[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21909-21912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09892]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2018-0170; FRL-9977-90-OAR]
RIN 2060-AU02


Extension of Deadline for Action on the Section 126(b) Petition 
From New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

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 dated March 12, 2018, submitted by the state 
of New York pursuant to section 126(b) of the Clean Air Act (CAA). The 
petition requests that the EPA make a finding that emissions from the 
collection of identified sources in nine states (Illinois, Indiana, 
Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West 
Virginia) significantly contribute to and interfere with maintenance of 
the 2008 and 2015 ozone national ambient air quality standards (NAAQS) 
in New York State. Under section 307(d)(10) of the CAA, the EPA is 
authorized to grant a time extension for responding to a 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) 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 from May 
13, 2018, to no later than November 9, 2018.

DATES: This final rule is effective on May 11, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2018-0170. All documents in the docket are 
listed on the http://www.regulations.gov website. 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: Mr. Lev Gabrilovich, U.S. 
Environmental Protection Agency, Office of Air Quality Planning and 
Standards, Air Quality Policy Division, Mail Code C539-01, Research 
Triangle Park, NC 27711, telephone (919) 541-1496; email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background and Legal Standard

    This is a procedural action to extend the deadline for the EPA to 
respond to a petition from the state of New York filed pursuant to CAA 
section 126(b). The EPA received the petition on March 14, 2018. The 
petition requests that the EPA make a finding under section 126(b) of 
the CAA that emissions from the collection of identified sources in 
nine states (Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, 
Pennsylvania, Virginia and West Virginia) significantly contribute to 
and interfere with maintenance of the 2008 and 2015 ozone NAAQS in New 
York in violation of the provisions of section 110(a)(2)(D)(i) of the 
CAA, also known as the ``good neighbor'' provisions.
    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 interfering with 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. 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.
---------------------------------------------------------------------------

    \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 (DC Cir. 2001).
---------------------------------------------------------------------------

    The CAA section 126(b) petition from the state of New York requests 
that the EPA make a finding that, within each of the identified nine 
upwind states, certain sources within the electric generating unit 
(EGU) and non-EGU sectors collectively emit air pollutants in violation 
of CAA section 110(a)(2)(D)(i) with respect to the 2008 8-hour ozone 
NAAQS, set at 0.075 parts per million (ppm), and the revised 2015 8-
hour ozone NAAQS, set at 0.070 ppm.\2\
---------------------------------------------------------------------------

    \2\ On October 1, 2015, the EPA strengthened the ground-level 
ozone NAAQS, based on extensive scientific evidence about ozone's 
effects on public health and welfare. See 80 FR 65291 (October 26, 
2015).
---------------------------------------------------------------------------

    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 and after holding a public hearing. In addition to the 
public hearing provisions in CAA section 126(b), the EPA's action under

[[Page 21910]]

CAA 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). Section 
307(d)(3) of the CAA provides minimum requirements for the contents of 
a proposed action subject to 307(d), including summarizing the 
methodology used in analyzing data on which the proposed action is 
based and the major legal interpretations and policy considerations 
underlying the proposal. CAA section 307(d)(6) requires that the final 
action be equally detailed and include an explanation of any major 
changes from proposal and a response to each significant comment 
received.
    With respect to the public hearing, the EPA must provide sufficient 
notice to the public. The Federal Register Act identifies 15 days' 
notice as the timeframe presumed to be sufficient notice to the public 
in advance of a public hearing. See 44 U.S.C. Section 1508. CAA section 
307(d)(5) also provides specific direction for the conduct of public 
hearings, requiring at (iv), that ``the Administrator shall keep the 
record of [the public hearing] open for thirty days after the 
completion of the proceeding to provide for an opportunity for 
submission of rebuttal and supplementary information.''
    In sum, the statutory requirements governing the EPA's action on a 
CAA section 126(b) petition necessitate the following procedural steps: 
Conducting technical, legal, and policy review of a submitted petition; 
developing an adequate proposal; providing sufficient notice of a 
public hearing; holding the public hearing; allowing sufficient time 
for notice and comment on both the proposal and public hearing record 
and developing responses to comments received and a final action on the 
petition.
    Section 307(d)(10) of the CAA provides for a time extension, under 
certain circumstances, for a rulemaking subject to 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.

