[Federal Register Volume 81, Number 142 (Monday, July 25, 2016)]
[Rules and Regulations]
[Pages 48348-48350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17412]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2016-0347; FRL-9949-42-OAR]


Extension of Deadline for Action on the Section 126 Petition From 
Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, the Environmental Protection Agency (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 state of Connecticut pursuant 
to section 126 of the Clean Air Act (CAA). The petition requests that 
the EPA make a finding that the Brunner Island Steam Electric Station 
located in York County, Pennsylvania, emits air pollution that 
significantly contributes to nonattainment and interferes with 
maintenance of the 2008 ozone national ambient air quality standards 
(NAAQS) in Connecticut. Under 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 the 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 
January 25, 2017.

DATES: This final rule is effective on July 25, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2016-0347. 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 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 electronically through http://www.regulations.gov.

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, 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 state of Connecticut filed pursuant to 
CAA section 126(b). The EPA received the petition on June 1, 2016. The 
petition requests that the EPA make a finding under section 126(b) of 
the CAA that the Brunner Island Steam Electric Station located in York 
County, Pennsylvania is operating in a manner that emits air pollutants 
in violation of the provisions of section 110(a)(2)(D)(i)(I) of the CAA 
with respect to the 2008 ozone NAAQS.
    Section 126(b) of the CAA authorizes states 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 CAA section 110(a)(2)(D)(i) \1\ by contributing 
significantly to nonattainment or maintenance problems in downwind 
states. 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 
Brunner Island's three major boiler units are linked to downwind 
nonattainment and maintenance ozone receptor sites in Connecticut for 
the 2008 ozone NAAQS and that this impact would be mitigated by 
regulation of nitrogen oxide emissions at the plant or shutting down 
the plant.
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    \1\ The text of CAA section 126 codified in the United States 
Code cross references CAA section 110(a)(2)(D)(ii) instead of CAA 
section 110(a)(2)(D)(i). The courts have confirmed that this is a 
scrivener's error and the correct cross reference is to CAA 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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    Pursuant to CAA 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 CAA 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.
    CAA 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 CAA 
section 307(d)(1)(N). One of these requirements is notice-and-comment 
rulemaking, under section 307(d)(3)-(6).
    In addition, CAA section 307(d)(10) provides for a time extension, 
under certain circumstances, for a rulemaking subject to CAA section 
307(d). Specifically, CAA 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.

    CAA section 307(d)(10) may be applied to section 126 rulemakings 
because the 60-day time limit under CAA 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 CAA section 307(d)(10), the EPA is determining 
that

[[Page 48349]]

the 60-day period afforded by CAA section 126(b) for responding to the 
petition from the state of Connecticut is not adequate to allow the 
public and the agency the opportunity to carry out the purposes of CAA 
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 
the Brunner Island Steam Electric Station identified in the CAA section 
126 petition contributes significantly to nonattainment or interferes 
with maintenance of the 2008 ozone NAAQS in Connecticut. 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 is in the process of 
determining an appropriate schedule for action on the CAA section 126 
petition. This schedule must afford the EPA adequate time to prepare a 
proposal that clearly elucidates the 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 January 25, 2017.

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, the deadline for action on the CAA section 126 petition 
should be extended pursuant to section 307(d)(10) of CAA. Congress may 
not have intended a CAA section 307(d)(10) extension determination to 
be subject to notice-and-comment rulemaking. However, to the extent 
that this extension 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 of this extension determination under 
section 307(d)(10) of CAA 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 CAA section 126 petition.

C. Effective Date Under the APA

    This action is effective on July 25, 2016. 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. As 
discussed earlier, 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 exempt from review by the Office of Management and 
Budget because it simply extends the date for the EPA to take action on 
a petition.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA. 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 (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice-and-comment rulemaking requirements under the 
APA, 5 U.S.C. 553, or any other statute. This rule is not subject to 
notice-and-comment requirements because the agency has invoked the APA 
``good cause'' exemption under 5 U.S.C. 553(b).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector.

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.

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

    This action does not have tribal implications, 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 rule.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action is not subject to Executive Order 
12898 (59 FR 7629, February 16, 1994) because it does not establish an 
environmental health or safety standard. This good cause final action 
simply extends the date for the EPA to take action on a petition and 
does not have any impact on human health or the environment.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to

[[Page 48350]]

each House of the Congress and to the Comptroller General of the United 
States. The CRA 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-comment rulemaking procedures are 
impracticable, unnecessary or contrary to the public interest (5 U.S.C. 
808(2)). The EPA has made a good cause finding for this rule as 
discussed in Section II.B of this document, including the basis for 
that finding.

IV. Statutory Authority

    The statutory authority for this action is provided by sections 
110, 126 and 307 of the CAA 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 September 
23, 2016. 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: July 14, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016-17412 Filed 7-22-16; 8:45 am]
 BILLING CODE 6560-50-P