81 FR 57461 - Extension of Deadline for Action on the July 2016 Section 126 Petition From Delaware
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 163 (August 23, 2016)
Federal Register Volume 81, Issue 163 (August 23, 2016)
| Page Range | 57461-57463 | |
| FR Document | 2016-20140 |
[Federal Register Volume 81, Number 163 (Tuesday, August 23, 2016)] [Rules and Regulations] [Pages 57461-57463] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-20140] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2016-0402; FRL-9951-18-OAR] Extension of Deadline for Action on the July 2016 Section 126 Petition From Delaware 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 submitted by the state of Delaware 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, emit air pollution that significantly contributes to nonattainment and interferes with maintenance of the 2008 and 2015 ozone national ambient air quality standards (NAAQS) in state of Delaware. Under section 307(d)(10) of 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)'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 March 5, 2017. DATES: This final rule is effective on August 23, 2016. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0402. 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 Delaware filed pursuant to CAA section 126(b). The EPA received the petition on July 7, 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 and 2015 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 [[Page 57462]] 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 the Brunner Island's three major boiler units significantly contribute to Delaware's nonattainment of 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\ --------------------------------------------------------------------------- \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). \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. 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 the 60-day period afforded by CAA section 126(b) for responding to the petition from the state of Delaware 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 or the 2015 ozone NAAQS in Delaware. 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 March 5, 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. 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 petition. C. Effective Date Under the APA This action is effective on August 23, 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 not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. 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). [[Page 57463]] 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 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 appropriate circuit by October 24, 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, Nitrogen oxides, Ozone. Dated: August 15, 2016. Gina McCarthy, Administrator. [FR Doc. 2016-20140 Filed 8-22-16; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Rules and Regulations 57461
U.S.C. 4321–4370f), and have (COTP) in the enforcement of the safety Delaware. Under section 307(d)(10) of
determined that this action is one of a zone. CAA, the EPA is authorized to grant a
category of actions that do not (c) Regulations. (1) Under the general time extension for responding to a
individually or cumulatively have a safety zone regulations in subpart C of petition if the EPA determines that the
significant effect on the human this part, you may not enter the safety extension is necessary to afford the
environment. This rule involves a safety zone described in paragraph (a) of this public, and the agency, adequate
zone lasting two hours that will prohibit section unless authorized by the COTP opportunity to carry out the purposes of
entry from mile 180 to 180.5 on the or the COTP’s designated representative. the section 307(d)’s notice-and-
UMR. It is categorically excluded from (2) To seek permission to enter, comment rulemaking requirements. By
further review under paragraph 34(g) of contact the COTP or the COTP’s this action, the EPA is making that
Figure 2–1 of the Commandant representative via VHF–FM channel 16, determination. The EPA is therefore
Instruction. An environmental analysis or through Coast Guard Sector Upper extending the deadline for acting on the
checklist supporting this determination Mississippi River at 314–269–2332. petition to no later than March 5, 2017.
and a Categorical Exclusion Those in the safety zone must comply DATES: This final rule is effective on
Determination are available in the with all lawful orders or directions August 23, 2016.
docket where indicated under given to them by the COTP or the ADDRESSES: The EPA has established a
ADDRESSES. We seek any comments or COTP’s designated representative. docket for this action under Docket ID
information that may lead to the (d) Enforcement periods. This section No. EPA–HQ–OAR–2016–0402. All
discovery of a significant environmental will be enforced from 8:30 p.m. to 10:30 documents in the docket are listed on
impact from this rule. p.m. on September 3, 2016. the http://www.regulations.gov Web
(e) Informational Broadcasts. The site. Although listed in the index, some
G. Protest Activities
COTP or a designated representative information is not publicly available,
The Coast Guard respects the First will inform the public through e.g., Confidential Business Information
Amendment rights of protesters. broadcast notices to mariners of the or other information whose disclosure is
Protesters are asked to contact the enforcement period for the safety zone restricted by statute. Certain other
person listed in the FOR FURTHER as well as any changes in the dates and material, such as copyrighted material,
INFORMATION CONTACT section to times of enforcement. is not placed on the Internet and will be
coordinate protest activities so that your Dated: August 17, 2016. publicly available only in hard copy
message can be received without form. Publicly available docket
M.L. Malloy
jeopardizing the safety or security of materials are available electronically
people, places or vessels. Captain, U.S. Coast Guard, Captain of the
Port Upper Mississippi River. through http://www.regulations.gov.
List of Subjects in 33 CFR Part 165 [FR Doc. 2016–20084 Filed 8–22–16; 8:45 am] FOR FURTHER INFORMATION CONTACT: Ms.
