Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Removal of Vacated Elements, 32526-32529 [E7-11289]
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Federal Register / Vol. 72, No. 113 / Wednesday, June 13, 2007 / Rules and Regulations
Port Lake Michigan will cause notice of
enforcement of the safety zone
established by this section to be made
by all appropriate means to the affected
segments of the public including
publication in the Federal Register as
practicable, in accordance with 33 CFR
165.7(a). Such means of notification
may also include, but are not limited to
Broadcast Notice to Mariners or Local
Notice to Mariners. The Captain of the
Port Lake Michigan will issue a
Broadcast Notice to Mariners notifying
the public when enforcement of the
safety zone established by this section is
suspended.
(e) Exemption. Public vessels as
defined in paragraph (b) of this section
are exempt from the requirements in
this section.
(f) Wavier. For any vessel, the Captain
of the Port Lake Michigan or a
designated representative may waive
any of the requirements of this section,
upon finding that operational
conditions or other circumstances are
such that application of this section is
unnecessary or impractical for the
purposes of safety or environmental
safety.
Dated: June 6, 2007.
Bruce C. Jones,
Captain, U.S. Coast Guard, Captain of the
Port Lake Michigan.
[FR Doc. E7–11343 Filed 6–12–07; 8:45 am]
BILLING CODE 4910–15–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 52
[EPA–HQ–OAR–2001–0004; FRL–8324–6]
RIN 2060–AN92
Prevention of Significant Deterioration
(PSD) and Nonattainment New Source
Review (NSR): Removal of Vacated
Elements
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: The EPA is amending its
regulations to eliminate the pollution
control project (PCP) and clean unit
(CU) provisions included in its
December 31, 2002 rulemaking entitled
‘‘Prevention of Significant Deterioration
(PSD) and Nonattainment New Source
Review (NSR): Baseline Emissions
Determination, Actual-to-future-actual
Methodology, Plantwide Applicability
Limitations, Clean Units, Pollution
Control Projects.’’ This final rule
conforms the regulations to the decision
by the U.S. Court of Appeals for the D.C.
Circuit, New York v. EPA, 413 F.3d 3
(D.C. Cir. 2005), vacating the PCP and
CU provisions. This action is exempt
from notice-and-comment rulemaking
because it is ministerial in nature.
DATES: This final rule is effective on
June 13, 2007.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
Industry group
No. EPA–HQ–OAR–2001–0004. All
documents in the docket are listed on
the www.regulations.gov Web site.
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
www.regulations.gov or in hard copy at
the EPA Docket Center (Air Docket),
EPA/DC, EPA West, 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
and the telephone number for the Air
Docket is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT: Mr.
David Painter, Office of Air Quality
Planning and Standards, (C504–03),
U.S. EPA, Research Triangle Park, North
Carolina 27711, telephone number (919)
541–5515, fax number (919) 541–5509,
e-mail: painter.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Does This Regulation Apply to Me?
Entities potentially affected by this
final action include sources in all
industry groups. The majority of sources
potentially affected are expected to be in
the following groups.
SIC a
Electric Services .............................................................................
Petroleum Refining .........................................................................
Chemical Processes .......................................................................
491
291
281
Natural Gas Transport ....................................................................
Pulp and Paper Mills ......................................................................
Paper Mills ......................................................................................
Automobile Manufacturing ..............................................................
492
261
262
371
Pharmaceuticals .............................................................................
283
NAICS b
221111, 221112, 221113, 221119, 221121, 221122.
32411.
325181, 32512, 325131, 325182, 211112, 325998, 331311,
325188.
48621, 22121.
32211, 322121, 322122, 32213.
322121, 322122.
336111, 336112, 336712, 336211, 336992, 336322, 336312,
33633, 33634, 33635, 336399, 336212, 336213.
325411, 325412, 325413, 325414.
a Standard
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b North
Industrial Classification
American Industry Classification System.
Entities potentially affected by this
final action also include State, local,
and tribal governments that are
delegated authority to implement these
regulations. This table is not intended to
be exhaustive, but rather provides a
guide for readers regarding entities
likely to be affected by this action. Other
types of entities not listed in the table
could also be affected. To determine
whether your facility would be affected
by this action, you should carefully
examine the applicability criteria in
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parts 51 and 52 of title 40 of the Code
of Federal Regulations.
II. Background and Rationale for
Action
On December 31, 2002, EPA
published a final rule (67 FR 80186)
which established CU and expanded
upon provisions pertaining to PCP
which were initially promulgated on
July 21, 1992 (57 FR 32314). On June 24,
2005, the United States Court of
Appeals for the District of Columbia
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Circuit (the Court) issued an opinion
vacating those portions of the 2002 and
1992 rules that pertained to CU and
PCP. New York v. EPA, 413 F.3d 3 (D.C.
