82 FR 7695 - Extension of Deadline for Action on the November 28, 2016 Section 126 Petition From Delaware
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 13 (January 23, 2017)
Federal Register Volume 82, Issue 13 (January 23, 2017)
| Page Range | 7695-7697 | |
| FR Document | 2017-00760 |
[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)] [Rules and Regulations] [Pages 7695-7697] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-00760] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2016-0764; FRL-9958-26-OAR] Extension of Deadline for Action on the November 28, 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 Conemaugh 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 August 3, 2017. DATES: This final rule is effective on January 23, 2017. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0764. 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 [[Page 7696]] 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 December 5, 2016. The petition requests that the EPA make a finding under section 126(b) of the CAA that the Conemaugh 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) 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 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 Conemaugh Generating Station's two electric generating units 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\ --------------------------------------------------------------------------- \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 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). 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 CAA 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 Conemaugh 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 August 3, 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 January 23, 2017. 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 [[Page 7697]] 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 Review 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 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 March 24, 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: January 9, 2017. Gina McCarthy, Administrator. [FR Doc. 2017-00760 Filed 1-19-17; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations 7695
Frequently Asked Questions. Office of (b) A record of each examination shall (d) The operator shall maintain the
Information and Regulatory Affairs, be made before the end of the shift for examination records for at least one
February 7, 2011. 12 pages. http:// which the examination was conducted. year, make the records available for
www.whitehouse.gov/sites/default/files/ The record shall contain the name of the inspection by authorized representatives
omb/assets/OMB/circulars/a004/a-4_
FAQ.pdf.
person conducting the examination; of the Secretary and the representatives
Smitha, M.W., et al. 2001. Effect of state date of the examination; location of all of miners, and provide these
workplace safety laws on occupational areas examined; and description of each representatives a copy on request.
injury rates. J. Occ. Environ. Med. condition found that may adversely [FR Doc. 2017–00832 Filed 1–17–17; 4:15 pm]
43(12):1001–1010. affect the safety or health of miners. BILLING CODE 4510–43–P
West Virginia Office of Miners’ Health, Safety (c) When a condition that may
and Training. 2015. Notice of Final Filing adversely affect safety or health is
and Adoption of a Legislative Rule corrected, the examination record shall
Authorized by the West Virginia ENVIRONMENTAL PROTECTION
include, or be supplemented to include, AGENCY
Legislature—Rules Governing the Safety of
Those Employed in and Around Quarries the date of the corrective action.
in West Virginia. West Virginia Secretary (d) The operator shall maintain the 40 CFR Part 52
of State Filed April 20, 2015. 83 pages. examination records for at least one
year, make the records available for [EPA–HQ–OAR–2016–0764; FRL–9958–26–
List of Subjects in 30 CFR Parts 56 and OAR]
inspection by authorized representatives
57 of the Secretary and the representatives Extension of Deadline for Action on
Explosives, Fire prevention, of miners, and provide these the November 28, 2016 Section 126
Hazardous substances, Metals, Mine representatives a copy on request. Petition From Delaware
safety and health, Reporting and
recordkeeping requirements. PART 57—SAFETY AND HEALTH AGENCY: Environmental Protection
STANDARDS—UNDERGROUND Agency (EPA).
Joseph A. Main, METAL AND NONMETAL MINES ACTION: Final rule.
