[Federal Register Volume 62, Number 224 (Thursday, November 20, 1997)]
[Rules and Regulations]
[Pages 61914-61916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30520]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5925-4]


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 a second one-month period 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 notice, 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 November 14, 1997.

FOR FURTHER INFORMATION CONTACT: Howard J. Hoffman, Office of General 
Counsel, MC-2344, 401 M St. SW, Washington, D.C. 20460, (202) 260-5892.

SUPPLEMENTARY INFORMATION:

I. Background

    Today's action follows closely EPA's final action taken by notice 
dated October 22, 1997 (62 FR 54769). Familiarity with that document is 
assumed, and background information in that document will not be 
repeated here.
    In the October 22, 1997 document, EPA extended by one month, 
pursuant to its authority under CAA section 307(d)(10), the time frame 
for taking final action on petitions submitted by eight states under 
CAA section 126. These eight states are Connecticut, Maine, 
Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and 
Vermont. By these petitions, the eight states have asked EPA to make 
findings that major stationary sources in upwind states emit in 
violation of the prohibition of CAA section 110(a)(2)(D), by 
contributing significantly to nonattainment problems in the petitioning 
States.
    EPA received the petitions on August 14-15, 1997. 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. As indicated 
in the October 22, 1997 document, EPA has the authority to extend the 
deadline for up to six months, under CAA section 307(d)(10). By the 
October 22, 1997 document, EPA extended the deadline for one month, to 
November 14, 1997, and further indicated that EPA was reserving its 
option to extend the period by all or part of the remaining five months 
of the six-month extension period.
    EPA is today extending the deadline for an additional one month, to 
December 14, 1997. EPA's reasons are identical to those articulated in 
the October 22, 1997 document. In the October 22, 1997 document, EPA 
explained the basis for the first one-month extension as follows:

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    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 NO<INF>X</INF> 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 
NO<INF>X</INF> SIP call proposal, and expects to take final action on 
the NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> 
SIP call. It is imperative that this schedule (i) afford EPA adequate 
time to prepare a document that clearly elucidates the issues so as to 
facilitate public comment, as well as (ii) afford the public adequate 
time to comment.
    EPA is continuing to discuss an appropriate schedule with the 
section 126 petitioners and other interested parties. Accordingly, EPA 
concludes today, as it did in the October 22, 1997 document, that 
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's action of October 22, 1997, erroneously indicated that the 
extended deadline for six of the States--Connecticut, Maine, New 
Hampshire, New York, Pennsylvania, and Vermont--would be November 15, 
1997. Because the initial 60-day period for EPA action on the 126 
petitions submitted by these states expired on October 14, 1997, the 
first one-month extension would extend the deadline to November 14, 
1997. EPA is today correcting that error, although today's action, 
which further extends the deadline, makes this error irrelevant.
    As EPA indicated in the October 22, 1997 document, EPA, even with 
today's action, continues not to use the entire six months provided 
under section 307(d)(10) for the extension. EPA continues to reserve 
the right to apply the remaining four 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 
second 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 date for action on each of the section 126 
petitions is December 14, 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 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 November 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 November 14, 1997 deadlines 
for the section 126 petitions. 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

[[Page 61916]]

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

G. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A), 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 November 20, 1997.

    Dated: November 14, 1997.
Carol M. Browner,
Administrator.
[FR Doc. 97-30520 Filed 11-19-97; 8:45 am]
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