[Federal Register Volume 69, Number 126 (Thursday, July 1, 2004)]
[Rules and Regulations]
[Pages 40274-40276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14989]
[[Page 40273]]
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Part VII
Environmental Protection Agency
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40 CFR Parts 51 and 52
Prevention of Significant Deterioration (PSD) and Non-attainment New
Source Review (NSR): Equipment Replacement Provision of the Routine
Maintenance, Repair and Replacement Exclusion; Stay; Final Rule
Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules
and Regulations
[[Page 40274]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[AD-FRL-7780-1; E-Docket ID No. OAR-2002-0068; Legacy Docket No. A-
2002-04]
RIN 2060-AM28
Prevention of Significant Deterioration (PSD) and Non-attainment
New Source Review (NSR): Equipment Replacement Provision of the Routine
Maintenance, Repair and Replacement Exclusion; Stay
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: A December 24, 2003 order of the U.S. Court of Appeals for the
District of Columbia Circuit stayed the effectiveness of the Equipment
Replacement Provision (ERP) of the Clean Air Act (CAA) New Source
Review (NSR) Routine Maintenance, Repair, and Replacement (RMRR)
exclusion. Today's action reflects this stay in the Code of Federal
Regulations. This document also sets out EPA's interpretation of the
effect of the stay on the Prevention of Significant Deterioration (PSD)
federal implementation plans in various state implementation plans. EPA
is issuing this final rule without notice and opportunity for public
comment because there is good cause to do so within the meaning of the
Administrative Procedure Act.
DATES: Effective July 1, 2004.
ADDRESSES: EPA has established a docket for this action under E-Docket
ID No. OAR-2002-0068 (legacy docket number no. A-2002-04). This number
will also appear at the top of your FR document along with the FRL
assigned to your particular FR document]. All documents in the docket
are listed in the EDOCKET index at http://www.epa.gov/edocket. Although
listed in the index, some information is not publicly available, i.e.,
CBI 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 form.
Publicly available docket materials are available either electronically
in EDOCKET or in hard copy at the EPA Docket Center (EPA/DC), EPA West,
Room B102, 1301 Constitution Ave., NW., Washington, DC. This Docket
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. 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 Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. David Svendsgaard, Information
Transfer and Program Integration Division (C339-03), U.S. EPA Office of
Air Quality Planning and Standards, Research Triangle Park, North
Carolina 27711, telephone number (919) 541-2380, facsimile number (919)
541-5509, electronic mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Today's Final Rule
A. What RMRR Exclusion Is in Effect After the Court's Order?
On October 27, 2003, EPA published amendments to the regulations
governing the PSD and NSR programs mandated under parts C and D of
title I of the Clean Air Act (CAA). These amendments added an
``Equipment Replacement Provision'' (ERP) to the Routine Maintenance,
Repair, and Replacement (RMRR) exclusion from these programs.\1\ This
provision was scheduled to take effect on December 26, 2003.
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\1\ For an explanation of the development of the new provisions
and the reasons for them, see 68 FR 61248 (October 27, 2003), and
the docket referenced above.
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Shortly after publication of the ERP amendments, various parties
filed petitions for review of EPA's action in the U.S. Court of Appeals
for the District of Columbia Circuit (State of New York v. EPA, No. 03-
1380 and consolidated cases). Upon the motions of various petitioners,
the Court ordered the new provisions stayed pending the completion of
its review. The Court issued its order on December 24, 2003. Therefore,
the new provisions never became effective.
Today's final rule adds a note to the RMRR provisions due to the
fact that the new provisions have been stayed. The effect of the
Court's stay order keeps the RMRR provisions in effect as they existed
prior to the ERP amendments. We have inserted a note into each affected
paragraph of the CFR explaining which portions of the rules are
affected by the Court's order. Upon the Court completing its review or
otherwise terminating the stay order, EPA will publish an additional
notice in the Federal Register reflecting the termination of the stay
and the status of the ERP.
B. What Amendments Are Necessary for the PSD FIPs Due to the Stay?
On December 24, 2003, EPA promulgated a FIP correction rule, which
amended the way in which EPA incorporates Sec. 52.21 into each FIP.
The new format incorporates revisions to Sec. 52.21 without further
revision to each FIP in each subpart (see 68 FR 74483). EPA's new
format for incorporating Sec. 52.21 into each FIP states that all of
Sec. 52.21 is incorporated except paragraph (a)(1).
