Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 69889 

for Section 101.311 under Chapter 

101—General Air Quality Rules, 

Subchapter H—Emissions Banking and 

Trading, followed by new entries for 

sections 101.330, 101.331, 101.332, 

101.333, 101.334, 101.335, 101.336, 

101.338 and 101.339. 

The additions read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

Chapter 101—General Air Quality Rules 

*******

Subchapter H—Emissions Banking and Trading 

*******

Section 101.311 ........................... Program Audits and Reports ....... 11/10/04 9/6/06, 71 FR 52698.

Division 2—Emissions Banking and Trading of Allowances 

Section 101.330 ........................... Definitions .................................... 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.331 ........................... Applicability .................................. 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.332 ........................... General Provisions ...................... 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.333 ........................... Allocation of Allowances .............. 08/09/2000 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.334 ........................... Allowance Deductions ................. 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.335 ........................... Allowance Banking and Trading .. 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.336 ........................... Emission Monitoring, Compliance 

Demonstration, and Reporting.

12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.338 ........................... Emission Reductions Achieved 

Outside the United States.

10/04/2006 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.339 ........................... Program Audits and Reports ....... 10/04/2006 November 16, 2010 [Insert 

FR page number where 

document begins].

* * * * * * * 

[FR Doc. 2010–28659 Filed 11–15–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0473; FRL–9227–6] 

Extension of Deadline for Action on 

the Second Section 126 Petition From 

New Jersey 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In this action, EPA is 

determining that 60 days is insufficient 

time to complete the technical and other 

analyses and the public notice and 

comment process required for our 

review of a petition submitted by the 

State of New Jersey Department of 

Environmental Protection (New Jersey) 

pursuant to section 126 of the Clean Air 

Act (CAA). The petition requests that 

EPA make a finding that the coal-fired 

Portland Generating Station in Upper 

Mount Bethel Township, Northampton 

County, Pennsylvania, is emitting air 

pollutants that significantly contribute 

to nonattainment or interfere with 

maintenance of the 1-hour sulfur 

dioxide (SO2) national ambient air 

quality standards (NAAQS). Under the 

CAA, EPA is authorized to grant a time 

extension for responding to the petition 

if EPA determines that the extension is 

necessary, among other things, to meet 

the purposes of the CAA’s rulemaking 

requirements. By this action, EPA is 

making that determination. EPA is 

therefore extending the deadline for 

acting on the petition to no later than 

May 16, 2011. 

DATES: The effective date of this action 

is November 16, 2010. 

ADDRESSES: EPA has established a 

docket for this rulemaking under Docket 

ID number EPA–HQ–OAR–2010–0473. 


jlentini on DSKJ8SOYB1PROD with RULES
69890 Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 

1The text of section 126 codified in the United 

States Code cross references section 110(a)(2)(D)(ii) 

instead of section 110(a)(2)(D)(i). The courts have 

confirmed that this is a scrivener’s error and the 

correct cross reference is to section 110(a)(2)(D)(i), 

See Appalachian Power Co. v. EPA, 249 F.3d 1032, 

1040–44 (DC Cir. 2001). 

All documents in the docket are listed 

in the http://www.regulations.gov index. 

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. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy at 

the EPA Docket Center EPA/DC, EPA 

West, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the EPA Docket Center is 

(202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

General questions concerning this final 

rule should be addressed to Ms. Gobeail 

McKinley, Office of Air Quality 

Planning and Standards, Geographic 

Strategies Group, Mail Code C539–04, 

Research Triangle Park, NC 27711; 

telephone (919) 541–5246; e-mail 

address: mckinley.gobeail@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

A. Legal Requirements for Interstate Air 

Pollution 

B. New Jersey’s September 2010 Submittal 

II. Final Action 

A. Rule 

B. Notice-and-Comment Under the 

Administrative Procedures Act (APA) 

C. Effective Date Under the APA 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Judicial Review 

I. Background 

This is a procedural action to extend 

the deadline for EPA to respond to a 

petition from New Jersey filed under 

CAA section 126. EPA received the 

petition and a link to the supporting 

documentation via e-mail on September 

17, 2010. The petition requests that EPA 

make a finding under section 126 of the 

CAA that the coal-fired Portland 

Generating Station (Portland Plant) in 

Upper Mount Bethel Township, 

Northampton County, Pennsylvania, is 

emitting air pollutants in violation of 

the provisions of section 110(a)(2)(D)(i) 

of the CAA with respect to the 1-hour 

SO2 NAAQS. New Jersey stated that the 

petition provided additional 

documentation to supplement a section 

126 petition submitted by New Jersey on 

May 12, 2010. 