Cir.), reh’g. and reh’g. en banc den. 431
F.3d 801 (2005).
This action removes from the Code of
Federal Regulations (CFR) all provisions
for CU and PCP containing the
provisions vacated by the Court. It
should be noted that nearly identical CU
and PCP provisions are found in 40 CFR
52.21, 51.165, and 51.166, and that the
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Court’s opinion specifically addressed
the CU and PCP provisions in § 52.21,
but not the provisions in §§ 51.165 and
51.166. Even so, the plain language of
the Court’s opinion clearly applies to
the parallel constructions in those latter
provisions; and as a result, today’s
action removes those provisions as well.
Because the Court vacated the language
of the CU and PCP provisions as well as
the legal constructs upon which they
were based, the EPA is rescinding the
CU and PCP provisions by way of a final
rulemaking which is effective upon
publication in the Federal Register. We
are not providing an opportunity for
comment.
The Administrative Procedure Act of
1946 (APA) makes provision for the
procedural path we are following in this
action. In general, the APA requires that
general notice of proposed rulemaking
shall be published in the Federal
Register. Such notice must provide an
opportunity for public participation in
the rulemaking process. The APA does
provide an avenue for an agency to
directly issue a final rulemaking in
certain specific instances. This may
occur, in particular, when an agency for
good cause finds (and incorporates the
finding and a brief statement of reasons
therefore in the rules issued) that notice
and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest. See 5 U.S.C.
553(b)(3)(B).
In this action, the Agency finds that
notice and comment is unnecessary.
This action is ministerial in nature. It
simply implements the decision of the
D.C. Circuit as it pertains to CU and
PCP.
In addition, notice and comment
would be contrary to the public interest
by unnecessarily delaying the removal
of the unlawful CU and PCP provisions
in the CFR. Owner/operators of facilities
capable of causing air pollution are
subject to CAA regulations governing
the manner in which they might act.
Substantial costs are frequently
associated with project delays or
inappropriate actions. To resolve
regulatory concerns up front, those who
would pursue projects which might be
subject to Federal restrictions rely upon
the CFR to provide authoritative
answers as to what requirements apply
to a given proposed project.
III. Implementation
For the reasons cited above, EPA is
making this action effective upon
publication. See 5 U.S.C. 553(d)(3). This
action removes content from the CFR
that has been found to be contrary to the
CAA by a Federal appeals court. This is
a ministerial but necessary action on the
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part of the EPA. Given the substantial
costs to owner/operators of projects
associated with delays and uncertainty,
EPA has good cause to act in the public
interest to implement the court’s
remedy by amending the CFR without
delay.
The Court’s vacatur of PCP and CU
provisions meant that these provisions
could no longer be used. Thus, today’s
rule changes are immediately effective
for jurisdictions using the Federal PSD
program (codified at § 52.21 for areas
without an approved PSD program, for
which we are the reviewing authority,
or for which we have delegated our
authority to issue permits to a State or
local reviewing authority) and for State
and local agency programs
implementing part C (PSD permit
program in § 51.166) or part D
(nonattainment NSR permit program in
§ 51.165) under an approved State
Implementation Plan (SIP). Permitting
authorities with approved SIPs
containing any or all of the 2002 CU,
2002 PCP, or 1992 PCP provisions
should remove those provisions as soon
as feasible, which may be in
conjunction with the next available SIP
revision. Furthermore, recognizing that
some States also adopted our past
guidance policy on PCP 1 into their
approved SIPs, we believe that these
portions of their SIPs should also be
removed in light of the Court decision.2
Because of the Court decision, these
provisions are unlawful and may not be
applied even prior to their removal from
the SIPs.
IV. Statutory and Executive Order
Reviews
The Office of Management and Budget
(OMB) determined this rule is a
significant regulatory action for the
purpose of EO 12866 and requested that
we submit the rule for OMB review. It
does not meet requirements for review
under Executive Order 13045, entitled
Protection of Children from
Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997). It
also does not meet the requirements for
review under Title II of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104–4), Executive Order 13132,
entitled Federalism (64 FR 43255,
August 10, 1999), Executive Order
1 Memorandum dated July 1, 1994. ‘‘Pollution
Control Projects and New Source Review (NSR)
Applicability’’ from John S. Seitz, Director, Office
of Air Quality Planning and Standards, to Air
Directors, Regions I–X.
2 In its Opinion, the Court stated on pages 8–9
that ‘‘EPA also erred in exempting from NSR certain
Pollution Control Projects (‘‘PCPs’’) that decrease
emissions of some pollutants but cause collateral
increases of others. The statute authorizes no such
exception.’’
