[Federal Register Volume 80, Number 83 (Thursday, April 30, 2015)]
[Rules and Regulations]
[Pages 24218-24220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10118]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 63

[EPA-HQ-OAR-2009-0234 and EPA-HQ-OAR-2011-0044; FRL-9926-74-OAR]
RIN 2060-AR62


Reconsideration on the Mercury and Air Toxics Standards (MATS) 
and the Utility New Source Performance Standards; Final Action

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final action denying petitions for reconsideration.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is providing 
notice that it has responded to 23 petitions for reconsideration of the 
final rules titled National Emission Standards for Hazardous Air 
Pollutants (NESHAP) From Coal- and Oil-Fired Electric Utility Steam 
Generating Units and Standards of Performance (NSPS) for Fossil-Fuel-
Fired Electric Utility, Industrial-Commercial-Institutional, and Small 
Industrial-Commercial-Institutional Steam Generating Units, published 
in the Federal Register on February 16, 2012. The agency previously 
granted reconsideration on several discrete issues and took final 
action on reconsideration through documents published in the Federal 
Register on April 24, 2013, and November 19, 2014. The Administrator 
denied the remaining requests for reconsideration in separate letters 
to the petitioners dated April 21, 2015. A document providing a full 
explanation of the agency's rationale for each denial is in the docket 
for these rules.

DATES: Effective April 30, 2015.

FOR FURTHER INFORMATION CONTACT: Mr. Jim Eddinger, Sector Policies and 
Programs Division (D243-01), Office of Air Quality Planning and 
Standards, Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711; telephone number: (919) 541-5426; fax number: 
(919) 541-5450; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. How can I get copies of this document and other related information?

    This Federal Register document, the petitions for reconsideration, 
the letters denying the petitions for reconsideration, and the document 
titled ``Denial of Petitions for

[[Page 24219]]

Reconsideration of Certain Issues: MATS and Utility NSPS'' 
(Reconsideration Response Document) are available in the dockets the 
EPA established under Docket ID No. EPA-HQ-OAR-2009-0234 and Docket ID 
No. EPA-HQ-OAR-2011-0044. The Reconsideration Response Document is 
available in both the MATS and Utility NSPS dockets by conducting a 
search of the title ``Denial of Petitions for Reconsideration of 
Certain Issues: MATS and Utility NSPS.'' All documents in the dockets 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the EPA Docket Center (EPA/DC), Room 3334, EPA WJC West 
Building, 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. This Federal Register document and the 
Reconsideration Response Document denying the petitions can also be 
found on the EPA's Web site at http://www.epa.gov/ttn/atw/utility/utilitypg.html.

II. Judicial Review

    Section 307(b)(1) of the Clean Air Act (CAA) indicates which 
Federal Courts of Appeals have venue for petitions for review of final 
EPA actions. This section provides, in part, that the petitions for 
review must be filed in the Court of Appeals for the District of 
Columbia Circuit if: (i) The agency action consists of ``nationally 
applicable regulations promulgated, or final action taken, by the 
Administrator,'' or (ii) such actions are locally or regionally 
applicable, if ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator find and 
publishes that such action is based on such a determination.''
    The EPA has determined that its actions denying the petitions for 
reconsideration are of nationwide scope and effect for purposes of 
section 307(d)(1) because the actions directly affect the ``National 
Emission Standards for Hazardous Air Pollutants (NESHAP) From Coal- and 
Oil-Fired Electric Utility Steam Generating Units and Standards of 
Performance (NSPS) for Fossil-Fuel-Fired Electric Utility, Industrial-
Commercial-Institutional, and Small Industrial-Commercial-Institutional 
Steam Generating Units,'' both of which were found to be of nationwide 
scope and effect. Thus, any petitions for review of the EPA's decisions 
denying petitioners' requests for reconsideration must be filed in the 
United States Court of Appeals for the District of Columbia Circuit by 
June 29, 2015.

