Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Inclusion of Fugitive Emissions; Final Rule; Stay, 16012-16017 [2010-7036]
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Federal Register / Vol. 75, No. 61 / Wednesday, March 31, 2010 / Rules and Regulations
have concluded this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule is categorically
excluded, under figure 2–1, paragraph
(34)(g), of the Instruction. This rule
involves the establishment of a
temporary safety zone to protect the
public from dangerous water conditions.
An environmental analysis checklist
and a categorical exclusion
determination are available in the
docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
■ For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
(3) The ‘‘on-scene representative’’ of
the Captain of the Port is any Coast
Guard commissioned, warrant or petty
officer who has been designated by the
Captain of the Port to act on his behalf.
The on-scene representative of the
Captain of the Port will be aboard either
a Coast Guard or Coast Guard Auxiliary
vessel. The Captain of the Port or his
designated on-scene representative may
be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter
or operate within the safety zone shall
contact the Captain of the Port Duluth
or his on-scene representative to obtain
permission to do so. Vessel operators
given permission to enter or operate in
the safety zone must comply with all
directions given to them by the Captain
of the Port Duluth or his on-scene
representative.
March 19, 2010.
M.P. Lebsack,
Commander, U.S. Coast Guard, Captain of
the Port Duluth.
[FR Doc. 2010–7158 Filed 3–30–10; 8:45 am]
BILLING CODE 9110–04–P
1. The authority citation for part 165
continues to read as follows:
■
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Pub. L. 107–295, 116 Stat. 2064; Department
of Homeland Security Delegation No. 0170.1.
2. Add § 165.T09–0198 to read as
follows:
■
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§ 165.T09–0198
MN.
Safety zone; Red River,
(a) Location. The following area is a
temporary safety zone: All navigable
waters of the Red River in the State of
Minnesota north of a line drawn across
latitude 46°20′00″ N, including those
portions of the river in Wilkin, Clay,
Norman, Polk, Marshall and Kittson
counties, to the United States-Canada
international border.
(b) Enforcement period. This rule is
effective from 12 p.m. on March 19,
2010 until 5 p.m. on April 24, 2010. If
the river conditions change such that
enforcement of the safety zone is
unnecessary prior to 5 p.m. on April 24,
2010, the COTP will notify the public
via a Broadcast Notice to Mariners.
(c) Regulations. (1) In accordance with
the general regulations in section 165.23
of this part, entry into, transiting, or
anchoring within this safety zone is
prohibited unless authorized by the
Captain of the Port Duluth, or his
designated on-scene representative.
(2) This safety zone is closed to all
vessel traffic, except as may be
permitted by the Captain of the Port
Duluth or his designated on-scene
representative.
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 52
[EPA–HQ–OAR–2004–0014: FRL–9131–9;
2060–AP73]
Prevention of Significant Deterioration
(PSD) and Nonattainment New Source
Review (NSR): Inclusion of Fugitive
Emissions; Final Rule; Stay
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: In this final action, EPA is
issuing a stay for 18 months 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
operational 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 3 months;
that is, from December 31, 2009 until
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March 31, 2010. This action puts 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: The amendments to 40 CFR parts
51 and 52 in this rule are effective from
April 1, 2010 through October 3, 2011.
Effective April 1, 2010, the following
Code of Federal Regulations sections are
administratively stayed until October 3,
2011: 40 CFR 51.165(a)(1)(v)(G),
(a)(1)(vi)(C)(3), (a)(1)(ix),
(a)(1)(xxviii)(B)(2), (a)(1)(xxviii)(B)(4),
(a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1),
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D),
(a)(2)(ii)(B), (a)(6)(iii), (a)(6)(iv), and
(f)(4)(i)(D); 40 CFR 51.166, (a)(7)(iv)(b),
(b)(2)(v), (b)(3)(iii)(c), (b)(3)(iii)(d),
(b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d),
(b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii),
(b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and
(w)(4)(i)(d); 40 CFR part 51, Appendix
S, paragraphs II.A.5(vii), II.A.6(iii),
II.A.9, II.A.24(ii)(b), II.A.24(ii)(d),
II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii),
II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and
IV.K.4(i)(d); and 40 CFR 52.21,
(a)(2)(iv)(b), (b)(2)(v), (b)(3)(iii)(b),
(b)(3)(iii)(c), (b)(20), (b)(41)(ii)(b),
(b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a),
(b)(48)(iii), (b)(48)(iv), (r)(6)(iii),
(r)(6)(iv), and (aa)(4)(i)(d).