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32527
13175, entitled Consultation and
Coordination With Indian Tribal
Governments (65 FR 67249, November
9, 2000), Executive Order 13211,
entitled Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355, May
22, 2001), or Executive Order 12898,
entitled Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations (59 FR 7629, February 16,
1994). In addition, this rule does not
impose any impact on small entities and
thus does not require preparation of a
regulatory flexibility analysis under the
Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.).
The deletion of CU and PCP
provisions from NSR and PSD
requirements will reduce the associated
overall reporting and recordkeeping
burden estimates, but this action does
not require any review or approval by
OMB under the Paperwork Reduction
Act (PRA), 44 U.S.C. 3501 et seq. At
some point in the future, EPA will redetermine the total burden associated
with the NSR and PSD rules and will
adjust the estimates to reflect the effects
of this action. The reporting and
recordkeeping burdens associated with
NSR and PSD are approved by OMB
under OMB No. 2060–0003. The current
public reporting burden for NSR and
PSD is estimated to be 4,878,634 hours.
These estimates include the time
needed for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
Pursuant to the Congressional Review
Act, 5 U.S.C. 801 et seq., as added by
the Small Business Regulatory
Enforcement Fairness Act of 1996, 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. However, section 808 of that
Act provides that any rule for which the
issuing agency for good cause finds (and
incorporates the finding and a brief
statement of reasons therefore in the
rule) that notice and public procedure
thereon are impracticable, unnecessary,
or contrary to the public interest, shall
take effect at such time as the agency
promulgating the rule determines (5
U.S.C. 808(2)). As stated previously,
EPA has made such a good cause
finding, including the reasons therefore,
and established an effective date of June
13, 2007. This rule is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
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V. Statutory Authority
The statutory authority for this action
is provided by sections 165–169, 171–
173, and 301 of the Act as amended (42
U.S.C. 7475–7479, 7501–7503, and
7601). This rulemaking is also subject to
section 307(d) of the Act (42 U.S.C.
7407(d)).
VI. Judicial Review
Under section 307(b)(1) of the Act,
judicial review of this final rule is
available only by the filing of a petition
for review in the U.S. Court of Appeals
for the District of Columbia Circuit by
August 13, 2007. Any such judicial
review is limited to only those
objections that are raised with
reasonable specificity in timely
comments. Under section 307(b)(2) of
the Act, the requirements that are the
subject of this final rule may not be
challenged later in civil or criminal
proceedings brought by us to enforce
these requirements.
List of Subjects
40 CFR Part 51
Environmental protection,
Administrative practices and
procedures, Air pollution control,
Baseline emissions, Carbon monoxide,
Hydrocarbons, Intergovernmental
relations, Lead, Nitrogen oxides, Ozone,
Particulate matter, Plantwide
applicability limitations, Pollution
control projects, Sulfur oxides.
40 CFR Part 52
Environmental protection,
Administrative practices and
procedures, Air pollution control,
Baseline emissions, Carbon monoxide,
Hydrocarbons, Intergovernmental
relations, Lead, Nitrogen oxides, Ozone,
Particulate matter, Plantwide
applicability limitations, Pollution
control projects, Sulfur oxides.
Dated: June 5, 2007.
Stephen L. Johnson,
Administrator.
For the reasons set out in the
preamble, title 40, chapter I of the Code
of Federal Regulations is amended as
follows:
I
PART 51—[AMENDED]
1. The authority citation for part 51
continues to read as follows:
sroberts on PROD1PC70 with RULES
I
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
7671q.
Subpart I—[Amended]
2. Section 51.165 is amended as
follows:
I
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a. By removing and reserving
paragraph (a)(1)(v)(C)(8).
I b. By removing paragraph
(a)(1)(vi)(C)(3).
I c. By removing paragraph
(a)(1)(vi)(E)(5).
I d. By removing and reserving
paragraph (a)(1)(xxv).
I e. By removing and reserving
paragraph (a)(1)(xxix).
I f. By removing and reserving
paragraph (a)(2)(ii)(E).
I g. By revising paragraph (a)(2)(ii)(F).
I h. By removing paragraph (a)(2)(iv).
I i. By removing and reserving
paragraphs (a)(3)(ii)(H) and (I).
I j. By revising paragraph (a)(6)
introductory text.
I k. By removing and reserving
paragraphs (c), (d), and (e).
I
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§ 51.165
Permit requirements.
(a) * * *
(2) * * *
(ii) * * *
(F) Hybrid test for projects that
involve multiple types of emissions
units. A significant emissions increase
of a regulated NSR pollutant is projected
to occur if the sum of the emissions
increases for each emissions unit, using
the method specified in paragraphs
(a)(2)(ii)(C) through (D) of this section as
applicable with respect to each
emissions unit, for each type of
emissions unit equals or exceeds the
significant amount for that pollutant (as
defined in paragraph (a)(1)(x) of this
section).