Assistant Secretary of Labor for Mine Safety
and Health. ■ 3. The authority citation for part 57 SUMMARY: In this action, the
For the reasons set out in the continues to read as follows: Environmental Protection Agency (EPA)
preamble, and under the authority of the Authority: 30 U.S.C. 811. is determining that 60 days is
Federal Mine Safety and Health Act of insufficient time to complete the
■ 4. Revise § 57.18002 to read as
1977, as amended by the Mine technical and other analyses and public
follows:
Improvement and New Emergency notice-and-comment process required
Response Act of 2006, MSHA is § 57.18002 Examination of working places. for our review of a petition submitted by
amending chapter I of title 30 of the (a) A competent person designated by the state of Delaware pursuant to section
Code of Federal Regulations as follows: the operator shall examine each working 126 of the Clean Air Act (CAA). The
place at least once each shift before petition requests that the EPA make a
PART 56—SAFETY AND HEALTH miners begin work in that place, for finding that Conemaugh Generating
STANDARDS—SURFACE METAL AND conditions that may adversely affect Station, located in Indiana County,
NONMETAL MINES safety or health. Pennsylvania, emits air pollution that
(1) The operator shall promptly notify significantly contributes to
■ 1. The authority citation for part 56 nonattainment and interferes with
continues to read as follows: miners in any affected areas of any
conditions found that may adversely maintenance of the 2008 and 2015
Authority: 30 U.S.C. 811. affect safety or health and promptly ozone national ambient air quality
initiate appropriate action to correct standards (NAAQS) in the state of
■ 2. Revise § 56.18002 to read as
such conditions. Delaware. Under section 307(d)(10) of
follows:
(2) Conditions noted by the person CAA, the EPA is authorized to grant a
§ 56.18002 Examination of working places. conducting the examination that may time extension for responding to a
(a) A competent person designated by present an imminent danger shall be petition if the EPA determines that the
the operator shall examine each working brought to the immediate attention of extension is necessary to afford the
place at least once each shift before the operator who shall withdraw all public, and the agency, adequate
miners begin work in that place, for persons from the area affected (except opportunity to carry out the purposes of
conditions that may adversely affect persons referred to in section 104(c) of the section 307(d) notice-and-comment
safety or health. the Federal Mine Safety and Health Act rulemaking requirements. By this
(1) The operator shall promptly notify of 1977) until the danger is abated. action, the EPA is making that
miners in any affected areas of any (b) A record of each examination shall determination. The EPA is, therefore,
conditions found that may adversely be made before the end of the shift for extending the deadline for acting on the
affect safety or health and promptly which the examination was conducted. petition to no later than August 3, 2017.
initiate appropriate action to correct The record shall contain the name of the DATES: This final rule is effective on
such conditions. person conducting the examination; January 23, 2017.
(2) Conditions noted by the person date of the examination; location of all ADDRESSES: The EPA has established a
conducting the examination that may areas examined; and description of each docket for this action under Docket ID
mstockstill on DSK3G9T082PROD with RULES
present an imminent danger shall be condition found that may adversely No. EPA–HQ–OAR–2016–0764. All
brought to the immediate attention of affect the safety or health of miners. documents in the docket are listed on
the operator who shall withdraw all (c) When a condition that may the http://www.regulations.gov Web
persons from the area affected (except adversely affect safety or health is site. Although listed in the index, some
persons referred to in section 104(c) of corrected, the examination record shall information is not publicly available,
the Federal Mine Safety and Health Act include, or be supplemented to include, e.g., Confidential Business Information
of 1977) until the danger is abated. the date of the corrective action. or other information whose disclosure is
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![Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations 7697
the final rule. It would not be possible action simply extends the date for the 307 of the CAA as amended (42 U.S.C.
for the EPA to complete the required EPA to take action on a petition. Thus, 7410, 7426 and 7607).
notice and comment and public hearing Executive Order 13175 does not apply
V. Judicial Review
process within the original 60-day to this rule.
period noted in the statute. These Under section 307(b)(1) of the CAA,
G. Executive Order 13045: Protection of judicial review of this final rule is
reasons support an immediate effective
date. Children From Environmental Health available only by the filing of a petition
and Safety Risks for review in the U.S. Court of Appeals
III. Statutory and Executive Order The EPA interprets Executive Order for the appropriate circuit by March 24,
Reviews 13045 as applying only to those 2017. Under section 307(b)(2) of the
A. Executive Orders 12866: Regulatory regulatory actions that concern CAA, the requirements that are the
Planning and Review and Executive environmental health or safety risks that subject of this final rule may not be
Order 13563: Improving Regulation and the EPA has reason to believe may challenged later in civil or criminal
Regulatory Review disproportionately affect children, per proceedings brought by us to enforce
This action is exempt from review by the definition of ‘‘covered regulatory these requirements.
the Office of Management and Budget action’’ in section 2–202 of the
List of Subjects in 40 CFR Part 52
because it simply extends the date for Executive Order. This action is not
the EPA to take action on a petition. subject to Executive Order 13045 Environmental protection,
because it does not concern an Administrative practices and
B. Paperwork Reduction Act (PRA) environmental health risk or safety risk. procedures, Air pollution control,
This action does not impose an Electric utilities, Incorporation by
H. Executive Order 13211: Actions That reference, Intergovernmental relations,
information collection burden under the Significantly Affect Energy Supply,
PRA. This good cause final action Nitrogen oxides, Ozone.
