2012-10718. Revisions to Final Response To Petition From New Jersey Regarding SO2

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This action amends the preamble and regulatory text to the “Final Response to Petition From New Jersey Regarding SO₂ Emissions From the Portland Generating Station” published November 7, 2011, to revise minor misstatements. These revisions clarify the EPA's finding that the Portland Generating Station (Portland) significantly contributes to nonattainment or interferes with maintenance of the 1-hour sulfur dioxide (SO₂) national ambient air quality standard (NAAQS) in the State of New Jersey and remove the references to specific New Jersey counties identified in the EPA's November 7, 2011, final rule. These revisions have no impact on any other provisions of the rule.

DATES:

This final rule is effective on June 4, 2012.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2011-0081. 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 (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA West Building, 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 [phone], and the telephone number for the Air Docket is [phone].

FOR FURTHER INFORMATION CONTACT:

Mr. Todd Hawes [phone], [e-mail], or Ms. Gobeail McKinley [phone], [e-mail], Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-04, Research Triangle Park, NC 27711.

SUPPLEMENTARY INFORMATION:

I. Why is the EPA issuing this final rule?

II. Specific Revisions

III. Public Comment and Agency Response

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act (RFA)

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 and Safety Risks

H. Executive Order 13211: Actions 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. Why is the EPA issuing this final rule?

This action finalizes minor amendments to the “Final Response to Petition From New Jersey Regarding SO₂ Emissions From the Portland Generating Station” published on November 7, 2011. See 76 FR 69052. We initially proposed this rule revision in parallel with a direct final rule because we viewed this as a noncontroversial action and anticipated no adverse public comments. However, the EPA did receive one adverse comment, and therefore we have withdrawn the direct final rule. In this document, we have addressed the public comment received on the proposal and are finalizing the “Revisions to Final Response to Petition From New Jersey Regarding SO₂ Emissions From the Portland Generating Station” published on December 22, 2011. See 76 FR 79574.

II. Specific Revisions

The preamble and rule text to the “Final Response to Petition From New Jersey Regarding SO₂ Emissions From the Portland Generating Station” (76 FR 69052) contain minor misstatements that the EPA is revising in this action. In the preamble section IV.A, Summary of the Modeling for the Proposed Rule, the EPA inadvertently referred to four specific counties in New Jersey when discussing violations of the 1-hour SO₂ NAAQS. The statement reads, “The EPA also modeled the emissions from Portland using the AERMOD dispersion model and determined that the modeled concentrations from Portland, when combined with the relatively low background concentrations, cause violations of the 1-hour SO₂ NAAQS in Morris, Sussex, Warren and Hunterdon Counties in New Jersey.” (See id. at 69057.) This conclusion is not correctly stated as the EPA's modeling did not separately examine air quality in each of the four counties identified. A more accurate description of the EPA's conclusion was presented in the April 7, 2011, proposal (76 FR 19662 at 19680) which did not refer to those counties in our explanations of the modeling results. Furthermore, between proposal and promulgation, the EPA did not separately examine each of the four counties identified, so in the final rule there was no reason to change this proposed description to specifically list counties. Therefore, we are now revising the statement in the November 7, 2011, final rule preamble to be consistent with the description in the April 7, 2011, proposal by removing the references to Morris, Sussex, Warren, and Hunterdon Counties. The statement will now read, “The EPA also modeled the emissions from Portland using the AERMOD dispersion model and determined that the modeled concentrations from Portland, when combined with the relatively low background concentrations, cause violations of the 1-hour SO₂ NAAQS in New Jersey.”

Similarly, in the rule text, Part 52—[Amended], Subpart NN—Pennsylvania, section 52.2039 in 40 CFR part 52, of the final rule, the EPA inadvertently referred to those same four counties in describing the finding of significant contribution to nonattainment and interference with maintenance of the 1-hour SO₂ NAAQS. The provision reads, “The EPA has made a finding pursuant to section 126 of the Clean Air Act (the Act) that emissions of sulfur dioxide (SO₂) from the Portland Generating Station in Northampton County, Upper Mount Bethel Township, Pennsylvania (Portland) significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO₂ national ambient air quality standard (NAAQS) in Morris, Sussex, Warren, and Hunterdon Counties in New Jersey.” With this action, the rule text now reads, “The EPA has made a finding pursuant to section 126 of the Clean Air Act (the Act) that emissions of sulfur dioxide (SO₂) from the Portland Generating Station in Northampton County, Upper Mount Bethel Township, Pennsylvania (Portland) significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO₂ national ambient air quality standard (NAAQS) in New Jersey.”