*
*
*
*
*
(6) Each plan shall provide that the
following specific provisions apply to
projects at existing emissions units at a
major stationary source (other than
projects at a source with a PAL) in
circumstances where there is a
reasonable possibility that a project that
is not a part of a major modification may
result in a significant emissions increase
and the owner or operator elects to use
the method specified in paragraphs
(a)(1)(xviii)(B)(1) through (3) of this
section for calculating projected actual
emissions. Deviations from these
provisions will be approved only if the
State specifically demonstrates that the
submitted provisions are more stringent
than or at least as stringent in all
respects as the corresponding provisions
in paragraphs (a)(6)(i) through (v) of this
section.
*
*
*
*
*
I 3. Section 51.166 is amended as
follows:
I a. By removing and reserving
paragraph (a)(7)(iv)(e).
I b. By revising paragraph (a)(7)(iv)(f).
I c. By removing paragraph (a)(7)(vi).
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d. By removing and reserving
paragraph (b)(2)(iii)(h).
I f. By removing paragraph (b)(3)(vi)(d).
I g. By removing and reserving
paragraph (b)(31).
I h. By removing and reserving
paragraph (b)(41).
I i. By revising paragraph (r)(6)
introductory text.
I j. By removing and reserving
paragraphs (t), (u), and (v).
I
§ 51.166 Prevention of significant
deterioration of air quality.
(a) * * *
(7) * * *
(iv) * * *
(f) Hybrid test for projects that involve
multiple types of emissions units. A
significant emissions increase of a
regulated NSR pollutant is projected to
occur if the sum of the emissions
increases for each emissions unit, using
the method specified in paragraphs
(a)(7)(iv)(c) through (d) of this section as
applicable with respect to each
emissions unit, for each type of
emissions unit equals or exceeds the
significant amount for that pollutant (as
defined in paragraph (b)(23) of this
section).
*
*
*
*
*
(r) * * *
(6) Each plan shall provide that the
following specific provisions apply to
projects at existing emissions units at a
major stationary source (other than
projects at a source with a PAL) in
circumstances where there is a
reasonable possibility that a project that
is not a part of a major modification may
result in a significant emissions increase
and the owner or operator elects to use
the method specified in paragraphs
(b)(40)(ii)(a) through (c) of this section
for calculating projected actual
emissions. Deviations from these
provisions will be approved only if the
State specifically demonstrates that the
submitted provisions are more stringent
than or at least as stringent in all
respects as the corresponding provisions
in paragraphs (r)(6)(i) through (v) of this
section.
*
*
*
*
*
PART 52—[AMENDED]
4. The authority citation for part 52
continues to read as follows:
I
Authority: 42 U.S.C. 7401, et seq.
Subpart A—[Amended]
5. Section 52.21 is amended as
follows:
I a. By removing and reserving
paragraph (a)(2)(iv)(e).
I b. By revising paragraph (a)(2)(iv)(f).
I
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c. By removing paragraph (a)(2)(vi).
d. By removing and reserving
paragraph (b)(2)(iii)(h).
I e. By removing paragraph (b)(3)(vi)(d).
I f. By removing and reserving
paragraph (b)(32).
I g. By removing and reserving
paragraph (b)(42).
I h. By revising paragraph (r)(6)
introductory text.
I j. By removing and reserving
paragraphs (x), (y), and (z)
I
I
§ 52.21 Prevention of significant
deterioration of air quality.
(a) * * *
(2) * * *
(iv) * * *
(f) Hybrid test for projects that involve
multiple types of emissions units. A
significant emissions increase of a
regulated NSR pollutant is projected to
occur if the sum of the emissions
increases for each emissions unit, using
the method specified in paragraphs
(a)(2)(iv)(c) through (d) of this section as
applicable with respect to each
emissions unit, for each type of
emissions unit equals or exceeds the
significant amount for that pollutant (as
defined in paragraph (b)(23) of this
section).
*
*
*
*
*
(r) * * *
(6) The provisions of this paragraph
(r)(6) apply to projects at an existing
emissions unit at a major stationary
source (other than projects at a source
with a PAL) in circumstances where
there is a reasonable possibility that a
project that is not a part of a major
modification may result in a significant
emissions increase and the owner or
operator elects to use the method
specified in paragraphs (b)(41)(ii)(a)
through (c) of this section for calculating
projected actual emissions.
*
*
*
*
*
[FR Doc. E7–11289 Filed 6–12–07; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2006–0590; FRL–8325–8]
sroberts on PROD1PC70 with RULES
Approval and Promulgation of
Implementation Plans; Revisions to the
Nevada State Implementation Plan;
Request for Rescission
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: EPA is finalizing the
rescission of the Federal
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implementation plan promulgated
under the Clean Air Act for the
regulation of fugitive sulfur oxides
emissions from a copper smelter that
had operated in the State of Nevada but
that is no longer in existence. This
rescission was proposed in the Federal
Register on August 28, 2006. The
intended effect is to rescind
unnecessary provisions from the
applicable plan.
