Final Determination To Extend Deadline for Promulgation of Action on Section 126 Petitions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5911-8]

Final Determination To Extend Deadline for Promulgation of Action

on Section 126 Petitions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is extending by an additional one month the deadline

for taking final action on petitions that eight States have submitted

to require EPA to make findings that sources upwind of those States

contribute significantly to nonattainment problems in those States.

Under the Clean Air Act (CAA or Act), EPA is authorized to grant this

time extension if EPA determines that the extension is necessary, among

other things, to meet the purposes of the Act's rulemaking

requirements. By this document, EPA is making that determination. The

eight States that have submitted the petitions are Connecticut, Maine,

Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and

Vermont.

EFFECTIVE DATE: This action is effective as of October 14, 1997.

FOR FURTHER INFORMATION CONTACT: Howard J. Hoffman, Office of General

Counsel, MC-2344, 401 M St. SW, Washington, DC 20460, (202) 260-5892.

SUPPLEMENTARY INFORMATION:

I. Background

Today's action is procedural, and is set in the context of a series

of actions EPA is taking to address the problem of the transport of

tropospheric ozone and its precursors--especially oxides of nitrogen

(NOX)--across the eastern region of the United States.

The most recent step EPA has taken to address regional ozone

transport was the signing of a proposed rulemaking that the State

implementation plans (SIPs) of 22 States and the District of Columbia,

all in the eastern half of the United States, must be revised under CAA

sections 110(k)(5) and 110(a)(1) to include provisions reducing

NOX emissions because those emissions contribute

significantly to ozone nonattainment or maintenance problems in

downwind states. EPA Administrator Carol M. Browner signed this

proposed rulemaking--referred to in this notice as the NOX

SIP call--on October 10, 1997. The proposal is designed to assure that

SIPs meet the requirements of CAA section 110(a)(2)(D), which mandates

that SIPs contain adequate provisions prohibiting emissions that

significantly contribute to downwind nonattainment problems. This

proposal is based on information indicating that emissions from those

23 jurisdictions have an adverse impact on downwind areas with respect

to both of the ozone National Ambient Air Quality Standards (NAAQS)--

the long-standing one-hour standard and the eight-hour standard that

was promulgated by notice dated July 18, 1997 (62 FR 38856). EPA's

proposals were based generally on recommendations and technical

analyses from the Ozone Transport Assessment Group (OTAG), which was an

organization comprising EPA, states,

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industry, and citizens groups that was formed to focus on interstate

ozone transport.

In contrast, today's action is based on a separate set of statutory

tools designed to remedy interstate pollution transport that are found

in CAA section 126. Section 126(b) authorizes States or political

subdivisions to petition EPA for a finding that major stationary

sources in upwind states emit in violation of the prohibition of

section 110(a)(2)(D), by contributing significantly to nonattainment

problems in downwind States.

Beginning on August 14, 1997, EPA received eight petitions under

section 126 from eight states. These eight states (and the dates that

EPA received the petitions), are:

Connecticut (August 15, 1997)

Maine (August 15, 1997)

Massachusetts (August 14, 1997)

New Hampshire (August 15, 1997)

New York (August 15, 1997)

Pennsylvania (August 15, 1997)

Rhode Island (August 14, 1997)

Vermont (August 15, 1997)

Taken together, the petitions ask EPA to find that major sources of

NOX emissions in States in the eastern half of the United

States, from (and including) Louisiana in the southwest, Minnesota in

the northwest, and Georgia in the southeast, contribute significantly

to nonattainment in areas further to the east and north.

Under section 126(b), for each petition, EPA must make the

requested finding, or deny the petition, within 60 days of receipt of

the petition. Under section 126(c), with respect to any existing

sources for which EPA makes the requested finding, those sources must

cease operations within three months of the finding, except that those

sources may continue to operate if they comply with emissions

limitations and compliance schedules that EPA may provide to bring

about compliance with the applicable requirements.

Section 126(b) provides that EPA must allow a public hearing for

the submitted petitions. In addition, EPA's action under section 126 is

subject to the procedural requirements of CAA section 307(d). See

section 307(d)(1)(N). One of these requirements is notice-and-comment

rulemaking, under section 307(d)(3).

In addition, section 307(d)(10) provides for a time extension,

under certain circumstances, for rulemaking subject to section 307(d).

Specifically, 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 this

subsection.

Section 307(d)(10) applies, by its terms, to section 126 rulemakings

because the 60-day time limit under section 126(b) necessarily limits

the period after proposal to less than six months.

In accordance with section 307(d)(10), EPA is today determining

that the 60-day period afforded by section 126(b) is not adequate to

allow the public and the agency adequate opportunity to carry out the

purposes of the section 307(d) procedures for developing an adequate

proposal on whether the sources identified in the section 126 petitions

contribute significantly to nonattainment problems downwind, and,

further, to allow public input into the promulgation of any controls to

mitigate or eliminate those contributions. The determination of whether

upwind emissions contribute significantly to downwind nonattainment

areas is highly complex. The NOX SIP call, which proposes a

somewhat comparable determination, relied on extensive computer

modeling of air quality emissions and the ambient impacts therefrom in

the large geographic region of the eastern half of the United States.