Parties to the litigation on the ERP, as well as states not
involved in the litigation, asked whether the FIP correction rule would
make the ERP effective in states with PSD FIPs, notwithstanding the
stay. As previously communicated to all parties on January 8, 2004, it
is EPA's opinion that, because the FIPs incorporate sections of 52.21
that have been stayed by the court, these ``ERP'' sections are not
effective in the areas covered by the FIPs (e.g., it does not matter
that the FIPs now incorporate Sec. 52.21(cc) because that section is
stayed). This result occurs automatically due to the Court's staying of
the underlying rule changes at 40 CFR 52.21, and that further action by
the Court or EPA is not necessary.
C. What Is the Basis for Finding Good Cause To Make These Amendments
Immediately Effective?
The EPA has determined that notice and comment on this amendment to
the NSR regulations is not required. Under the Administrative Procedure
Act (5 U.S.C. 553(b)(3)(B)), a rule is exempt from notice and public
comments requirements ``when the agency for a good cause finds (and
incorporates the finding and a brief statements of reasons therefor in
the rule issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.''
The terms of the court order prevented the ERP from coming into
effect. In the absence of the ERP, the prior regulatory text remains in
effect. Accordingly, this rule is merely a housekeeping measure that
reflects the court order. The action does not have any substantive
effect.
Public comment could not change the result dictated by the court
order, and is therefore unnecessary and impracticable. In addition,
delay in issuing this rule amending the existing regulations could
result in confusion on the part of state and local air pollution
control agencies as well as the public regarding which text is in
effect. Notice and comment would therefore be
[[Page 40275]]
contrary to the public interest. Accordingly, EPA has concluded that
notice and comment on this rule would be impracticable, unnecessary,
and contrary to the public interest, within the meaning of 5 U.S.C.
553(b)(3)(B).
The EPA also believes that there is good cause to make today's rule
effective immediately, rather than effective within 30 days, within the
meaning of 5 U.S.C. 553(d)(3). For the reasons stated above, EPA has
determined that it is unnecessary, impracticable and contrary to the
public interest to delay this rule. In addition, EPA has balanced the
necessity for immediate implementation against principles of
fundamental fairness, which require that all affected persons be
afforded a reasonable amount of time to prepare for the effective date
of this rule. In so doing, EPA has concluded that, because the court
order came into effect upon issuance, the benefit to the public of
adding to the CFR text a note clarifying the effect of the Court's
action immediately outweighs the need, if any, to give affected parties
time to adjust their behavior accordingly. Indeed, EPA has determined
that, on balance, making this rule effective immediately is in the
public interest and affected parties will better be served by the
avoidance of confusion.
II. Statutory and Executive Order Reviews
This final rule merely conforms the CFR to the terms of the State
of New York v. EPA Court's order of December 24, 2003. In so doing,
this rule has no substantive effect. Therefore, under Executive Order
12866 (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' and is therefore not subject to OMB
review. Because this action is not subject to notice-and-comment
requirements under the Administrative Procedure Act or any other
statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C.
601 et seq.) or sections 202 and 205 of the Unfunded Mandates Reform
Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not
significantly or uniquely affect small governments. This rule does not
have tribal implications, as specified in Executive Order 13175 (63 FR
67249, November 9, 2000). This action will not have federalism
implications, as specified in Executive Order 13132 (64 FR 43255,
August 10, 1999). This action also is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997), because it is not economically
significant. This action is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866.
This action does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The Office
of Management and Budget (OMB) approved the information collection
requirements contained for the NSR regulations that are in effect as a
result of the court order under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control
number 2060-0003, EPA ICR number 1230.10.
III. 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 the Comptroller General of the United
States. 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 rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Parts 51 and 52
Environmental protection, Administrative practices and procedures,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: June 23, 2004.
Michael O. Leavitt,
Administrator.
0
40 CFR parts 51 and 52 are amended as follows:
PART 51--[AMENDED]
0
1. The authority citation for part 51 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
0
2. Section 51.165 is amended by adding notes to paragraphs
(a)(1)(v)(C)(1), (a)(1)(xliii), (a)(1)(xliv), (a)(1)(xlv),
(a)(1)(xlvi), and (h) to read as follows:
Sec. 51.165 Permit requirements.