DATES: Effective Date: This rule is
effective on July 13, 2007.
ADDRESSES: EPA has established docket
number EPA–R09–OAR–2006–0590 for
this action. The index to the docket is
available electronically at https://
regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San
Francisco, California. While all
documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Julie
A. Rose, EPA Region IX, (415) 947–
4126, rose.julie@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. Proposed Action
II. Public Comments and EPA’s Response
III. EPA Action
IV. Statutory and Executive Order Reviews
I. Proposed Action
On August 28, 2006 (71 FR 50875),
EPA proposed approval and disapproval
of portions of the State’s rescission
request and approval of certain
replacement provisions. One of the
rescission requests for which we
proposed approval involved a Federal
implementation plan (FIP) that we
promulgated in the 1970’s at 40 CFR
52.1475(c), (d), and (e) to regulate sulfur
oxides from the Kennecott Copper
Company smelter located in White Pine
County, Nevada. As described further in
our Technical Support Document (TSD)
for the proposed rule, we found that the
last vestige of the Kennecott Copper
Company McGill facility, which was the
subject of the FIP requirements in
52.1475, was removed from the area in
1993, and, therefore, the related FIP
provisions are obsolete. The TSD
contains more information about our
proposed action. On January 3, 2007 (72
FR 11), we took final action on most of
the provisions for which we had
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32529
proposed action on August 28, 2006.
This is the second final action related to
our August 28, 2006 proposal. We will
take final action on the remaining few
provisions for which we proposed
action on August 28, 2006 in a third
separate action.
II. Public Comments and EPA
Responses
EPA’s proposed action provided a 30day public comment period. During this
period, we received no comments
related to the proposed rescission of the
FIP for regulation of the Kennecott
Copper Company smelter in White Pine
County, Nevada.
III. EPA Action
As authorized in section 110(k)(3) of
the Clean Air Act, EPA is finalizing the
approval of the rescission of the Federal
implementation plan promulgated for
the regulation of fugitive sulfur oxides
emissions from the Kennecott Copper
Company smelter that had operated in
White Pine County, Nevada, but that is
no longer in existence. EPA is codifying
this action by revising 40 CFR 52.1475
to remove paragraphs (c), (d), and (e).
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866, Regulatory
Planning and Review
The Office of Management and Budget
(OMB) has exempted this regulatory
action from Executive Order 12866,
entitled ‘‘Regulatory Planning and
Review.’’ This action will rescind a
Federally promulgated rule for an air
pollution emissions source that no
longer exists.
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. This action
will merely rescind a Federally
promulgated rule for an air pollution
emissions source that no longer exists.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
E:\FR\FM\13JNR1.SGM
13JNR1
]]>Agencies
[Federal Register Volume 72, Number 113 (Wednesday, June 13, 2007)]
[Rules and Regulations]
[Pages 32526-32529]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11289]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2001-0004; FRL-8324-6]
RIN 2060-AN92
Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NSR): Removal of Vacated Elements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is amending its regulations to eliminate the pollution
control project (PCP) and clean unit (CU) provisions included in its
December 31, 2002 rulemaking entitled ``Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NSR): Baseline
Emissions Determination, Actual-to-future-actual Methodology, Plantwide
Applicability Limitations, Clean Units, Pollution Control Projects.''
This final rule conforms the regulations to the decision by the U.S.
Court of Appeals for the D.C. Circuit, New York v. EPA, 413 F.3d 3
(D.C. Cir. 2005), vacating the PCP and CU provisions. This action is
exempt from notice-and-comment rulemaking because it is ministerial in
nature.
DATES: This final rule is effective on June 13, 2007.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2001-0004. All documents in the docket are
listed on the www.regulations.gov Web site. 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
www.regulations.gov or in hard copy at the EPA Docket Center (Air
Docket), EPA/DC, EPA West, 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 and the telephone
number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. David Painter, Office of Air
Quality Planning and Standards, (C504-03), U.S. EPA, Research Triangle
Park, North Carolina 27711, telephone number (919) 541-5515, fax number
(919) 541-5509, e-mail: painter.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Does This Regulation Apply to Me?
Entities potentially affected by this final action include sources
in all industry groups. The majority of sources potentially affected
are expected to be in the following groups.
------------------------------------------------------------------------
Industry group SIC a NAICS b
------------------------------------------------------------------------
Electric Services................. 491 221111, 221112, 221113,
221119, 221121, 221122.