Although the New Jersey Department of Environmental Protection (NJDEP) modeling analysis submitted with the September 2010 petition identified NAAQS violations at receptors in certain counties, the purpose of the EPA modeling was not to identify or corroborate the entire geographic footprint of the violations in New Jersey. The EPA modeling analysis was conducted for the purpose of corroborating the existence of NAAQS violations in New Jersey caused by Portland and for determining the remedy needed to eliminate all NAAQS violations caused by Portland. The EPA modeling thus focused upon identifying only the area where the maximum concentration was expected to occur. We used the same receptor grid for the final rule as for the proposed rule, which was focused on the area of maximum impacts occurring in Warren County, New Jersey. The remedy was determined by assessing the emission reduction needed to eliminate the maximum modeled violation in New Jersey, which occurs in close proximity to Portland in Warren County. There was no need to make an assessment of impacts at all locations within New Jersey since eliminating the NAAQS violations at the highest impacted receptor provided the basis for the remedy which, by its nature, would eliminate all modeled violations caused by Portland in the entire state. Therefore, the EPA finding pursuant to section 126 of the Clean Air Act (the Act) applies to New Jersey generally. The revision is consistent with NJDEP's request for a finding that emissions from Portland significantly contribute to nonattainment or interfere with maintenance of the 1-hour SO₂ NAAQS in New Jersey. The revision is also consistent with the language in sections 110 and 126 of the Act which is phrased such that the petitioner can request a finding that a source in one state is significantly contributing to nonattainment or interfering with maintenance of the NAAQS in another state. The addition of the counties was neither necessary nor intentional and did not arise from a request from the petitioner or any other commenter.

The revisions will not affect the emission limits, increments of progress, compliance schedules, or reporting provisions specified in the November 7, 2011, final rule and do not change the conclusions that the EPA made in the final rule. No adjustments to the existing modeling or other technical analyses and no new analyses were necessary to make the revisions.

III. Public Comment and Agency Response

On February 21, 2012, the Pennsylvania Department of Environmental Protection (PADEP) provided comments to the EPA on the direct final rule and the concurrent proposal for this rule. The direct final rule was subsequently withdrawn. (See 77 FR 15608.)

PADEP commented that our revision to the November 7, 2011, final rule is a “revision” to a final rule which, in light of other similar actions, constitutes a pattern for EPA. PADEP specifically refers to recent revisions to the final Cross-State Air Pollution Rule (CSAPR) as an example of this alleged pattern. The commenter argues that this alleged pattern is the result of a “rush to judgment” causing mistakes to be made. The commenter claims that the EPA admits that the inadvertent reference to the four counties in New Jersey was a “major misstatement” and that the EPA committed a significant error with respect to the air modeling.

The EPA does not agree that the revisions to the final rule resulted from any significant errors with the modeling nor did we characterize the issue as a major misstatement. As explained in the December 22, 2011, notice of the proposed revision (76 FR 79541), we inadvertently made reference to the four counties in New Jersey in the November 7, 2011, final rule. (See 76 FR at 69077; 40 CFR 52.2039.) This was inconsistent with the correct characterization of the finding described in the April 7, 2011, proposal (76 FR at 19680) in which the finding was proposed for the State of New Jersey generally and not in specific counties within the state. The changes do not affect the emission limits, increments of progress, compliance schedules, or the reporting provisions of the final rule.

Moreover, the commenter's claim that these misstatements demonstrate a significant error in the air modeling is unsupported. First, as explained above, the modeling was targeted at corroborating the existence of NAAQS violations in New Jersey caused by Portland and determining the remedy needed to eliminate all NAAQS violations caused by Portland. The EPA modeling thus focused on identifying the area where the maximum concentration was expected to occur, which was identified as Warren County, New Jersey, and assessing the emission reduction needed to eliminate the maximum modeled violation in New Jersey. The commenter has failed to identify any error in this modeling approach. Therefore, no new technical analyses or any changes to the modeling are necessary to make these revisions. Second, comments on the modeling are beyond the scope of comment solicited by the proposal since no modifications to the modeling approach were proposed in this rule. If the commenter wished to raise any concerns with respect to the scope of EPA's modeling approach, they should have been raised when the modeling approach was initially proposed. Finally, comments regarding CSAPR are clearly beyond the scope of this rulemaking as CSAPR is a separate and unrelated rulemaking.