Harbors, Marine safety, Navigation BILLING CODE 9110–04–P Gobeail McKinley, Office of Air Quality
(water), Reporting and recordkeeping Planning and Standards (C504–04), U.S.
requirements, Security measures, and EPA, Research Triangle Park, North
Waterways. ENVIRONMENTAL PROTECTION Carolina 27709, telephone number (919)
For the reasons discussed in the AGENCY 541–5246, email: mckinley.gobeail@
preamble, the Coast Guard amends 33 epa.gov.
CFR part 165 as follows: 40 CFR Part 52 SUPPLEMENTARY INFORMATION:
[EPA–HQ–OAR–2016–0402; FRL–9951–18- I. Background and Legal Requirements
PART 165—REGULATED NAVIGATION OAR]
AREAS AND LIMITED ACCESS AREAS for Interstate Air Pollution
Extension of Deadline for Action on This is a procedural action to extend
■ 1. The authority citation for part 165 the July 2016 Section 126 Petition the deadline for the EPA to respond to
continues to read as follows: From Delaware a petition from the state of Delaware
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; filed pursuant to CAA section 126(b).
AGENCY: Environmental Protection
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; The EPA received the petition on July
Department of Homeland Security Delegation Agency (EPA).
7, 2016. The petition requests that the
No. 0170.1. ACTION: Final rule. EPA make a finding under section
■ 2. Add § 165.T08–0689 to read as 126(b) of the CAA that the Brunner
follows: SUMMARY: In this action, the
Island Steam Electric Station located in
Environmental Protection Agency (EPA)
York County, Pennsylvania, is operating
§ 165.T08–0689 Safety Zone; Upper is determining that 60 days is
in a manner that emits air pollutants in
Mississippi River between miles 180 and insufficient time to complete the
180.5; St. Louis, MO. violation of the provisions of section
technical and other analyses and public
110(a)(2)(D)(i)(I) of the CAA with
(a) Location. The following area is a notice-and-comment process required
respect to the 2008 and 2015 ozone
safety zone: All waters of the Upper for our review of a petition submitted by
NAAQS.
Mississippi River between miles 180 to the state of Delaware pursuant to section
Section 126(b) of the CAA authorizes
180.5, St. Louis, MO. 126 of the Clean Air Act (CAA). The
states to petition the EPA to find that a
(b) Definitions. As used in this petition requests that the EPA make a
major source or group of stationary
section, designated representative finding that the Brunner Island Steam
sources in upwind states emits or would
means a Coast Guard Patrol Electric Station located in York County,
ehiers on DSK5VPTVN1PROD with RULES
emit any air pollutant in violation of the
Commander, including a Coast Guard Pennsylvania, emit air pollution that
prohibition of CAA section
coxswain, petty officer, or other officer significantly contributes to
110(a)(2)(D)(i) 1 by contributing
operating a Coast Guard vessel and a nonattainment and interferes with
Federal, State, and local officer maintenance of the 2008 and 2015 1 The text of CAA section 126 codified in the
designated by or assisting the Captain of ozone national ambient air quality United States Code cross references CAA section
the Port Upper Mississippi River standards (NAAQS) in state of Continued
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![Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Rules and Regulations 57463
D. Unfunded Mandates Reform Act health or safety standard. This good ENVIRONMENTAL PROTECTION
(UMRA) cause final action simply extends the AGENCY
This action does not contain any date for the EPA to take action on a
unfunded mandate of $100 million or petition and does not have any impact 40 CFR Part 52
more as described in UMRA, 2 U.S.C. on human health or the environment. [EPA–R05–OAR–2015–0075; FRL–9950–86–
1531–1538, and does not significantly or Region 5]
K. Congressional Review Act (CRA)
uniquely affect small governments. The
action imposes no enforceable duty on Air Plan Approval; Wisconsin;
This action is subject to the CRA, and
any state, local or tribal governments or Kenosha County 2008 8-Hour Ozone
the EPA will submit a rule report to
the private sector. Nonattainment Area Reasonable
each House of the Congress and to the Further Progress Plan
E. Executive Order 13132: Federalism Comptroller General of the United
States. The CRA allows the issuing AGENCY: Environmental Protection
This action does not have federalism Agency (EPA).
agency to make a rule effective sooner
implications. It will not have substantial ACTION: Direct final rule.