ADDRESSES: Docket: All documents in
the docket are listed in the https://
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,
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 https://
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
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Federal Register / Vol. 75, No. 61 / Wednesday, March 31, 2010 / Rules and Regulations
number (919) 541–5509; or e-mail
address: wheeler.carrie@epa.gov.
I. General Information
SUPPLEMENTARY INFORMATION:
Entities potentially affected by this
action include sources in all industry
A. Does this action apply to me?
16013
groups. The majority of sources
potentially affected are expected to be in
the following groups.
Industry group
SIC a
NAICS b
Electric Services ...........................................................
Petroleum Refining .......................................................
Industrial Inorganic Chemicals .....................................
491 ............................
291 ............................
281 ............................
Industrial Organic Chemicals .......................................
Miscellaneous Chemical Products ...............................
Natural Gas Liquids .....................................................
Natural Gas Transport .................................................
Pulp and Paper Mills ....................................................
Paper Mills ...................................................................
Automobile Manufacturing ...........................................
286
289
132
492
261
262
371
Pharmaceuticals ...........................................................
Mining ...........................................................................
Agriculture, Fishing and Hunting ..................................
283 ............................
211, 212, 213 ............
111, 112, 113, 115 ....
221111, 221112, 221113, 221119, 221121, 221122.
324110.
325181, 325120, 325131, 325182, 211112, 325998, 331311,
325188.
325110, 325132, 325192, 325188, 325193, 325120, 325199.
325520, 325920, 325910, 325182, 325510.
211112.
486210, 221210.
322110, 322121, 322122, 322130.
322121, 322122.
336111, 336112, 336211, 336992, 336322, 336312, 336330,
336340, 336350, 336399, 336212, 336213.
325411, 325412, 325413, 325414.
21.
11.
a
b
Standard Industrial Classification.
North American Industry Classification System.
Entities potentially affected by the
subject rule for this proposed action also
include state, local, and tribal
governments.
B. 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 final
rule is also be available on the World
Wide Web in the regulations and
standards section of our NSR home page
located at https://www.epa.gov/nsr.
C. How is this preamble organized?
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I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document
and other related information?
C. How is this preamble organized?
II. This Action
A. Background
B. Final Rule
C. Comments and Responses
D. Basis for Making This Rule Effective on
the Date of Publication
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
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J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
L. The Congressional Review Act
M. Basis for Making This Rule Effective on
the Date of Publication
IV. Statutory Authority
II. This Action
A. Background
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 CAA. 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 submitted a
petition for reconsideration of the
December 2008 final rule as provided
for in CAA 307(d)(7)(B).1
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
1 John Walke, NRDC, EPA–HQ–OAR–2004–0014–
0060.
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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
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. 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.
B. Final Rule
In this final rule we are staying the
Fugitive Emissions Rule for 18 months.
As described above, the same provisions
were administratively stayed for 3
months; however, that stay ended on
December 30, 2009. To avoid a gap
between the end of the stay and the
proposed additional stay, an interim
final determination was made to
provide an additional stay for 3 months,
ending on March 31, 2010. We believe
the 18 month additional stay is needed
and will 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. Therefore, we are issuing this
stay of the final Fugitive Emissions Rule
in the federal PSD program at 40 CFR 51
2 Lisa Jackson, U.S. EPA, EPA–HQ–OAR–2004–
0014–0062.
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III. Statutory and Executive Order
Reviews
C. Comments and Responses
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and 52 for 18 months, until October 3,
2011.
A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under the Executive
Order.
When we proposed this stay on
February 11, 2010, we did not take
comment on any substantive issues
concerning the inclusion of fugitive
emissions in the NSR program as stated
in the Fugitive Emissions Rule.
Comments sought were to be limited to
the issue of whether to establish this
additional stay and how long this stay
would be. [75 FR 6823 at 6825].
We received three comments on the
proposal for this additional stay of the
Fugitive Emissions Rule. The first
commenter supported the additional
stay for ‘‘18 months, 24 months, or
however long it takes for the current
administration to reverse the rule and
return to EPA’s longstanding, lawful,
and more protective approach.’’
