[Federal Register Volume 74, Number 140 (Thursday, July 23, 2009)]
[Proposed Rules]
[Pages 36427-36430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17541]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2003-0062: FRL-8934-3]
RIN 2060-AP65
Implementation of the New Source Review (NSR) Program for
Particulate Matter Less Than 2.5 Micrometers (PM2.5);
Proposal To Extend Administrative Stay
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to extend for an additional nine months
the existing administrative stay of the ``grandfathering'' provision
for particulate matter less than 2.5 micrometers (PM2.5)
requirements in the Federal Prevention of Significant Deterioration
(PSD) program published in the Federal Register on May 16, 2008 as part
of the final rule entitled, ``Implementation of the New Source Review
(NSR) Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5).'' The grandfathering provision under the Federal
PSD program allows the permitting authority to review PSD permit
applications received before July 15, 2008 according to EPA's 1997
policy of satisfying the requirements for particulate matter less than
10 micrometers (PM10) as a surrogate for meeting the new
requirements for PM2.5.
The existing administrative stay is in effect for three months;
that is, from June 1, 2009 until September 1, 2009. This action
proposes to extend the existing administrative stay by an additional
nine months, which we believe will allow for sufficient time for EPA to
propose, take public comment on, and issue a final action concerning
the repeal of the grandfathering provision for PM2.5 in the
Federal PSD program.
DATES: Comments must be received on or before August 24, 2009.
Public Hearing. If anyone contacts EPA requesting the opportunity
to speak at a public hearing concerning the proposed regulation by
August 3, 2009, we will hold a public hearing on August 7, 2009. If a
hearing is held, the record for the hearing will remain open until
September 8, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0062, by one of the following methods:
http://www.regulations.gov. Follow the online instructions
for submitting comments.
E-mail: [email protected].
Fax: (202) 566-1741.
Mail: Air and Radiation Docket, Environmental Protection
Agency, Mail code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC
20460.
Hand Delivery: EPA Docket Center, Public Reading Room, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to the applicable docket. EPA's
policy is that all comments received will be included in the public
docket without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous
access'' system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.
Public Hearing. If a public hearing is held, it will be held at the
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20004.
Docket: 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., 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 through http://www.regulations.gov or in hard copy at the EPA Docket Center, Public
Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC 20460. 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) 566-1742, and the
telephone number for the Air Docket is (202) 566-1744.
FOR FURTHER INFORMATION CONTACT: Mr. Dan deRoeck, Air Quality Policy
Division, (C504-03), U.S. Environmental Protection Agency, Research
Triangle Park, NC 27711; telephone number (919) 541-5593; fax number
(919) 541-5509; or e-mail address: [email protected].
To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number (919) 541-0641; fax number (919) 541-5509; e-
mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities affected by this proposed action are the owners and
operators of proposed new sources and
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modifications who submitted a complete application for a PSD permit
before the July 15, 2008 effective date of the PM2.5 NSR
Implementation Rule, but have not yet received their permit to
construct. EPA estimates that fewer than 20 proposed sources are
covered by the grandfathering provision that we are proposing to
repeal. At least two of the projects have already received their permit
to construct prior to EPA taking action to stay the provision.
Entities also affected by this proposed rule include State and
local reviewing authorities and Indian country with new and modified
major stationary sources affected by this rule.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit information containing CBI to EPA
through http://www.regulations.gov or e-mail. Send or deliver
information identified as CBI only to the following address: Mr.
Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA,
Office of Air Quality Planning and Standards, Research Triangle Park,
North Carolina 27711, Attention: Docket ID EPA-HQ-OAR-2003-0062.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark
the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
2. Tips for Preparing Your Comments. When submitting your comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where Can I Get a Copy of This Document and Other Related
Information?
In addition to being available in the docket, an electronic copy of
this proposed rule will also be available on the World Wide Web.
Following signature by the EPA Administrator, a copy of this final rule
will be posted in the regulations and standards section of our NSR home
page located at http://www.epa.gov/nsr.
D. How Can I Find Information About a Possible Public Hearing?
To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number (919) 541-0641; fax number (919) 541-5509; e-
mail address: [email protected].