Petroleum Refining................ 291 32411.
Chemical Processes................ 281 325181, 32512, 325131,
325182, 211112, 325998,
331311, 325188.
Natural Gas Transport............. 492 48621, 22121.
Pulp and Paper Mills.............. 261 32211, 322121, 322122,
32213.
Paper Mills....................... 262 322121, 322122.
Automobile Manufacturing.......... 371 336111, 336112, 336712,
336211, 336992, 336322,
336312, 33633, 33634,
33635, 336399, 336212,
336213.
Pharmaceuticals................... 283 325411, 325412, 325413,
325414.
------------------------------------------------------------------------
a Standard Industrial Classification
b North American Industry Classification System.
Entities potentially affected by this final action also include
State, local, and tribal governments that are delegated authority to
implement these regulations. This table is not intended to be
exhaustive, but rather provides a guide for readers regarding entities
likely to be affected by this action. Other types of entities not
listed in the table could also be affected. To determine whether your
facility would be affected by this action, you should carefully examine
the applicability criteria in parts 51 and 52 of title 40 of the Code
of Federal Regulations.
II. Background and Rationale for Action
On December 31, 2002, EPA published a final rule (67 FR 80186)
which established CU and expanded upon provisions pertaining to PCP
which were initially promulgated on July 21, 1992 (57 FR 32314). On
June 24, 2005, the United States Court of Appeals for the District of
Columbia Circuit (the Court) issued an opinion vacating those portions
of the 2002 and 1992 rules that pertained to CU and PCP. New York v.
EPA, 413 F.3d 3 (D.C. Cir.), reh'g. and reh'g. en banc den. 431 F.3d
801 (2005).
This action removes from the Code of Federal Regulations (CFR) all
provisions for CU and PCP containing the provisions vacated by the
Court. It should be noted that nearly identical CU and PCP provisions
are found in 40 CFR 52.21, 51.165, and 51.166, and that the
[[Page 32527]]
Court's opinion specifically addressed the CU and PCP provisions in
Sec. 52.21, but not the provisions in Sec. Sec. 51.165 and 51.166.
Even so, the plain language of the Court's opinion clearly applies to
the parallel constructions in those latter provisions; and as a result,
today's action removes those provisions as well. Because the Court
vacated the language of the CU and PCP provisions as well as the legal
constructs upon which they were based, the EPA is rescinding the CU and
PCP provisions by way of a final rulemaking which is effective upon
publication in the Federal Register. We are not providing an
opportunity for comment.
The Administrative Procedure Act of 1946 (APA) makes provision for
the procedural path we are following in this action. In general, the
APA requires that general notice of proposed rulemaking shall be
published in the Federal Register. Such notice must provide an
opportunity for public participation in the rulemaking process. The APA
does provide an avenue for an agency to directly issue a final
rulemaking in certain specific instances. This may occur, in
particular, when an agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefore in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest. See 5 U.S.C.
553(b)(3)(B).
In this action, the Agency finds that notice and comment is
unnecessary. This action is ministerial in nature. It simply implements
the decision of the D.C. Circuit as it pertains to CU and PCP.
In addition, notice and comment would be contrary to the public
interest by unnecessarily delaying the removal of the unlawful CU and
PCP provisions in the CFR. Owner/operators of facilities capable of
causing air pollution are subject to CAA regulations governing the
manner in which they might act. Substantial costs are frequently
associated with project delays or inappropriate actions. To resolve
regulatory concerns up front, those who would pursue projects which
might be subject to Federal restrictions rely upon the CFR to provide
authoritative answers as to what requirements apply to a given proposed
project.
III. Implementation
For the reasons cited above, EPA is making this action effective
upon publication. See 5 U.S.C. 553(d)(3). This action removes content
from the CFR that has been found to be contrary to the CAA by a Federal
appeals court. This is a ministerial but necessary action on the part
of the EPA. Given the substantial costs to owner/operators of projects
associated with delays and uncertainty, EPA has good cause to act in
the public interest to implement the court's remedy by amending the CFR
without delay.
The Court's vacatur of PCP and CU provisions meant that these
provisions could no longer be used. Thus, today's rule changes are
immediately effective for jurisdictions using the Federal PSD program
(codified at Sec. 52.21 for areas without an approved PSD program, for
which we are the reviewing authority, or for which we have delegated
our authority to issue permits to a State or local reviewing authority)
and for State and local agency programs implementing part C (PSD permit
program in Sec. 51.166) or part D (nonattainment NSR permit program in
Sec. 51.165) under an approved State Implementation Plan (SIP).