(a) * * *
(1) * * *
(v) * * *
(C) * * *
(1) * * *
Note to paragraph (a)(1)(v)(C)(1):
On December 24, 2003, the second sentence of this paragraph
(a)(1)(v)(C)(1) is stayed indefinitely by court order. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
* * * * *
(xliii) * * *
Note to paragraph (a)(1)(xliii): By a court order on December
24, 2003, this paragraph (a)(1)(xliii) is stayed indefinitely. The
stayed provisions will become effective immediately if the court
terminates the stay. At that time, EPA will publish a document in
the Federal Register advising the public of the termination of the
stay.
* * * * *
(xliv) * * *
Note to paragraph (a)(1)(xliv): By a court order on December 24,
2003, this paragraph (a)(1)(xliv) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
(xlv) * * *
Note to paragraph (a)(1)(xlv): By a court order on December 24,
2003, this paragraph (a)(1)(xlv) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
(xlvi) * * *
Note to paragraph (a)(1)(xlvi): By a court order on December 24,
2003, this paragraph (a)(1)(xlvi) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
* * * * *
(h) * * *
Note to paragraph (h): By a court order on December 24, 2003,
this paragraph (h) is stayed indefinitely. The stayed provisions
will become effective immediately if the court terminates the stay.
At that time, EPA will publish a document in the Federal Register
advising the public of the termination of the stay.
* * * * *
0
3. Section 51.166 is amended by adding notes to paragraphs
(b)(2)(iii)(a), (b)(53), (b)(54), (b)(55), (b)(56) and (y) to read as
follows:
[[Page 40276]]
Sec. 51.166 Prevention of significant deterioration of air quality.
* * * * *
(b) * * *
(2) * * *
(iii) * * *
(a) * * *
Note to paragraph (b)(2)(iii)(a):
On December 24, 2003, the second sentence of this paragraph
(b)(2)(iii)(a) is stayed indefinitely by court order. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
* * * * *
(53) * * *
Note to paragraph (b)(53): By a court order on December 24,
2003, this paragraph (b)(53) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
(54) * * *
Note to paragraph (b)(54): By a court order on December 24,
2003, this paragraph (b)(54) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
(55) * * *
Note to paragraph (b)(55): By a court order on December 24,
2003, this paragraph (b)(55) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
(56) * * *
Note to paragraph (b)(56): By a court order on December 24,
2003, this paragraph (b)(56) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
* * * * *
(y) * * *
Note to paragraph (y): By a court order on December 24, 2003,
this paragraph (y) is stayed indefinitely. The stayed provisions
will become effective immediately if the court terminates the stay.
At that time, EPA will publish a document in the Federal Register
advising the public of the termination of the stay.
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Section 52.21 is amended by adding notes to paragraphs
(b)(2)(iii)(a), (b)(55), (b)(56), (b)(57), (b)(58) and (cc) to read as
follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
* * * * *
(b) * * *
(2) * * *
(iii) * * *
(a) * * *
Note to paragraph (b)(2)(iii)(a): By court order on December 24,
2003, the second sentence of this paragraph (b)(2)(iii)(a) is stayed
indefinitely. The stayed provisions will become effective
immediately if the court terminates the stay. At that time, EPA will
publish a document in the Federal Register advising the public of
the termination of the stay.
* * * * *
(55) * * *
Note to paragraph (b)(55): By a court order on December 24,
2003, this paragraph (b)(55) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
(56) * * *
Note to paragraph (b)(56): By a court order on December 24,
2003, this paragraph (b)(56) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
(57) * * *
Note to paragraph (b)(57): By a court order on December 24,
2003, this paragraph (b)(57) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
(58) * * *
Note to paragraph (b)(58): By a court order on December 24,
2003, this paragraph (b)(58) is stayed indefinitely. The stayed
provisions will become effective immediately if the court terminates
the stay. At that time, EPA will publish a document in the Federal
Register advising the public of the termination of the stay.
* * * * *
(cc) * * *
Note to paragraph (cc): By a court order on December 24, 2003,
this paragraph (cc) is stayed indefinitely. The stayed provisions
will become effective immediately if the court terminates the stay.
At that time, EPA will publish a document in the Federal Register
advising the public of the termination of the stay.
* * * * *
[FR Doc. 04-14989 Filed 6-30-04; 8:45 am]
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