81 FR 95884 - Extension of Deadline for Action on the November 2016 Section 126 Petition From Delaware
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 250 (December 29, 2016)
Federal Register Volume 81, Issue 250 (December 29, 2016)
| Page Range | 95884-95886 | |
| FR Document | 2016-31256 |
[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)] [Rules and Regulations] [Pages 95884-95886] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-31256] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2016-0691; FRL-9957-28-OAR] Extension of Deadline for Action on the November 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 Homer City Generating Station, located in Indiana County, Pennsylvania, emits air pollution that significantly contributes to nonattainment and interferes with maintenance of the 2008 and 2015 ozone national ambient air quality standards (NAAQS) in the 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) 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 July 9, 2017. DATES: This final rule is effective on December 29, 2016. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0691. 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: Mr. Benjamin Gibson, Office of Air Quality Planning and Standards (C545-E), U.S. EPA, Research Triangle Park, North Carolina 27709, telephone number (919) 541-3277, 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 November 10, 2016. The petition requests that the EPA make a finding under section 126(b) of the CAA that the Homer City Generating Station, located in Indiana 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 [[Page 95885]] 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 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 Homer City Generating Station's three electric generating units emit air pollutants in violation of CAA section 110(a)(2)(D)(i)(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\ --------------------------------------------------------------------------- \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 Homer City Generating 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 July 9, 2017. 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 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 December 29, 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. [[Page 95886]] 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 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 February 27, 2017. 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: December 15, 2016. Gina McCarthy, Administrator. [FR Doc. 2016-31256 Filed 12-28-16; 8:45 am] BILLING CODE 6560-50-P
![95884 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations
An investment manager of a pooled activities would generally concern such for our review of a petition submitted by
investment vehicle that holds assets of issues as the independence and the state of Delaware pursuant to section
more than one employee benefit plan expertise of candidates for the 126 of the Clean Air Act (CAA). The
may be subject to a proxy voting policy corporation’s board of directors and petition requests that the EPA make a
of one plan that conflicts with the proxy assuring that the board has sufficient finding that Homer City Generating
voting policy of another plan. information to carry out its Station, located in Indiana County,
Compliance with ERISA section responsibility to monitor management. Pennsylvania, emits air pollution that
404(a)(1)(D) would require the Other issues may include such matters significantly contributes to
investment manager to reconcile, insofar as governance structures and practices, nonattainment and interferes with
as possible, the conflicting policies particularly those involving board maintenance of the 2008 and 2015
(assuming compliance with each policy composition, executive compensation, ozone national ambient air quality
would be consistent with ERISA section transparency and accountability in standards (NAAQS) in the state of
404(a)(1)(D)) and, if necessary and to the corporate decision-making, Delaware. Under section 307(d)(10) of
extent permitted by applicable law, vote responsiveness to shareholders, the CAA, the EPA is authorized to grant a
the relevant proxies to reflect such corporation’s policy regarding mergers time extension for responding to a
policies in proportion to each plan’s and acquisitions, the extent of debt petition if the EPA determines that the
interest in the pooled investment financing and capitalization, the nature extension is necessary to afford the
vehicle. If, however, the investment of long-term business plans including public, and the agency, adequate
manager determines that compliance plans on climate change preparedness opportunity to carry out the purposes of
with conflicting voting policies would and sustainability, governance and the section 307(d) notice-and-comment
violate ERISA section 404(a)(1)(D) in a compliance policies and practices for rulemaking requirements. By this
particular instance, for example, by avoiding criminal liability and ensuring action, the EPA is making that
being imprudent or not solely in the employees comply with applicable laws determination. The EPA is therefore
interest of plan participants, the and regulations, the corporation’s extending the deadline for acting on the
investment manager would be required workforce practices (e.g., investment in petition to no later than July 9, 2017.
to ignore the voting policy that would training to develop its work force, DATES: This final rule is effective on
violate ERISA section 404(a)(1)(D) in diversity, equal employment December 29, 2016.
that instance. Such an investment opportunity), policies and practices to
manager may, however, require ADDRESSES: The EPA has established a
address environmental or social factors
participating investors to accept the docket for this action under Docket ID
that have an impact on shareholder
investment manager’s own investment No. EPA–HQ–OAR–2016–0691. All
value, and other financial and non-
policy statement, including any documents in the docket are listed on
financial measures of corporate
statement of proxy voting policy, before the http://www.regulations.gov Web
performance. Active monitoring and
they are allowed to invest. As with site. Although listed in the index, some
communication may be carried out
investment policies originating from information is not publicly available,
through a variety of methods including
named fiduciaries, a policy initiated by e.g., Confidential Business Information
by means of correspondence and
an investment manager and adopted by or other information whose disclosure is
meetings with corporate management as
the participating plans would be restricted by statute. Certain other
well as by exercising the legal rights of
regarded as an instrument governing the material, such as copyrighted material,
a shareholder.
participating plans, and the investment is not placed on the Internet and will be
manager’s compliance with such a Phyllis C. Borzi, publicly available only in hard copy
policy would be governed by ERISA Assistant Secretary, Employee Benefits form. Publicly available docket
section 404(a)(1)(D). Security Administration, Department of materials are available electronically
Labor. through http://www.regulations.gov.