Distribution or Use
simply extends the date for the EPA to Dated: January 9, 2017.
take action on a petition and does not This action is not subject to Executive
Gina McCarthy,
impose any new obligations or Order 13211 because it is not a
Administrator.
enforceable duties on any state, local or significant regulatory action under
Executive Order 12866. [FR Doc. 2017–00760 Filed 1–19–17; 8:45 am]
tribal governments or the private sector.
BILLING CODE 6560–50–P
It does not contain any recordkeeping or I. National Technology Transfer and
reporting requirements. Advancement Act (NTTAA)
C. Regulatory Flexibility Act (RFA) This rulemaking does not involve DEPARTMENT OF HOMELAND
This action is not subject to the RFA. technical standards. SECURITY
The RFA applies only to rules subject to J. Executive Order 12898: Federal
notice-and-comment rulemaking Federal Emergency Management
Actions To Address Environmental Agency
requirements under the APA, 5 U.S.C. Justice in Minority Populations and
553, or any other statute. This rule is not Low-Income Populations
subject to notice-and-comment 44 CFR Part 64
requirements because the agency has The EPA believes that this action is
[Docket ID FEMA–2016–0002; Internal
invoked the APA good cause exemption not subject to Executive Order 12898 (59 Agency Docket No. FEMA–8463]
under 5 U.S.C. 553(b). FR 7629, February 16, 1994) because it
does not establish an environmental Suspension of Community Eligibility
D. Unfunded Mandates Reform Act health or safety standard. This good
(UMRA) cause final action simply extends the AGENCY: Federal Emergency
This action does not contain any date for the EPA to take action on a Management Agency, DHS.
unfunded mandate of $100 million or petition and does not have any impact ACTION: Final rule.
more as described in UMRA, 2 U.S.C. on human health or the environment.
1531–1538, and does not significantly or SUMMARY: This rule identifies
K. Congressional Review Act (CRA) communities where the sale of flood
uniquely affect small governments. The
action imposes no enforceable duty on This action is subject to the CRA, and insurance has been authorized under
any state, local or tribal governments or the EPA will submit a rule report to the National Flood Insurance Program
the private sector. each House of the Congress and to the (NFIP) that are scheduled for
Comptroller General of the United suspension on the effective dates listed
E. Executive Order 13132: Federalism States. The CRA allows the issuing within this rule because of
This action does not have federalism agency to make a rule effective sooner noncompliance with the floodplain
implications. It will not have substantial than otherwise provided by the CRA if management requirements of the
direct effects on the states, on the the agency makes a good cause finding program. If the Federal Emergency
relationship between the national that notice-and-comment rulemaking Management Agency (FEMA) receives
government and the states, or on the procedures are impracticable, documentation that the community has
distribution of power and unnecessary or contrary to the public adopted the required floodplain
responsibilities among the various interest (5 U.S.C. 808(2)). The EPA has management measures prior to the
levels of government. made a good cause finding for this rule effective suspension date given in this
mstockstill on DSK3G9T082PROD with RULES
as discussed in Section II.B of this rule, the suspension will not occur and
F. Executive Order 13175: Consultation document, including the basis for that a notice of this will be provided by
and Coordination With Indian Tribal finding. publication in the Federal Register on a
Governments subsequent date. Also, information
This action does not have tribal IV. Statutory Authority identifying the current participation
implications, as specified in Executive The statutory authority for this action status of a community can be obtained
Order 13175. This good cause final is provided by sections 110, 126 and from FEMA’s Community Status Book
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Document Created: 2017-01-20 01:29:37
Document Modified: 2017-01-20 01:29:37
| 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 January 23, 2017. | |
| 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 | 82 FR 7695 | |
| 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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