subject of this final rule may not be challenged later in civil or 
criminal proceedings brought by us to enforce these requirements.

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practices and procedures, 
Air pollution control, Electric utilities, Incorporation by reference, 
Intergovernmental relations, Sulfur dioxide.

    Dated: October 30, 2013.
Gina McCarthy,
Administrator.
[FR Doc. 2013-26642 Filed 11-7-13; 8:45 am]
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