E. How Is This Preamble Organized?
I. General Information
A. Does This Action Apply to Me?
B. What Should I Consider as I Prepare my Comments for EPA?
C. Where Can I Get a Copy of This Document and Other Related
Information?
D. How Can I Find Information About a Possible Public Hearing?
E. How Is This Preamble Organized?
II. This Action
III. Statutory and Executive Order Review.
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 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. Determination Under Section 307(d)
IV. Statutory Authority
II. This Action
On May 16, 2008, the EPA (``we'') issued a final rule amending our
PSD and nonattainment NSR regulations to add requirements for the
preconstruction review of PM2.5. 73 FR 28321. The amendments
addressed the major source threshold, significant emissions rate and
offset ratios for PM2.5; interpollutant trading for offsets;
and applicability of NSR to PM2.5 precursors. The rule also
provided for the transition of the new requirements for
PM2.5 in the NSR permitting process.
On February 10, 2009, Earthjustice, on behalf of the Natural
Resources Defense Council and Sierra Club, submitted a petition for
reconsideration of four specific provisions of the May 2008 final rule
as provided for in Clean Air Act (CAA) 307(d)(7)(B).\1\ The specific
provisions challenged by the petitioners include: (1) A transition
period for PSD programs in States with approved PSD rules in their
approved State Implementation Plans (SIPs) to revise and submit their
new PM2.5 regulations to EPA within three years of the
publication of the final rule. During the transition period, the rule
allows States to continue using EPA's 1997 surrogate policy by which an
analysis based on PM10 can be used to meet the requirements
for the otherwise required PM2.5; (2) ``grandfathering''
under the Federal PSD program for permit applications submitted before
the July 15, 2008 effective date of the new rule, which allows the
PM10 surrogate policy to continue to be used as the basis
for approving such permits for PM2.5; (3) a transition
period, during which time EPA is re-evaluating its test methods for
condensable particulate matter (CPM) emissions, whereby States are not
required to account for CPM in the permitting process; and (4) use of
recommended interpollutant trading ratios to facilitate the trading of
PM2.5 precursors emissions reductions for new emissions of
PM2.5 in areas designated ``nonattainment'' for
PM2.5.
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\1\ Paul Cort, Earthjustice, on behalf of the Natural Resources
Defense Council and Sierra Club, EPA-HQ-OAR-2003-0062-0281.
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Under CAA 307(d)(7)(B), the Administrator may commence a
reconsideration proceeding if the petitioner raises an objection to a
rule that was impracticable to raise during the comment period or if
the grounds for the objection arose after the comment period. In either
case, the objection must be of central relevance to the outcome of the
rule. The
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Administrator may stay the effectiveness of the rule for up to three
months during such reconsideration.
On April 24, 2009, we responded to the February 10, 2009 petition
by letter indicating that we were convening a reconsideration
proceeding for all four issues challenged in the petition and granting
a three-month administrative stay of one of the provisions--the
grandfathering provision for PM2.5 contained in the Federal
PSD program at 40 CFR 52.21(i)(1)(xi). The letter also indicated that
we would publish a notice of proposed rulemaking ``in the near future''
to propose repealing the grandfathering provision for PM2.5
in the Federal PSD program, on the grounds that it was adopted without
prior public notice and is no longer substantially justified in light
of the resolution of technical issues with respect to PM2.5
monitoring, emissions estimation, and air quality modeling that led to
the PM10 surrogate policy in 1997.
The administrative stay of the grandfathering provision for
PM2.5 was issued and became effective on June 1, 2009. See
74 FR 26098, FR Doc. E9-12575. As noted above, our authority to stay a
rule or portion thereof solely under the Administrator's discretion is
limited to three months. When we have issued similar administrative
stays in the past, it has often been our practice to also propose an
extension of the stay through a rulemaking process to ensure that there
is no gap between the end of the stay and the completion of the final
action. In this case, we believe that an extension of the
administrative stay for an additional nine months would provide
adequate time for EPA to propose, take comment on, and issue a final
action on issues that are associated with the grandfathering provision
for PM2.5 that we are proposing to repeal. Therefore, we
propose to extend the administrative stay of the grandfathering
provision for PM2.5 contained in the Federal PSD program at
40 CFR 52.21(i)(1)(xi) for an additional nine months, until June 1,
2010. As alternatives, we also solicit comment on different time
periods for the extension of the stay: (1) For six months, until March
1, 2010; or (2) for twelve months, until September 1, 2010.
