2011-12308. Industrial, Commercial, and Institutional Boilers and Process Heaters and Commercial and Industrial Solid Waste Incineration Units

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rules; Delay of effective dates.

SUMMARY:

The EPA is delaying the effective dates for the final rules titled “National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters” and “Standards of Performance for New Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units” under the authority of the Administrative Procedure Act (APA) until the proceedings for judicial review of these rules are completed or the EPA completes its reconsideration of the rules, whichever is earlier.

DATES:

The effective dates of the final rules published in the Federal Register on March 21, 2011 (76 FR 15608 and 76 FR 15704), are delayed until such time as judicial review is no longer pending or until the EPA completes its reconsideration of the rules, whichever is earlier. The Director of the Federal Register has reviewed certain publications listed in these final rules for incorporation by reference approval. That approval is delayed until such time as the proceedings for judicial review of these rules are completed or the EPA completes its reconsideration of the rules, whichever is earlier. The EPA will publish in the Federal Register announcing the effective dates and the incorporation by reference approvals once delay is no longer necessary.

ADDRESSES:

Docket: The final rules, the petitions for reconsideration, and all other documents in the record for the rulemakings are in Docket ID. No. EPA-HQ-OAR-2002-0058 and EPA-HQ-OAR-2003-0119. All documents in the dockets 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, 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's Docket Center, Public Reading Room, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20004. This Docket Facility 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:

“National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters”: Mr. Brian Shrager, Energy Strategies Group, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (D243-01), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, telephone [phone], fax number [phone], e-mail address: [e-mail].“Standards of Performance for New Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units”: Ms. Toni Jones, Fuels and Incineration Group, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (E143-03), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, telephone [phone], fax number [phone], e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On March 21, 2011, the EPA issued a final rule to regulate emissions of hazardous air pollutants (HAP) from industrial, commercial, and institutional boilers and process heaters located at major sources of HAP emissions (the “Major Source Boiler MACT”). On the same date, the EPA issued a final rule to regulate emissions of certain air pollutants from commercial and industrial solid waste incineration units (the “CISWI Rule”). For further information on the Major Source Boiler MACT, see 76 FR 15608 (March 21, 2011). For further information on the CISWI Rule, see 76 FR 15704 (March 21, 2011). In the March 21 notices, the EPA established an effective date of May 20, 2011, for each rule.

On the same day the rules were issued, the EPA also published a notice explaining that the Agency was in the process of developing a notice proposing reconsideration of certain aspects of both rules. 76 FR 15267. In that notice, the EPA explained that the proposed reconsideration would address issues on which the EPA believes further opportunity for public comment is appropriate, as well as any provisions of the rules that the EPA believes warrant modification after further consideration of the data and comments already received. The EPA has received petitions from a number of interested parties seeking reconsideration of both rules. The petitions identify specific issues that the EPA is being asked to reconsider. The EPA intends to initiate a reconsideration process for both rules, as explained above. The EPA will issue a notice of proposed reconsideration of each rule that identifies the specific issue or issues raised in the petitions on which the Agency is granting reconsideration. The EPA understands that members of the public may wish to submit additional data and information to inform the EPA's proposed reconsideration, and the Agency will consider any additional information submitted in time to do so. Given the anticipated schedule for the reconsideration process, we request that any additional data and information be provided to the EPA by July 15, 2011, to allow the Agency to fully consider it.

The EPA has also received petitions for judicial review of the Major Source Boiler MACT from the United States Sugar Corporation as well as from a coalition of industry groups. The EPA has received a petition for judicial review of the CISWI Rule from a coalition of industry groups as well. Under section 705 of the APA, “an agency * * * may postpone the effective date of [an] action taken by it pending judicial review.” The provision requires that the Agency find that justice requires postponing the action, that the action has not gone into effect, and that litigation is pending. As described above, neither the Major Source Boiler MACT nor the CISWI Rule has gone into effect and petitions for judicial review of both rules have been filed.

We find that justice requires postponing the effectiveness of these rules. As explained in the March 21, 2011, notice, EPA has identified several issues in the final rules which it intends to reconsider because we believe the public did not have a sufficient opportunity to comment on certain revisions EPA made to the proposed rules. These issues include revisions to the proposed subcategories and revisions to some of the proposed emissions limits. In addition, EPA received data before finalizing both rules but was unable to incorporate that data into the final rules given the court deadline for issuing the rules, which the Agency was unable to extend. EPA also notes thousands of facilities across multiple, diverse industries will need to begin to make major compliance investments soon, in light of the pressing compliance deadlines. These investments may not be reversible if the standards are in fact revised following reconsideration and full evaluation of all relevant data.

Finally, the EPA notes that it is delaying the effective date of the Major Source Boiler MACT and the CISWI Rule pursuant to the APA, rather than section 307(d)(7)(B) of the Clean Air Act. As explained above, the APA authorizes the EPA to find that justice requires postponing the effective date of a rule when litigation is pending. In contrast, the Clean Air Act authorizes the EPA to stay the effectiveness of a rule for three months if the Administrator has convened a proceeding to reconsider the rule. The EPA further notes that section 307(d) of the Act expressly states that it is intended to replace only sections 553-557 of the APA (except as otherwise provided in section 307(d)), and does not state that it replaces section 705 of the APA. Therefore, the EPA has the discretion to decide whether it is appropriate to delay the effective date of a rule under either provision, based on the specific facts and circumstances before the Agency. Since petitions for judicial review of both the Major Source Boiler MACT and the CISWI Rule have been filed, and, as explained above, justice requires a delay of the effective dates, it is reasonable for the EPA to exercise its authority to delay the effective dates of the Major Source Boiler MACT and the CISWI Rule under the APA for a period that exceeds three months.

II. Issuance of a Stay and Delay of Effective Date

Pursuant to section 705 of the APA, the EPA hereby postpones the effectiveness of the Major Source Boiler MACT and the CISWI Rule until the proceedings for judicial review of these rules are complete or the EPA completes its reconsideration of the rules, whichever is earlier. By this action, we are delaying the effective date of both rules, published in the Federal Register on March 21, 2011 (76 FR 15608 and 76 FR 15704). The delay of the effective date of the CISWI Rule applies only to those provisions issued on March 21, 2011, and not to any provisions of 40 CFR part 60, subparts CCCC and DDDD, in place prior to that date. This delay of effectiveness will remain in place until the proceedings for judicial review are completed or the EPA completes its reconsideration of the rules, whichever is earlier, and the Agency publishes a notice in the Federal Register announcing that the rules are in effect.

List of Subjects

40 CFR Part 60

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements

40 CFR Part 63

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Hazardous substances
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements

For the reasons set forth above, under the authority at 7 U.S.C. 705, the effective dates of FRL 9272-8, 76 FR 15608 (March 21, 2011), and FRL 9273-4, 76 FR 15704 (March 21, 2011) are delayed until further notice.

Dated: May 16, 2011.

Lisa P. Jackson,

Administrator.