direct effects on the states, on the than otherwise provided by the CRA if
relationship between the national the agency makes a good cause finding
SUMMARY: The Environmental Protection
government and the states, or on the that notice-and-comment rulemaking Agency (EPA) is approving an Early
distribution of power and procedures are impracticable, Progress Plan and motor vehicle
responsibilities among the various unnecessary or contrary to the public emissions budgets (MVEBs) for volatile
levels of government. interest (5 U.S.C. 808(2)). The EPA has organic compounds (VOCs) and oxides
made a good cause finding for this rule of nitrogen (NOX) for the Kenosha
F. Executive Order 13175: Consultation as discussed in Section II.B of this County, Wisconsin 8-hour ozone
and Coordination With Indian Tribal document, including the basis for that nonattainment area. Wisconsin
Governments finding. submitted an Early Progress Plan for
This action does not have tribal Kenosha County on January 16, 2015.
implications, as specified in Executive IV. Statutory Authority
This submittal was developed to
Order 13175. This good cause final The statutory authority for this action establish MVEBs for the Kenosha 2008
action simply extends the date for the 8-hour ozone nonattainment area. This
is provided by sections 110, 126 and
EPA to take action on a petition. Thus, approval of the Early Progress Plan for
307 of the CAA as amended (42 U.S.C.
Executive Order 13175 does not apply the Kenosha 2008 8-hour ozone
7410, 7426 and 7607).
to this rule. nonattainment area is based on EPA’s
G. Executive Order 13045: Protection of V. Judicial Review determination that Wisconsin has
Children From Environmental Health demonstrated that the State
Under section 307(b)(1) of the CAA, Implementation Plan (SIP) revision
and Safety Risks judicial review of this final rule is containing these MVEBs, when
The EPA interprets Executive Order available only by the filing of a petition considered with the emissions from all
13045 as applying only to those for review in the U.S. Court of Appeals sources, shows progress toward
regulatory actions that concern for the appropriate circuit by October attainment from the 2011 base year
environmental health or safety risks that 24, 2016. Under section 307(b)(2) of the through a 2015 target year.
the EPA has reason to believe may CAA, the requirements that are the DATES: This direct final rule will be
disproportionately affect children, per subject of this final rule may not be effective October 24, 2016, unless EPA
the definition of ‘‘covered regulatory challenged later in civil or criminal receives adverse comments by
action’’ in section 2–202 of the proceedings brought by us to enforce September 22, 2016. If adverse
Executive Order. This action is not these requirements. comments are received, EPA will
subject to Executive Order 13045 publish a timely withdrawal of the
because it does not concern an List of Subjects in 40 CFR Part 52 direct final rule in the Federal Register
environmental health risk or safety risk. informing the public that the rule will
Environmental protection,
H. Executive Order 13211: Actions That Administrative practices and not take effect.
Significantly Affect Energy Supply, procedures, Air pollution control, ADDRESSES: Submit your comments,
Distribution or Use Electric utilities, Incorporation by identified by Docket ID No. EPA–R05–
This action is not subject to Executive reference, Intergovernmental relations, OAR–2015–0075 at http://
Order 13211, because it is not a www.regulations.gov or via email to
Nitrogen oxides, Ozone.
significant regulatory action under persoon.carolyn@epa.gov. For
Dated: August 15, 2016. comments submitted at Regulations.gov,
Executive Order 12866.
Gina McCarthy, follow the online instructions for
I. National Technology Transfer and Administrator. submitting comments. Once submitted,
Advancement Act (NTTAA) comments cannot be edited or removed
[FR Doc. 2016–20140 Filed 8–22–16; 8:45 am]
This rulemaking does not involve from Regulations.gov. For either manner
BILLING CODE 6560–50–P
technical standards. of submission, EPA may publish any
comment received to its public docket.
J. Executive Order 12898: Federal Do not submit electronically any
Actions To Address Environmental information you consider to be
ehiers on DSK5VPTVN1PROD with RULES
Justice in Minority Populations and Confidential Business Information (CBI)
Low-Income Populations or other information whose disclosure is
The EPA believes that this action is restricted by statute. Multimedia
not subject to Executive Order 12898 (59 submissions (audio, video, etc.) must be
FR 7629, February 16, 1994) because it accompanied by a written comment.
does not establish an environmental The written comment is considered the
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Document Created: 2018-02-09 11:40:29
Document Modified: 2018-02-09 11:40:29
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on August 23, 2016. | |
| 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] | |
| FR Citation | 81 FR 57461 | |
| CFR Associated | Environmental Protection; Administrative Practices and Procedures; Air Pollution Control; Electric Utilities; Incorporation by Reference; Intergovernmental Relations; Nitrogen Oxides and Ozone |
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