Permitting authorities with approved SIPs containing any or all of the
2002 CU, 2002 PCP, or 1992 PCP provisions should remove those
provisions as soon as feasible, which may be in conjunction with the
next available SIP revision. Furthermore, recognizing that some States
also adopted our past guidance policy on PCP \1\ into their approved
SIPs, we believe that these portions of their SIPs should also be
removed in light of the Court decision.\2\ Because of the Court
decision, these provisions are unlawful and may not be applied even
prior to their removal from the SIPs.
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\1\ Memorandum dated July 1, 1994. ``Pollution Control Projects
and New Source Review (NSR) Applicability'' from John S. Seitz,
Director, Office of Air Quality Planning and Standards, to Air
Directors, Regions I-X.
\2\ In its Opinion, the Court stated on pages 8-9 that ``EPA
also erred in exempting from NSR certain Pollution Control Projects
(``PCPs'') that decrease emissions of some pollutants but cause
collateral increases of others. The statute authorizes no such
exception.''
---------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
The Office of Management and Budget (OMB) determined this rule is a
significant regulatory action for the purpose of EO 12866 and requested
that we submit the rule for OMB review. It does not meet requirements
for review under Executive Order 13045, entitled Protection of Children
from Environmental Health Risks and Safety Risks (62 FR 19885, April
23, 1997). It also does not meet the requirements for review under
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L.
104-4), Executive Order 13132, entitled Federalism (64 FR 43255, August
10, 1999), Executive Order 13175, entitled Consultation and
Coordination With Indian Tribal Governments (65 FR 67249, November 9,
2000), Executive Order 13211, entitled Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use (66 FR
28355, May 22, 2001), or Executive Order 12898, entitled Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations (59 FR 7629, February 16, 1994). In addition,
this rule does not impose any impact on small entities and thus does
not require preparation of a regulatory flexibility analysis under the
Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.).
The deletion of CU and PCP provisions from NSR and PSD requirements
will reduce the associated overall reporting and recordkeeping burden
estimates, but this action does not require any review or approval by
OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. At
some point in the future, EPA will re-determine the total burden
associated with the NSR and PSD rules and will adjust the estimates to
reflect the effects of this action. The reporting and recordkeeping
burdens associated with NSR and PSD are approved by OMB under OMB No.
2060-0003. The current public reporting burden for NSR and PSD is
estimated to be 4,878,634 hours. These estimates include the time
needed for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information.
Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, 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. However, section 808 of that Act
provides that any rule for which the issuing agency for good cause
finds (and incorporates the finding and a brief statement of reasons
therefore in the rule) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest, shall
take effect at such time as the agency promulgating the rule determines
(5 U.S.C. 808(2)). As stated previously, EPA has made such a good cause
finding, including the reasons therefore, and established an effective
date of June 13, 2007. This rule is not a ``major rule'' as defined by
5 U.S.C. 804(2).
[[Page 32528]]
V. Statutory Authority
The statutory authority for this action is provided by sections
165-169, 171-173, and 301 of the Act as amended (42 U.S.C. 7475-7479,
7501-7503, and 7601). This rulemaking is also subject to section 307(d)
of the Act (42 U.S.C. 7407(d)).
VI. Judicial Review
Under section 307(b)(1) of the Act, judicial review of this final
rule is available only by the filing of a petition for review in the
U.S. Court of Appeals for the District of Columbia Circuit by August
13, 2007. Any such judicial review is limited to only those objections
that are raised with reasonable specificity in timely comments. Under
section 307(b)(2) of the Act, the requirements that are the subject of
this final rule may not be challenged later in civil or criminal
proceedings brought by us to enforce these requirements.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practices and procedures,
Air pollution control, Baseline emissions, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides,
Ozone, Particulate matter, Plantwide applicability limitations,
Pollution control projects, Sulfur oxides.
40 CFR Part 52
Environmental protection, Administrative practices and procedures,
Air pollution control, Baseline emissions, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides,
Ozone, Particulate matter, Plantwide applicability limitations,
Pollution control projects, Sulfur oxides.
Dated: June 5, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 51--[AMENDED]
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart I--[Amended]
0
2. Section 51.165 is amended as follows:
0
a. By removing and reserving paragraph (a)(1)(v)(C)(8).
0
b. By removing paragraph (a)(1)(vi)(C)(3).
0
c. By removing paragraph (a)(1)(vi)(E)(5).
0
d. By removing and reserving paragraph (a)(1)(xxv).
0
e. By removing and reserving paragraph (a)(1)(xxix).
0
f. By removing and reserving paragraph (a)(2)(ii)(E).
0
g. By revising paragraph (a)(2)(ii)(F).
0
h. By removing paragraph (a)(2)(iv).
0
i. By removing and reserving paragraphs (a)(3)(ii)(H) and (I).
0
j. By revising paragraph (a)(6) introductory text.
0
k. By removing and reserving paragraphs (c), (d), and (e).
Sec. 51.165 Permit requirements.