This modeling was developed over a two-year period. It reflected the

input of EPA, the 37 states east of the Rockies as well as numerous

industry and citizen groups, all of whom participated in the OTAG.

Moreover, EPA is allowing a 120-day comment period on the

NOX SIP call proposal, and expects to take final action on

the NOX SIP call in September, 1998, some 11 months after

the date of proposal.

In acting on the section 126 petitions, EPA must make

determinations that, generally, are at least as complex as those

required for the NOX SIP call, and EPA must do so for

sources throughout the eastern half of the United States. Moreover, if

EPA determines that the petitions should be granted, EPA must

promulgate appropriate controls for the affected sources.

EPA is in the process of determining what would be an appropriate

schedule for action on the section 126 petitions, in light of the

complexity of the required determinations and the usefulness of

coordinating generally with the procedural path for the NOX

SIP call. It is imperative that this schedule (i) afford EPA adequate

time to prepare a notice that clearly elucidates the issues so as to

facilitate public comment, as well as (ii) afford the public adequate

time to comment. EPA is currently in the process of discussing an

appropriate schedule with the section 126 petitioners and other

interested parties.

Accordingly, extending the date for action on the section 126

petitions for another one month is necessary to determine the

appropriate overall schedule for action, as well as to continue to

develop the technical analysis needed to develop a proposal.

EPA is not, at this time, using the full six months provided under

section 307(d)(10) for the extension. EPA reserves the right to apply

the remaining five months, or a portion thereof, as an additional

extension, if necessary, immediately following the conclusion of the

one-month period, or to apply the remaining time to the period

following EPA's proposed rulemaking.

II. Final Action

A. Rule

Today, EPA is determining, under CAA section 307(d)(10), that a

one-month period is necessary to assure the development of an

appropriate schedule for rulemaking on the section 126 petitions, which

schedule would allow EPA adequate time to prepare a notice for proposal

that will best facilitate public comment, as well as allow the public

sufficient time to comment. Accordingly, EPA is granting a one-month

extension to the time for rulemaking on the section 126 petitions.

Under this extension, the dates for action on the section 126 petitions

are:

Connecticut--November 15, 1997

Maine--November 15, 1997

Massachusetts--November 14, 1997

New Hampshire--November 15, 1997

New York--November 15, 1997

Pennsylvania--November 15, 1997

Rhode Island--November 14, 1997

Vermont--November 15, 1997

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). EPA

believes that because of the limited time provided to make a

determination that the deadline for action on the section 126 petitions

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 is subject to notice-and-comment rulemaking,

EPA invokes the good cause exception pursuant to the APA, 5 U.S.C.

553(b)(3)(B). Providing notice and

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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 critical substantive

review of the section 126 petitions.

C. Effective Date Under the APA

Today's action will be effective on October 14, 1997. 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. Today's

action--a deadline extension--must take effect immediately because its

purpose is to move back by one month the October 14, 1997 deadlines for

several of the section 126 petitions, and the deadlines for the other

section 126 petitions that follow shortly thereafter. Moreover, EPA

intends to use immediately the one-month extension period to continue

to develop an appropriate schedule for ultimate action on the section

126 petitions, and to continue to develop the technical analysis needed

to develop the notice of proposed rulemaking. These reasons support an

effective date prior to 30 days after the date of publication.

D. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

E. Unfunded Mandates

Under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et

seq., EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector or to

State, local, or tribal governments in the aggregate. In addition,

before EPA establishes any regulatory requirements that may

significantly or uniquely affect small governments, EPA must have

developed a small government agency plan. EPA has determined that these

requirements do not apply to today's action because this rulemaking (i)

is not a Federal mandate--rather, it simply extends the date for EPA

action on a rulemaking; and (ii) contains no regulatory requirements

that might significantly or uniquely affect small governments.

F. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.,

EPA must propose a regulatory flexibility analysis assessing the impact

on small entities of any rule subject to the notice-and-comment

rulemaking requirements. Because this action is exempt from such

requirements, as described above, it is not subject to RFA.

G. Submission to Congress and the General Accounting Office

Under 5 U.S.C. of the APA, 5 U.S.C. 801(a)(1)(A), as added by the

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),

EPA submitted, by the date of publication of this rule, a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office. This rule is not a ``major rule'' as defined

by 5 U.S.C. 804(2), as amended.

H. Paperwork Reduction Act

This rule does not contain any information collection requirements

which require OMB approval under the Paperwork Reduction Act (44 U.S.C.

3501 et seq.)

I. Judicial Review

Under CAA section 307(b)(1), a petition to review today's action

may be filed in the Court of Appeals for the District of Columbia

within 60 days of October 22, 1997.

Dated: October 14, 1997.

Carol M. Browner,

Administrator.

[FR Doc. 97-27977 Filed 10-21-97; 8:45 am]

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