[Federal Register Volume 75, Number 95 (Tuesday, May 18, 2010)]
[Rules and Regulations]
[Pages 27643-27644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11299]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2003-0064; FRL-9150-5]
RIN 2060-AP80
Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NSR): Aggregation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Delay of effective date.
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SUMMARY: EPA is delaying the effective date of the final rule titled
``Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NSR): Aggregation'' under the authority of the
Administrative Procedure Act (APA) section 705 until the proceeding for
judicial review of this rule is completed or EPA completes the
reconsideration of the rule. This final rule for ``aggregation,'' which
EPA published in the Federal Register on January 15, 2009, is subject
to a petition for review and has not become effective.
DATES: The effective date of FR Doc. E9-815, published in the Federal
Register on January 15, 2009 (74 FR 2376), and delayed on February 13,
2009 (74 FR 7284) and May 14, 2009 (74 FR 22693), which was May 18,
2010, is further delayed until such time as the proceeding for judicial
review of this document is completed. The EPA will publish a document
in the Federal Register announcing the effective date once the delay is
no longer necessary.
ADDRESSES: Docket: The final rule, the petition for reconsideration,
and all other documents in the record for the rulemaking are in Docket
ID. No. EPA-HQ-OAR-2003-0064. 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., 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 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 (202)
566-1744.
FOR FURTHER INFORMATION CONTACT: Mr. David J. Svendsgaard, Air Quality
Policy Division, Office of Air Quality Planning and Standards (C504-
03), U.S. Environmental Protection Agency, Research Triangle Park, NC
27711, telephone (919) 541-2380, fax number (919) 541-5509, e-mail
address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On January 15, 2009, the EPA (``we'') issued a final rule amending
the PSD and nonattainment NSR regulations that implement the definition
of ``modification'' in Clean Air Act section 111(a)(4). The amendments
addressed when a source must combine (``aggregate'') nominally-separate
physical changes and changes in the method of operation for the purpose
of determining whether they are a single change under NSR and result in
a significant emissions increase. The amendments retained the existing
rule language for aggregation but interpreted that rule text to mean
that sources and permitting authorities should combine emissions when
activities are ``substantially related.'' It also adopted a rebuttable
presumption that activities at a plant can be presumed not to be
substantially related if they occur 3 or more years apart.
Collectively, this rulemaking is known as the ``NSR Aggregation
Amendments.'' For further information on the NSR Aggregation
Amendments, see 74 FR 2376 (January 15, 2009).
The NSR Aggregation Amendments have had their effectiveness delayed
by two actions published in the Federal Register. See 74 FR 7284
(February 13, 2009) and 74 FR 22693 (May 14, 2009).
[[Page 27644]]
The latter action established an effective date of May 18, 2010. On the
same day as the first action delaying the effectiveness of the NSR
Aggregation Amendments, the EPA convened a proceeding for
reconsideration in response to a petition from the Natural Resources
Defense Council (NRDC).\1\ See 74 FR 7193 (February 13, 2009). In
addition to filing a petition for reconsideration with EPA, NRDC also
filed a petition for review of the NSR Aggregation Amendments in
Federal Court.\2\
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\1\ John Walke, Natural Resources Defense Council, EPA-HQ-OAR-
2003-0064-0116.1.
\2\ NRDC v. EPA, No. 09-1103 (DC Cir.).
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On April 15, 2010, we published in the Federal Register a notice
soliciting comments on the NRDC petition for reconsideration (75 FR
19567). In that notice, we solicited comment on revoking the NSR
Aggregation Amendments and reverting to our policies on aggregation as
they existed prior to the Amendments. We requested comment on whether
the NSR Aggregation Amendments are inconsistent with the statute and
key legal precedent, do not properly resolve the relevant policy
issues, raise implementation concerns, and otherwise do not
sufficiently clarify our aggregation policy to justify abandoning our
prior policy. Additionally, we proposed to further delay the effective
date for the NSR Aggregation Amendments beyond May 18, 2010.
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 not have gone into effect, and
that litigation be pending. As described above, the latter two
requirements plainly are met. We find that justice requires postponing
the effectiveness of the NSR Aggregation Amendments because allowing
the rule to become effective when the Agency has expressed serious
concerns about its viability and policy soundness would lead to
confusion in the regulated community and the public as well as create
difficulties for implementing agencies administering the program.
We also note that the comment period for the April 15, 2010 notice
ends on May 17, 2010. We would not be able to review and respond to
comments on that notice before the NSR Aggregation Amendments would
become effective on May 18, 2010. The failure to complete the
reconsideration or the proposed delay in the effective date would
result in the confusion and difficulties noted above. Therefore, we
find that justice requires postponing the effectiveness of the NSR
Aggregation Amendments in order to allow for proper evaluation of the
comments on the April 15, 2010 notice.
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 NSR Aggregation Amendments until resolution of the
proceeding for judicial review of this rule or the completion of the
reconsideration process. By this action, we are delaying the effective
date of FR Doc. E9-815, published in the Federal Register on January
15, 2009 (74 FR 2376). This delay of effectiveness will remain in place
until judicial review is no longer pending or EPA completes the
reconsideration process.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Aggregation, Air pollution control, Baseline emissions,
Intergovernmental relations, Major modifications, Reporting and
recordkeeping requirements.
40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Aggregation, Air pollution control, Baseline emissions,
Intergovernmental relations, Major modifications, Reporting and
recordkeeping requirements.
Dated: May 6, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-11299 Filed 5-17-10; 8:45 am]
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