A. Legal Requirements for Interstate Air 

Pollution 

The Clean Air Act provides, in 

Section 110(a)(2)(D)(i), that each State’s 

State Implementation Plan (SIP) shall 

contain adequate provisions prohibiting 

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. 

Section 126(b) of the CAA in turn 

authorizes States or political 

subdivisions to petition 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 section 

110(a)(2)(D)(i) 1 by contributing 

significantly to nonattainment or 

maintenance problems in downwind 

States. If EPA makes such a finding, the 

source must cease operation or comply 

with emission limits established by 

EPA. 

Under section 126(b), EPA must make 

the finding requested in the petition, or 

must deny the petition within 60 days 

of its receipt. Under section 126(c), any 

existing sources for which EPA makes 

the requested finding must cease 

operations within three months of the 

finding, except that the source may 

continue to operate if it complies with 

emission limitations and compliance 

schedules that 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. 

Section 126(b) further provides that 

EPA must hold a public hearing on the 

petition. EPA’s action under section 126 

is also 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 the subsection. 

Section 307(d)(10) applies 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. 

B. New Jersey’s September 2010 

Submittal 

EPA has determined that the 

September 17, 2010, petition submitted 

by New Jersey is a new petition and not 

a supplement to the May 12, 2010, 

petition. The first petition submitted by 

New Jersey on May 12, 2010, alleged 

that emissions from the Portland Plant 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2006 24-hour fine 

particulate (PM2.5) NAAQS and the 3- 

hour and 24-hour SO2 NAAQS. 

Subsequently, EPA promulgated the 

revised primary SO2 NAAQS on June 2, 

2010 (75 FR 35520). Specifically, EPA 

established the new 1-hour SO2 NAAQS 

at a level of 75 parts per billion (ppb), 

based on the 3-year average of the 

annual 99th percentile of 1-hour daily 

maximum concentrations. The second 

petition submitted by New Jersey on 

September 17, 2010, alleges that 

emissions from the Portland Plant 

significantly contribute to 

nonattainment or interfere with 

maintenance of the newly promulgated 

1-hour SO2 NAAQS. Because the 1-hour 

SO2 NAAQS did not exist at the time 

New Jersey filed its first petition, the 

1-hour SO2 NAAQS could not constitute 

a basis for that petition. For this reason, 

EPA believes it is more appropriate to 

treat the second petition as a new 

section 126 petition instead of as a 

supplement to the first petition. EPA is 

reviewing the first petition and the 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 69891 

current deadline for a response to that 

petition is January 12, 2011 (75 FR 

39633). 

II. Final Action 

A. Rule 

In accordance with section 307(d)(10), 

EPA is determining that the 60-day 

period afforded by section 126(b) for 

responding to the second petition from 

New Jersey is not adequate to allow the 

public and the Agency the opportunity 

to carry out the purposes of section 

307(b). Specifically, the 60-day period is 

insufficient for EPA to complete the 

necessary technical review, develop an 

adequate proposal, and allow time for 

notice and comment on whether the 

Portland Plant identified in the section 

126 petition contributes significantly to 

nonattainment or maintenance problems 

in New Jersey. EPA is currently 

reviewing the second petition and 

supporting technical information 

provided by New Jersey. The supporting 

information being reviewed includes 

modeling that New Jersey asserts 

supports a finding that the Portland 

Plant significantly contributes to 

exceedances of the 1-hour SO2 NAAQS 

in New Jersey. In addition, New Jersey 

has begun providing monitoring data 

from a recently established monitor in 

Warren County. Based on preliminary 

data from the site, there are indications 

that ground level concentrations are 

approaching or exceeding the 1-hour 

SO2 NAAQS levels. EPA notes that 

these data are preliminary in nature and 

have not been validated. If, after 

reviewing the available technical 

information, EPA concludes that the 

Portland Plant significantly contributes 

to exceedances of the 1-hour SO2

NAAQS in New Jersey, it would 

propose to grant the petition and make 

a positive finding pursuant to section 

126. EPA currently intends to propose a 

response to the second petition in 

February 2011. 