Note that we are not taking comment at this time on any substantive
issues concerning the repeal of the grandfathering provision for
PM2.5 contained in the Federal PSD program, or on any of the
other provisions subject to the reconsideration. This notice simply
proposes to further extend the administrative stay, so comments should
be limited to the issue of whether and how long to extend the existing
administrative stay. A separate Federal Register notice published in
the near future will specifically solicit comment on issues related to
the repeal of the grandfathering provision for PM2.5
contained in the Federal PSD program. In yet another subsequent notice,
we plan to solicit comment on issues related to the remaining three
provisions of the May 2008 final rule for which the Administrator
granted reconsideration.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it raises
novel legal or policy issues. Accordingly, EPA submitted this action to
the Office of Management and Budget (OMB) for review under EO 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.
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 1320.3(b). This action only proposes to
extend the existing administrative stay for an additional nine months.
However, the Office of Management and Budget has previously
approved the information collection requirements contained in the
existing regulations under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-
0033 [EPA ICR No. 1230.21]. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
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 proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any new requirements on small entities.
We have determined that small businesses will not incur any adverse
impacts because EPA is taking this action to propose an extension of
the existing administrative stay of one amendment to the regulations at
40 CFR 52.21 concerning the grandfathering provision that affects fewer
than 20 major stationary sources. No costs are associated with this
amendment.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
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, and Tribal governments, in the
aggregate, or the private sector in any one year. This action only
proposes to extend the existing administrative stay of one provision of
the regulations at 40 CFR 52.21 concerning the grandfathering provision
that affects fewer than 20 sources. Thus, this rule is not subject to
the requirements of sections 202 or 205.
This proposed 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
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 the EO to
include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the
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distribution of power and responsibilities among the various levels of
government.''
This proposed rule 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 EO 13132. This action only proposes to extend the
existing administrative stay of one provision of the regulations at 40
CFR 52.21 concerning the grandfathering provision for PM2.5
that affects fewer than 20 sources. Thus, EO 13132 does not apply to
this rule.
In the spirit of EO 13132, and consistent with EPA policy to
promote communications between EPA and State and local governments, EPA
specifically solicits comment on this proposed rule from State and
local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications, as specified in EO
13175 (65 FR 67249, November 9, 2000.) This action will not impose any
new obligations or enforceable duties on Tribal governments. Thus, EO
13175 does not apply to this action.
EPA specifically solicits additional comment on this proposed
action from Tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets EO 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 EO has the
potential to influence the regulation. This action is not subject to EO
13045 because this proposal only proposes to extend the existing
administrative stay of one provision of the regulations at 40 CFR 52.21
concerning the grandfathering provision for PM2.5 that
affects fewer than 20 sources. However, EPA solicits comments on
whether the proposal would result in an adverse environmental effect
that would have a disproportionate effect on children.
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. This proposal only proposes to extend
the existing administrative stay of one provision of the regulations at
40 CFR 52.21 concerning the grandfathering provision for
PM2.5 that affects fewer than 20 sources.
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 proposed rulemaking does not involve technical standards.
Therefore, 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 (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 their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have a
disproportionately high and adverse human health or environmental
effect on minority or low-income populations because it only seeks to
extend the existing administrative stay on one provision in the
regulations at 40 CFR 52.21 concerning the grandfathering provision for
PM2.5 that affects fewer than 20 sources.
K. Determination Under Section 307(d)
Pursuant to sections 307(d)(1)(J) and 307(d)(1)(V) of the CAA, the
Administrator determines that this action is subject to the provisions
of section 307(d). Section 307(d)(1)(V) provides that the provisions of
section 307(d) apply to ``such other actions as the Administrator may
determine.''
IV. Statutory Authority
The statutory authority for this action is provided by section
301(a) of the CAA as amended (42 U.S.C. 7601(a)). This notice is also
subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).
List of Subjects in 40 CFR Part 52
Administrative practices and procedures, Air pollution control,
Environmental protection, Intergovernmental relations.
Dated: July 16, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-17541 Filed 7-22-09; 8:45 am]
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