(3) Shareholder Engagement [FR Doc. 2016–31515 Filed 12–28–16; 8:45 am] FOR FURTHER INFORMATION CONTACT: Mr.
An investment policy that BILLING CODE 4510–29–P Benjamin Gibson, Office of Air Quality
contemplates activities intended to Planning and Standards (C545–E), U.S.
monitor or influence the management of EPA, Research Triangle Park, North
corporations in which the plan owns ENVIRONMENTAL PROTECTION Carolina 27709, telephone number (919)
stock is consistent with a fiduciary’s AGENCY 541–3277, email: gibson.benjamin@
obligations under ERISA where the epa.gov.
responsible fiduciary concludes that 40 CFR Part 52
there is a reasonable expectation that SUPPLEMENTARY INFORMATION:
such monitoring or communication with [EPA–HQ–OAR–2016–0691; FRL–9957–28–
OAR] I. Background and Legal Requirements
management, by the plan alone or
for Interstate Air Pollution
together with other shareholders, is Extension of Deadline for Action on
likely to enhance the value of the plan’s This is a procedural action to extend
the November 2016 Section 126
investment in the corporation, after the deadline for the EPA to respond to
Petition From Delaware
taking into account the costs involved. a petition from the state of Delaware
Such a reasonable expectation may exist AGENCY: Environmental Protection filed pursuant to CAA section 126(b).
in various circumstances, for example, Agency (EPA). The EPA received the petition on
where plan investments in corporate ACTION: Final rule. November 10, 2016. The petition
stock are held as long-term investments, requests that the EPA make a finding
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where a plan may not be able to easily SUMMARY: In this action, the under section 126(b) of the CAA that the
dispose of such an investment, or where Environmental Protection Agency (EPA) Homer City Generating Station, located
the same shareholder engagement issue is determining that 60 days is in Indiana County, Pennsylvania, is
is likely to exist in the case of available insufficient time to complete the operating in a manner that emits air
alternative investments. Active technical and other analyses and public pollutants in violation of the provisions
monitoring and communication notice-and-comment process required of section 110(a)(2)(D)(i)(I) of the CAA
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![95886 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations
C. Regulatory Flexibility Act (RFA) I. National Technology Transfer and ENVIRONMENTAL PROTECTION
Advancement Act (NTTAA) AGENCY
This action is not subject to the RFA.
The RFA applies only to rules subject to This rulemaking does not involve
technical standards. 40 CFR Part 180
notice-and-comment rulemaking
requirements under the APA, 5 U.S.C. [EPA–HQ–OPP–2016–0007 and EPA–HQ–
J. Executive Order 12898: Federal OPP–2016–0008; FRL–9950–40]
553, or any other statute. This rule is not Actions To Address Environmental
subject to notice-and-comment Justice in Minority Populations and Isobutyl Acetate and Isobutyric Acid;
requirements because the agency has Low-Income Populations Exemption From the Requirement of a
invoked the APA ‘‘good cause’’ The EPA believes that this action is Tolerance
exemption under 5 U.S.C. 553(b). not subject to Executive Order 12898 (59
AGENCY: Environmental Protection
D. Unfunded Mandates Reform Act FR 7629, February 16, 1994) because it
Agency (EPA).
(UMRA) does not establish an environmental
health or safety standard. This good ACTION: Final rule.