EPA considers this extension of the 

deadline for action on the second 

petition essential to afford adequate 

time to fully review and evaluate the 

basis for the petition, develop a 

proposed remedy, if necessary, prepare 

a proposal that clearly explains the 

issues so as to facilitate public 

comment, and provide adequate time for 

the public to comment prior to issuing 

the final rule. As a result of this 

extension, the deadline for EPA to act 

on the petition is no later than May 16, 

2011. 

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 

that the deadline for action on the 

section 126 petition should be extended, 

Congress may not have intended such a 

determination to be subject to noticeand-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 section 126 petition. 

C. Effective Date Under the APA 

This action is effective on November 

16, 2010. 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. It is important for 

this deadline extension action to be 

effective before the original 60-day 

period for action elapses. As discussed 

above, 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 EPA 

to complete the required notice-andcomment 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 Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review by the Office of 

Management and Budget under the EO. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320(b). This action 

simply extends the date for 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. 

Therefore, it does not impose an 

information collection burden. 

C. Regulatory Flexibility Act 

This final rule is not subject to the 

Regulatory Flexibility Act (RFA), which 

generally requires an agency to prepare 

a regulatory flexibility analysis for any 

rule that will have a significant 

economic impact on a substantial 

number of small entities. The RFA 

applies only to rules subject to noticeand-comment rulemaking requirements 

under the APA or any other statute. This 

rule is not subject to notice-andcomment requirements under the APA 

or any other statute because, although 

the rule is subject to the APA, the 

Agency has invoked the ‘‘good cause’’ 

exemption under 5 U.S.C. 553(b). 

Therefore, it is not subject to the noticeand-comment requirement. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (URMA), 2 U.S.C. 1531– 

1538 for State, local, or Tribal 

governments or the private sector. This 

action imposes no enforceable duty on 

any State, local, or Tribal governments 

or the private sector. 

This action simply extends the 

deadline for 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. Therefore, this action is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. This 

action is also not subject to the 

requirements of section 203 of URMA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action simply extends the date for EPA 

to take action on a petition and does not 

impose any new obligations or 

enforceable duties on any small 

governments. 

E. Executive Order 13132 (Federalism) 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 


jlentini on DSKJ8SOYB1PROD with RULES
69892 Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 

the Executive Order to include 

regulations that 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.’’ 

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, as specified in 

Executive Order 13132. This rule simply 

extends the date for 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. Thus, Executive 

Order 13132 does not apply to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It will not have substantial direct 

effects on Tribal governments, on the 

relationship between the Federal 

government and Indian Tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian Tribes, as 

specified in Executive Order 13175. 

This action does not significantly or 

uniquely affect the communities of 

Indian Tribal governments. As 

discussed above, this action imposes no 

new requirements that would impose 

compliance burdens. Accordingly, the 

requirements of Executive Order 13175 

do not apply to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

the Agency does not believe the 

environmental health risks or safety 

risks addressed by this action present a 

disproportionate risk to children. This 

action is not subject to executive Order 

13045 because it does not establish an 

environmental standard intended to 

mitigate health or safety risks. This rule 

simply extends the deadline for EPA to 

take action on a petition and does not 

impose any regulatory requirements. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211 (66 FR 28355 (May 22, 2001)), 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Further, 

we have concluded that this rule is not 

likely to have any adverse effects 

because this action simply extends the 

deadline for EPA to take action on a 

petition. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of its programs, 

policies, and activities on minorities 

and low-income populations in the 

United States. 

The EPA has determined that this 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it simply extends the deadline 

for EPA to take action on a petition and 

does not impose any regulatory 

requirements. 

K. Congressional Review Act 

The Congressional Review Act (CRA), 

5 U.S.C. 801 et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 808 of the 

CRA provides an exception to this 

requirement. For any rule for which an 

agency for good cause finds that notice 

and comment are impracticable, 

unnecessary, or contrary to the public 

interest, the rule may take effect on the 

date set by the Agency. The EPA will 

submit 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 United States prior to 

publication of the rule in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

L. Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 18, 2011. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Electric utilities, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, Sulfur 

dioxide. 

Dated: November 10, 2010. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2010–28960 Filed 11–15–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67 

[Docket ID FEMA–2010–0003] 

Final Flood Elevation Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 


jlentini on DSKJ8SOYB1PROD with RULES