[Federal Register Volume 75, Number 28 (Thursday, February 11, 2010)]
[Proposed Rules]
[Pages 6823-6827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2965]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2004-0014: FRL-9113-1]
RIN 2060-AP73
Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NSR): Reconsideration of Inclusion of Fugitive
Emissions; Proposal for Additional Stay
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to put in place an additional 18-month
stay to the existing stay of the inclusion of fugitive emissions
requirements in the federal Prevention of Significant Deterioration
(PSD) program published in the Federal Register on December 19, 2008,
in the final rule entitled, ``Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NSR): Reconsideration of
Fugitive Emissions'' (``Fugitive Emissions Rule''). The Fugitive
Emissions Rule under the federal PSD program requires that fugitive
emissions be included in determining whether a physical or operation
change results in a major modification only for sources in industries
that have been designated through rulemaking under section 302(j) of
the Clean Air Act (Act or CAA).
The existing stay is in effect for three months; that is, from
December 31, 2009, until March 31, 2010. This action proposes to put in
place an additional stay for 18 months, which we believe will allow for
sufficient time for EPA to propose, take public comment on, and issue a
final action concerning the inclusion of fugitive emissions in the
Federal PSD program.
DATES: Comments must be received on or before March 15, 2010.
Public Hearing. If anyone contacts EPA requesting the opportunity
to speak at a public hearing concerning the proposed regulation by
February 22, 2010, we will hold a public hearing on February 26, 2010.
If a hearing is held, the record for the hearing will remain open until
March 29, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2004-0014, 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://
[[Page 6824]]
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,
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: Ms. Carrie Wheeler, Air Quality Policy
Division, (C504-03), U.S. Environmental Protection Agency, Research
Triangle Park, NC, 27711; telephone number (919) 541-9771; 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 potentially affected by this action include sources in all
industry groups. The majority of sources potentially affected are
expected to be in the following groups.
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Industry group SIC \a\ NAICS \b\
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Electric Services....................... 491.................................. 221111, 221112, 221113, 221119,
221121, 221122.
Petroleum Refining...................... 291.................................. 324110.
Industrial Inorganic Chemicals.......... 281.................................. 325181, 325120, 325131, 325182,
211112, 325998, 331311,
325188.
Industrial Organic Chemicals............ 286.................................. 325110, 325132, 325192, 325188,
325193, 325120, 325199.
Miscellaneous Chemical Products......... 289.................................. 325520, 325920, 325910, 325182,
325510.
Natural Gas Liquids..................... 132.................................. 211112.
Natural Gas Transport................... 492.................................. 486210, 221210.
Pulp and Paper Mills.................... 261.................................. 322110, 322121, 322122, 322130.
Paper Mills............................. 262.................................. 322121, 322122.
Automobile Manufacturing................ 371.................................. 336111, 336112, 336211, 336992,
336322, 336312, 336330,
336340, 336350, 336399,
336212, 336213.
Pharmaceuticals......................... 283.................................. 325411, 325412, 325413, 325414.
Mining.................................. 211, 212, 213........................ 21.
Agriculture, Fishing and Hunting........ 111, 112, 113, 115................... 11.
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\a\ Standard Industrial Classification
\b\ North American Industry Classification System.
Entities potentially affected by the subject rule for this proposed
action also include state, local, and tribal governments.
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-2004-0014.
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
[[Page 6825]]
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 Reviews
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 December 19, 2008, the EPA (``we'') issued a final rule revising
our requirements of the major NSR programs regarding the treatment of
fugitive emissions (``Fugitive Emissions Rule''). 73 FR 77882. The
final rule required fugitive emissions to be included in determining
whether a physical or operational change results in a major
modification only for sources in industries that have been designated
through rulemaking under section 302(j) of the Act. The final rule
amended all portions of the major NSR program regulations: Permit
requirements, the PSD program, and the emission offset interpretive
ruling.
On February 17, 2009, the Natural Resources Defense Council (NRDC)
submitted a petition for reconsideration of the December 2008 final
rule as provided for in CAA 307(d)(7)(B).\1\
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\1\ John Walke, NRDC, EPA-HQ-OAR-2004-0014-0060.
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On April 24, 2009, we responded to the February 17, 2009, petition
by letter indicating that we were convening a reconsideration
proceeding for the inclusion of fugitive emissions challenged in the
petition and granting a 3-month administrative stay of the rule
contained in the federal PSD program at 40 CFR parts 51 and 52. The
letter also indicated that we would publish a notice of proposed
rulemaking ``in the near future'' to address the specific issues for
which we are granting reconsideration.\2\
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\2\ Lisa Jackson, US EPA, EPA-HQ-OAR-2004-0014-0062.
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The administrative stay of the Fugitive Emissions Rule became
effective on September 30, 2009. See 74 FR 50115, FR Doc. E9-23503. As
noted above, our authority under section 307(d)(7)(B) to stay a rule or
portion thereof solely under the Administrator's discretion is limited
to 3 months. When we have issued similar administrative stays in the
past, it has often been our practice to also propose an additional 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. An interim
final determination was made to provide an additional stay for 3
months. This additional stay became effective on December 31, 2009. See
74 FR 65692. In this case, we believe that an additional stay for 18
months would provide adequate time for EPA to propose, take comment on,
and issue a final action on issues that are associated with the
inclusion of fugitive emissions provisions. Therefore, we propose to
put in place an additional stay of the fugitive emissions provisions
contained in the Federal PSD program at 40 CFR parts 51 and 52
indefinitely. As alternatives, we also solicit comment on different
time periods for the extension of the stay: (1) for 12 months, until
February 11, 2011; or (2) for 24 months, until February 11, 2012.
Note that we are not taking comment at this time on any substantive
issues concerning any of the provisions subject to the reconsideration.
This notice simply proposes to put in place an additional stay, so
comments should be limited to the issue of whether and how long to add
to the existing administrative stay. A separate Federal Register notice
published in the near future will specifically solicit comment on
issues related to the reconsideration of the inclusion of fugitive
emissions contained in the December 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 put
in place an additional stay for 18 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-
0003. 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
[[Page 6826]]
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 additional stay
to the regulations at 40 CFR parts 51 and 52 concerning the inclusion
of fugitive emissions. 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 put in place an additional stay of the regulations at 40
CFR parts 51 and 52 concerning the inclusion of fugitive emissions.
Thus, this rule is not subject to the requirements of sections 202 or
205 of the Unfunded Mandates Reform Act (UMRA).
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
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 EO 13132. This action only proposes to put in place an
additional stay of the regulations at 40 CFR parts 51 and 52 concerning
the inclusion of fugitive emissions. 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 put in place an additional
stay of the regulations at 40 CFR parts 51 and 52 concerning the
inclusion of fugitive emissions. 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 EO
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 put in place an additional stay
of the regulations at 40 CFR parts 51 and 52 concerning the inclusion
of fugitive emissions.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 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
disproportionately high and adverse human health or environmental
effects on minority or low income populations because it only seeks to
put in place an additional stay of the regulations at 40 CFR parts 51
and 52 concerning the inclusion of fugitive emissions.
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
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notice is also subject to section 307(d) of the CAA (42 U.S.C.
7407(d)).
List of Subjects
40 CFR Part 51
Administrative practices and procedures, Air pollution control,
Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Transportation, Volatile
organic compounds.
40 CFR Part 52
Administrative practices and procedures, Air pollution control,
Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Transportation, Volatile
organic compounds.
Dated: February 4, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-2965 Filed 2-10-10; 8:45 am]
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