III. Description of Action

    On February 16, 2012, pursuant to sections 111 and 112 of the CAA, 
the EPA published the final rules titled ``National Emission Standards 
for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility 
Steam Generating Units and Standards of Performance for Fossil-Fuel-
Fired Electric Utility, Industrial-Commercial-Institutional, and Small 
Industrial-Commercial-Institutional Steam Generating Units'' (77 FR 
9304). The NESHAP rule issued pursuant to CAA section 112 is referred 
to as the Mercury and Air Toxics Standards (MATS), and the NSPS rule 
issued pursuant to CAA section 111 is referred to as the Utility NSPS. 
Following promulgation of the final rules, the Administrator received 
petitions for reconsideration of numerous provisions of both MATS and 
the Utility NSPS pursuant to CAA section 307(d)(7)(B).
    The EPA received 20 petitions for reconsideration of the MATS rule 
and 3 petitions for reconsideration of the Utility NSPS. The EPA 
received petitions for reconsideration of the MATS rule from the 
following organizations: American Public Power Association, ARIPPA, 
Babcock & Wilcox, Basin Electric Power Cooperative, Climate Policy 
Group, Coal Utilization Research Council, Earthjustice, East Kentucky 
Power Cooperative, Edgecombe/Spruance Genco, Edison Mission Energy, 
FirstEnergy, Hawaiian Electric Company, Institute of Clean Air 
Companies, International Brotherhood of Boilermakers, Power4Georgians, 
Puerto Rico Electric Power Authority, Southern Company, State of Texas 
(Texas Commission on Environmental Quality, Texas Public Utility 
Commission, Railroad Commission of Texas), Utility Air Regulatory Group 
(UARG), and Wolverine Power Supply Cooperative. The EPA received 
petitions for reconsideration of the Utility NSPS from the following 
organizations: Air Products, State of Texas (Texas Commission on 
Environmental Quality, Texas Public Utility Commission, Railroad 
Commission of Texas), and UARG.
    CAA section 307(d)(7)(B) states that ``[o]nly an objection to a 
rule or procedure which was raised with reasonable specificity during 
the period for public comment (including any public hearing) may be 
raised during judicial review. If the person raising an objection can 
demonstrate to the Administrator that it was impracticable to raise 
such objection within such time or if the grounds for such objection 
arose after the period for public comment (but within the time 
specified for judicial review) and if such objection is of central 
relevance to the outcome of the rule, the Administrator shall convene a 
proceeding for reconsideration of the rule and provide the same 
procedural rights as would have been afforded had the information been 
available at the time the rule was proposed. If the Administrator 
refuses to convene such a proceeding, such person may seek review of 
such refusal in the United States court of appeals for the appropriate 
circuit (as provided in subsection (b)).'' Thus, the EPA is only 
required to grant a CAA section 307(d)(7)(B) petition for 
reconsideration if the petitioner demonstrates both: (1) That it was 
impractical to raise the objection during the public comment period, or 
that the grounds for such objection arose after the public comment 
period but within the time specified for judicial review (i.e., within 
60 days after publication of the final rulemaking in the Federal 
Register); and (2) that the objection is of central relevance to the 
outcome of the rule.
    On November 30, 2012, the EPA issued a proposed rule reconsidering 
certain new source MATS, the requirements applicable during periods of 
startup and shutdown for MATS and the Utility NSPS (for the PM standard 
only), certain definitional and monitoring issues in the Utility NSPS, 
and additional technical corrections to both MATS and the Utility NSPS 
(77 FR 71323). On April 24, 2013, the EPA issued the final action on 
reconsideration of the new source MATS, the definitional and monitoring 
provisions in the Utility NSPS, and the technical corrections in both 
rules (78 FR 24073). The EPA issued the final action on reconsideration 
of the startup and shutdown provisions in the MATS and Utility NSPS on 
November 19, 2014 (79 FR 68777). In addition, on February 17, 2015, the 
EPA proposed additional technical corrections to the final MATS rule 
and the Utility NSPS (80 FR 8442). These actions addressed many issues

[[Page 24220]]

raised in the petitions for reconsideration of the final MATS rule and 
the Utility NSPS.
    On April 21, 2015, the Administrator, Gina McCarthy, signed letters 
to petitioners denying the remaining issues in the petitions for 
reconsideration. The EPA carefully reviewed the petitions and evaluated 
each issue raised in the petitions for reconsideration to determine if 
they meet the CAA section 307(d)(7)(B) criteria for reconsideration. 
The EPA denied the remaining issues in the petitions for 
reconsideration because they do not meet the criteria for 
reconsideration and/or are moot as explained in detail in the 
Reconsideration Response Document. That document articulates in detail 
the rationale for the EPA's final response to each of the remaining 
issues in the petitions for reconsideration received on the final MATS 
rule and the Utility NSPS.
    As explained in the Reconsideration Response Document, a 
significant majority of the issues raised in the petitions for 
reconsideration were or could have been raised in comments on the 
proposed MATS and Utility NSPS. In addition, many of the parties that 
filed petitions for reconsideration of the final MATS and Utility NSPS 
also filed petitions for review of the final rules in the United States 
Court of Appeals for the District of Columbia Circuit (Court or D.C. 
Circuit). Many of the issues raised in the petitions for 
reconsideration were also raised in the D.C. Circuit litigation, and 
other reconsideration issues could have been raised in that litigation. 
On April 15, 2014, the Court denied all petitions for review of MATS 
and the Utility NSPS. White Stallion Energy Center v. EPA, 784 F.3d 
1222 (D.C. Cir. 2014); cert. granted, State of Michigan v. EPA, No. 14-
46 (and consolidated cases). As the Court may only consider issues 
raised during the period for public comment, issues raised in the 
litigation and addressed by the Court clearly do not meet the criteria 
for reconsideration in CAA section 307(d)(7)(B). Moreover, parties may 
not use this final action denying reconsideration as a basis to 
litigate issues that could have been raised in the initial litigation.

    Dated: April 21, 2015.
Gina McCarthy,
Administrator.
[FR Doc. 2015-10118 Filed 4-29-15; 8:45 am]
 BILLING CODE 6560-50-P