This action does not contain any cause final action simply extends the
unfunded mandate of $100 million or SUMMARY: This regulation establishes
date for the EPA to take action on a exemptions from the requirement of a
more as described in UMRA, 2 U.S.C. petition and does not have any impact
1531–1538, and does not significantly or tolerance for residues of isobutyl acetate
on human health or the environment. (CAS Reg. No. 110–19–0) and isobutyric
uniquely affect small governments. The
action imposes no enforceable duty on K. Congressional Review Act (CRA) acid (CAS Reg. No. 79–31–2) when used
any state, local or tribal governments or This action is subject to the CRA, and as inert ingredients (solvent) in
the private sector. the EPA will submit a rule report to pesticide formulations applied to
each House of the Congress and to the growing crops and raw agricultural
E. Executive Order 13132: Federalism Comptroller General of the United commodities after harvest. Technology
States. The CRA allows the issuing Sciences Group Inc. on behalf of Jeneil
This action does not have federalism Biosurfactant Company submitted a
implications. It will not have substantial agency to make a rule effective sooner
than otherwise provided by the CRA if petition to EPA under the Federal Food,
direct effects on the states, on the Drug, and Cosmetic Act (FFDCA),
relationship between the national the agency makes a good cause finding
that notice-and-comment rulemaking requesting establishment of these
government and the states, or on the exemptions from the requirement of a
distribution of power and procedures are impracticable,
unnecessary or contrary to the public tolerance. This regulation eliminates the
responsibilities among the various need to establish maximum permissible
levels of government. interest (5 U.S.C. 808(2)). The EPA has
made a good cause finding for this rule levels for residues of isobutyl acetate
F. Executive Order 13175: Consultation as discussed in Section II.B of this and isobutyric acid.
and Coordination With Indian Tribal document, including the basis for that DATES: This regulation is effective
Governments finding. December 29, 2016. Objections and
requests for hearings must be received
This action does not have tribal IV. Statutory Authority on or before February 27, 2017, and
implications, as specified in Executive The statutory authority for this action must be filed in accordance with the
Order 13175. This good cause final is provided by sections 110, 126 and instructions provided in 40 CFR part
action simply extends the date for the 307 of the CAA as amended (42 U.S.C. 178 (see also Unit I.C. of the
EPA to take action on a petition. Thus, 7410, 7426 and 7607). SUPPLEMENTARY INFORMATION).
Executive Order 13175 does not apply ADDRESSES: The dockets for this action,
to this rule. V. Judicial Review
identified by docket identification (ID)
Under section 307(b)(1) of the CAA, numbers EPA–HQ–OPP–2016–0007 and
G. Executive Order 13045: Protection of
judicial review of this final rule is EPA–HQ–OPP–2016–0008, are available
Children From Environmental Health
available only by the filing of a petition at http://www.regulations.gov or at the
and Safety Risks
for review in the U.S. Court of Appeals Office of Pesticide Programs Regulatory
The EPA interprets Executive Order for the appropriate circuit by February Public Docket (OPP Docket) in the
13045 as applying only to those 27, 2017. Under section 307(b)(2) of the Environmental Protection Agency
regulatory actions that concern CAA, the requirements that are the Docket Center (EPA/DC), West William
environmental health or safety risks that subject of this final rule may not be Jefferson Clinton Bldg., Rm. 3334, 1301
the EPA has reason to believe may challenged later in civil or criminal Constitution Ave. NW., Washington, DC
disproportionately affect children, per proceedings brought by us to enforce 20460–0001. The Public Reading Room
the definition of ‘‘covered regulatory these requirements. is open from 8:30 a.m. to 4:30 p.m.,
action’’ in section 2–202 of the List of Subjects in 40 CFR Part 52 Monday through Friday, excluding legal
Executive Order. This action is not holidays. The telephone number for the
subject to Executive Order 13045 Environmental protection,
Public Reading Room is (202) 566–1744,
because it does not concern an Administrative practices and
and the telephone number for the OPP
environmental health risk or safety risk. procedures, Air pollution control,
Docket is (703) 305–5805. Please review
Electric utilities, Incorporation by
the visitor instructions and additional
H. Executive Order 13211: Actions That reference, Intergovernmental relations,
information about the docket available
rmajette on DSK2TPTVN1PROD with RULES
Significantly Affect Energy Supply, Nitrogen oxides, Ozone.
at http://www.epa.gov/dockets.
Distribution or Use Dated: December 15, 2016. FOR FURTHER INFORMATION CONTACT:
This action is not subject to Executive Gina McCarthy, Michael Goodis, Registration Division
Order 13211, because it is not a Administrator. (7505P), Office of Pesticide Programs,
significant regulatory action under [FR Doc. 2016–31256 Filed 12–28–16; 8:45 am] Environmental Protection Agency, 1200
Executive Order 12866. BILLING CODE 6560–50–P Pennsylvania Ave. NW., Washington,
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Document Created: 2016-12-29 01:58:46
Document Modified: 2016-12-29 01:58:46
| 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 December 29, 2016. | |
| Contact | Mr. Benjamin Gibson, Office of Air Quality Planning and Standards (C545-E), U.S. EPA, Research Triangle Park, North Carolina 27709, telephone number (919) 541-3277, email: [email protected] | |
| FR Citation | 81 FR 95884 | |
| 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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