    The EPA believes that the plain language of this provision allows 
the EPA to extend statutory deadlines for rulemakings enumerated in CAA 
section 307(d)(1) that are subject to deadlines with less than 6 months 
between a proposed and final action. The phrase ``which requires 
promulgation less than six months after date of proposal'' clearly 
specifies the type of deadline that may be extended, while the phrase 
``may be extended to not more than six months after date of proposal'' 
limits the duration of an extension invoked under this provision. 
Notably, neither of these phrases, nor the provision in its entirety, 
impose any predicate steps on the EPA for invoking an extension other 
than determining that such an extension is necessary to afford the 
public, and the agency, adequate opportunity to carry out the purposes 
of CAA section 307(d).
    To the extent the terms of this provision are ambiguous, the EPA 
believes its interpretation of these terms is reasonable. The stated 
purpose of this provision is to provide both the public and the EPA 
adequate opportunity to effectuate the objectives of CAA section 307(d) 
regarding rulemaking. Interpreting CAA section 307(d)(10) to require 
the EPA to take some substantive predicate rulemaking step in a shorter 
timeframe to invoke the 6-month extension would contradict the stated 
purpose of the extension, as taking a predicate action within such 
shorter timeframe risks undermining the same reasons for invoking the 
extension. For example, were the EPA required to issue a proposed 
action on a CAA section 126(b) petition within 60 days of receipt to 
invoke the 6-month extension, the EPA may risk inadequately meeting the 
requirements of CAA section 307(d)(3) governing the minimum contents of 
such proposal depending on the technical complexity of the petition and 
other factors involved in developing an adequate proposal. Given that 
the purpose of an extension under CAA section 307(d)(10) is, in part, 
to provide the EPA with adequate opportunity to meet the requirements 
of section 307(d), it follows that the extension should be available 
for both the EPA's proposed and final action on a section 126(b) 
petition.
    Additionally, the EPA notes that CAA section 307(d)(1) does not 
speak to when the EPA must determine that an extension is necessary. 
The EPA acknowledges that the timeframes set out under CAA sections 
126(b) and 307(d)(10) indicate Congress's clear intent that the EPA act 
quickly on a section 126 petition. Considering this intent, the EPA 
reasonably interprets CAA section 307(d)(10) to require the EPA to make 
the necessary determination in invoking a 6-month extension no later 
than the end of the original response time provided by section 126(b) 
for acting on a petition, which is 60-days from receipt. Such 
interpretation ensures that that the overall legal deadline for the 
EPA's action on a CAA section 126(b) petition does not exceed the 
aggregate eight-month deadline provided under the CAA (i.e., 60 days 
provided under section 126(b) plus 6 months provided under section 
307(d)(10)). Finally, under the EPA's reasonable reading of CAA section 
307(d)(10), this extension may be invoked only once.
    The EPA believes its reading of the extension provision under CAA 
section 307(d)(10) is consistent with Congress's dual intent of 
ensuring that the EPA acts expeditiously on a CAA section 126(b) 
petition and ensuring that the public has adequate opportunity to 
participate in the EPA's rulemaking process on such a petition. As 
described previously, the extension will allow the EPA to undertake the 
appropriate and necessary public participation processes, such as 
holding a public hearing on a proposed action on New York's petition.
    Based on either a plain reading of the language, or, in the 
alternative, a reasonable reading of the provision in the event of 
ambiguity, CAA section 307(d)(10), therefore, may be applied to CAA 
section 126(b) 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 the 60-day period afforded by CAA section 126(b) for responding to 
the petition from the state of New York is not adequate time to allow 
the public, and the agency, the opportunity to carry out the purposes 
of CAA section 307(d). In making this determination, the EPA has met 
the necessary steps to invoke a 6-month extension for acting on New 
York's CAA section 126(b) petition. Specifically, the 60-day period is 
insufficient time for the EPA to complete the necessary technical 
review of the petition, develop an adequate proposal, and allow time 
for notice and comment, including an opportunity for public hearing, on 
a proposed finding regarding whether emissions from the collection of 
identified EGU and non-EGU sources in nine states (Illinois, Indiana, 
Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West 
Virginia) significantly contribute to and interfere with maintenance of 
the 2008 and 2015 ozone NAAQS in New York

[[Page 21911]]

State. Moreover, the 60-day period is insufficient for the EPA to 
review and develop responses 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. Particularly, 
the timeframes for notice of the public hearing and duration of comment 
period after the hearing itself would consume 45 days (presuming 15 
days' notice of the hearing, and a 30-day comment period thereafter), 
leaving a total of 15 days of the 60-day period to complete the 
previously identified steps needed to review the petition, develop a 
proposal, review and develop responses 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. An 
appropriate schedule for action on the CAA section 126(b) petition 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. 
With this extension, the deadline for the EPA to act on the petition is 
revised from May 13, 2018, to November 9, 2018. The EPA does not intend 
to grant itself any further extension under this provision if upon 
expiration of this extension the EPA has not yet acted on New York's 
section 126(b) petition.

B. Notice and Comment Under the Administrative Procedure 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 the EPA to 
make a finding, the deadline for action on the CAA section 126(b) 
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 CAA section 126(b) 
petition.

C. Effective Date Under the APA

    This action is effective on May 11, 2018. 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. 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 Review

    This action is exempt from review by the Office of Management and 
Budget because it simply extends the date for the EPA to act on a 
petition.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. 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 act 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.

D. 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).

E. 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.

F. 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.

G. 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 act on a petition. Thus, Executive Order 13175 does 
not apply to this rule.

H. 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.

I. 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.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. 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 act on a petition and does not 
have any impact on human health or the environment.

[[Page 21912]]

L. Congressional Review Act (CRA)

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practices and procedures, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Nitrogen oxides, Ozone.

    Dated: May 3, 2018.
E. Scott Pruitt,
Administrator.
[FR Doc. 2018-09892 Filed 5-8-18; 8:45 am]
 BILLING CODE 6560-50-P