(a) * * *
(2) * * *
(ii) * * *
(F) Hybrid test for projects that involve multiple types of
emissions units. A significant emissions increase of a regulated NSR
pollutant is projected to occur if the sum of the emissions increases
for each emissions unit, using the method specified in paragraphs
(a)(2)(ii)(C) through (D) of this section as applicable with respect to
each emissions unit, for each type of emissions unit equals or exceeds
the significant amount for that pollutant (as defined in paragraph
(a)(1)(x) of this section).
* * * * *
(6) Each plan shall provide that the following specific provisions
apply to projects at existing emissions units at a major stationary
source (other than projects at a source with a PAL) in circumstances
where there is a reasonable possibility that a project that is not a
part of a major modification may result in a significant emissions
increase and the owner or operator elects to use the method specified
in paragraphs (a)(1)(xviii)(B)(1) through (3) of this section for
calculating projected actual emissions. Deviations from these
provisions will be approved only if the State specifically demonstrates
that the submitted provisions are more stringent than or at least as
stringent in all respects as the corresponding provisions in paragraphs
(a)(6)(i) through (v) of this section.
* * * * *
0
3. Section 51.166 is amended as follows:
0
a. By removing and reserving paragraph (a)(7)(iv)(e).
0
b. By revising paragraph (a)(7)(iv)(f).
0
c. By removing paragraph (a)(7)(vi).
0
d. By removing and reserving paragraph (b)(2)(iii)(h).
0
f. By removing paragraph (b)(3)(vi)(d).
0
g. By removing and reserving paragraph (b)(31).
0
h. By removing and reserving paragraph (b)(41).
0
i. By revising paragraph (r)(6) introductory text.
0
j. By removing and reserving paragraphs (t), (u), and (v).
Sec. 51.166 Prevention of significant deterioration of air quality.
(a) * * *
(7) * * *
(iv) * * *
(f) Hybrid test for projects that involve multiple types of
emissions units. A significant emissions increase of a regulated NSR
pollutant is projected to occur if the sum of the emissions increases
for each emissions unit, using the method specified in paragraphs
(a)(7)(iv)(c) through (d) of this section as applicable with respect to
each emissions unit, for each type of emissions unit equals or exceeds
the significant amount for that pollutant (as defined in paragraph
(b)(23) of this section).
* * * * *
(r) * * *
(6) Each plan shall provide that the following specific provisions
apply to projects at existing emissions units at a major stationary
source (other than projects at a source with a PAL) in circumstances
where there is a reasonable possibility that a project that is not a
part of a major modification may result in a significant emissions
increase and the owner or operator elects to use the method specified
in paragraphs (b)(40)(ii)(a) through (c) of this section for
calculating projected actual emissions. Deviations from these
provisions will be approved only if the State specifically demonstrates
that the submitted provisions are more stringent than or at least as
stringent in all respects as the corresponding provisions in paragraphs
(r)(6)(i) through (v) of this section.
* * * * *
PART 52--[AMENDED]
0
4. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
0
5. Section 52.21 is amended as follows:
0
a. By removing and reserving paragraph (a)(2)(iv)(e).
0
b. By revising paragraph (a)(2)(iv)(f).
[[Page 32529]]
0
c. By removing paragraph (a)(2)(vi).
0
d. By removing and reserving paragraph (b)(2)(iii)(h).
0
e. By removing paragraph (b)(3)(vi)(d).
0
f. By removing and reserving paragraph (b)(32).
0
g. By removing and reserving paragraph (b)(42).
0
h. By revising paragraph (r)(6) introductory text.
0
j. By removing and reserving paragraphs (x), (y), and (z)
Sec. 52.21 Prevention of significant deterioration of air quality.
(a) * * *
(2) * * *
(iv) * * *
(f) Hybrid test for projects that involve multiple types of
emissions units. A significant emissions increase of a regulated NSR
pollutant is projected to occur if the sum of the emissions increases
for each emissions unit, using the method specified in paragraphs
(a)(2)(iv)(c) through (d) of this section as applicable with respect to
each emissions unit, for each type of emissions unit equals or exceeds
the significant amount for that pollutant (as defined in paragraph
(b)(23) of this section).
* * * * *
(r) * * *
(6) The provisions of this paragraph (r)(6) apply to projects at an
existing emissions unit at a major stationary source (other than
projects at a source with a PAL) in circumstances where there is a
reasonable possibility that a project that is not a part of a major
modification may result in a significant emissions increase and the
owner or operator elects to use the method specified in paragraphs
(b)(41)(ii)(a) through (c) of this section for calculating projected
actual emissions.
* * * * *
[FR Doc. E7-11289 Filed 6-12-07; 8:45 am]
BILLING CODE 6560-50-P