The comment provides no basis for us to change the characterization of our finding, namely that emissions from Portland significantly contribute to nonattainment or interfere with maintenance of the 1-hour SO₂ NAAQS in New Jersey. Therefore, we are not making any changes to the December 22, 2011, proposal in this final rule.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action revises minor wording errors in the November 7, 2011, final rule. This action corrects a response to a petition that is narrow in scope and affects a single facility. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

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., because under section 126 of the CAA, it will not create any new information collection burdens but revises minor wording errors in the November 7, 2011, rule. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA)

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The revisions in this action do not impose any new requirements on small entities. This action revises minor wording errors in the November 7, 2011, rule. These revisions clarify the EPA's finding that Portland significantly contributes to nonattainment or interferes with maintenance of the 1-hour SO₂ NAAQS in the State of New Jersey, and removes the specific references to the New Jersey counties identified in the November 7, 2011, rule.

D. Unfunded Mandates Reform Act

This action does not contain a federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local or tribal governments or the private sector. This action is not expected to result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any 1 year. This action makes minor wording revisions to the November 7, 2011, final rule. These revisions clarify the EPA's finding that Portland significantly contributes to nonattainment or interferes with maintenance of the 1-hour SO₂ NAAQS in the State of New Jersey, and removes the specific references to the New Jersey counties identified in the November 7, 2011, rule. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.

This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

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, as specified in Executive Order 13132. The November 2011 final rule primarily affects private industry, and does not impose significant economic costs on state or local governments. This action revises minor wording errors in the November 7, 2011, rule. These revisions clarify the EPA's finding that Portland significantly contributes to nonattainment or interferes with maintenance of the 1-hour SO₂ NAAQS in the State of New Jersey, and removes the specific references to the New Jersey counties identified in the November 7, 2011, rule. Thus, Executive Order 13132 does not apply to this action.

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 a substantial direct effect on tribal governments, on the relationship between the federal government and Indian tribes, or the distribution of power and responsibilities between the federal government and Indian tribes. This action revises minor wording errors in the November 7, 2011, rule.

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

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 the 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 the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.

This rulemaking does not involve technical standards. Therefore, the EPA is not considering 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, February 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 their programs, policies, and activities on minority populations 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 does not affect the level of protection provided to human health or the environment. This action revises minor wording errors in the November 7, 2011, rule. These revisions clarify the EPA's finding that Portland significantly contributes to nonattainment or interferes with maintenance of the 1-hour SO₂ NAAQS in the State of New Jersey, and removes the specific references to the New Jersey counties identified in the November 7, 2011, rule.

K. Congressional Review Act

The Congressional Review Act, 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 804 exempts from section 801 the following types of rules (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). The EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability. Nonetheless, this action will be effective June 4, 2012.

L. Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the Third Circuit Court within 60 days from the date the final action is published in the Federal Register, Filing a petition for review by the Administrator of this final action 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 must be filed, and shall not postpone the effectiveness of such action.

List of Subjects in 40 CFR Part 52

• Approval and promulgation of implementation plans
• Environmental protection
• Administrative practice and procedures
• Air pollution control
• Incorporation by reference
• Intergovernmental relations, and Reporting and recordkeeping requirements
• Sulfur dioxide

Dated: April 25, 2012.

Lisa P. Jackson,

Administrator.

For the reasons set forth in the preamble part 52 of chapter I of title 40 of the Code of Federal regulations are amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart NN—Pennsylvania [Amended]

2. Section 52.2039 is amended by revising the introductory text to read as follows:

§ 52.2039

Interstate transport.

The EPA has made a finding pursuant to section 126 of the Clean Air Act (the Act) that emissions of sulfur dioxide (SO₂) from the Portland Generating Station in Northampton County, Upper Mount Bethel Township, Pennsylvania (Portland) significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO₂ national ambient air quality standard (NAAQS) in New Jersey. The owners and operators of Portland shall comply with the requirements in paragraphs (a) through (d) of this section.

* * * * *