One industry coalition commenter
opposed the additional 18 month stay to
‘‘take substantive action and facilitate
resolution of this significant permit
applicability issue.’’ Further, the
commenter suggested that any delay
‘‘makes compliance with already
complex PSD and NSR rules just that
more difficult.’’ No additional detail is
provided regarding the difficulties with
compliance for these rules. We agree
with the industry coalition commenter
that EPA should take substantive action
to facilitate resolution of this
applicability issue. However, we believe
that 18 months is necessary to allow
EPA sufficient time to propose, take
public comment on, and issue a final
action concerning the inclusion of
fugitive emissions in the federal PSD
program. The commenter does not
provide further details to demonstrate
how this stay negatively impacts
compliance. In our view, it is imperative
the Fugitive Emissions Rule continue to
be stayed while we undergo the
reconsideration process to reduce
confusion. If it is effective during this
process and the Rule is ultimately
changed, it would only further
complicate compliance with PSD and
NSR rules, an issue of concern for the
commenter.
The final commenter did not
comment specifically on the proposed
additional stay, but instead stated that
‘‘further reconsideration is
unnecessary.’’ We believe this comment
addresses the underlying substance of
the Fugitive Emissions rule, which is
beyond the scope of this action.
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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 issues a stay of the Fugitive
Emissions Rule for 18 months.
However, the Office of Management
and Budget (OMB) 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 [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 final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
This final rule will not impose any new
requirements on small entities. We have
determined that small businesses will
not incur any adverse impacts because
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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.
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 final 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 final 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 stays the
regulations at 40 CFR parts 51 and 52
concerning the inclusion of fugitive
emissions.
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.
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.
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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.’’
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under the Executive
Order.
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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 final rulemaking does not
involve technical standards. Therefore,
EPA is not using 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 final
rule will not have disproportionately
high and adverse human health or
environmental effects on minority and/
or low income populations. This rule
stays 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
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L. The Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A Major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective April 1, 2010.
M. Basis for Making This Rule Effective
on the Date of Publication
Section 553(d) of the Administrative
Procedure Act (APA), 5 U.S.C. 553(b),
generally provides that rules may not
take effect earlier than 30 days after they
are published in the Federal Register.
However, EPA is issuing this final rule
under section 307(d)(1) of the CAA,
which states:
‘‘The provisions of section 553 through 557
* * * of Title 5 shall not, except as expressly
provided in this section, apply to actions to
which this subsection applies.’’
Thus, section 553(d) of the APA does
not apply to this rule. EPA is
nevertheless acting consistently with
the policies underlying APA section
553(d) in making this rule effective on
the date of publication. APA section
553(d)(3) provides an exception when
the agency finds good cause exists for a
period less than 30 days before
effectiveness. We find good cause exists
to make this rule effective upon
publication. A gap between the current
stay that ends on March 31, 2010 and
the effective date of this stay could
result in administrative and regulatory
confusion if the stayed provisions came
back into effect, only to be stayed again
a short time later. In order to avoid this
potential gap, this rule is effective upon
publication.
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)).
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16015
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,
Incorporation by reference,
Intergovernmental relation, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides,
Transportation, Volatile organic
compounds.
Dated: March 24, 2010.
Lisa P. Jackson,
Administrator.
For the reasons discussed in the
preamble, the EPA amends 40 CFR parts
51 and 52 as follows:
■
PART 51—[AMENDED]
1. The authority citation for part 51
continues to read as follows:
■
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
7671q.
§ 51.165
[Amended]
2. Effective April 1, 2010, 40 CFR
51.165(a)(1)(v)(G), (a)(1)(vi)(C)(3),
(a)(1)(ix), (a)(1)(xxviii)(B)(2),
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1),
(a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C),
(a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii),
(a)(6)(iv), and (f)(4)(i)(D) are stayed until
October 3, 2011.
3. Effective April 1, 2010 through
October 3, 2011, amend 40 CFR 51.165
to add paragraph (a)(4) to read as
follows:
§ 51.165
Permit requirements.
(a) * * *
(4) Each plan may provide that the
provisions of this paragraph do not
apply to a source or modification that
would be a major stationary source or
major modification only if fugitive
emission to the extent quantifiable are
considered in calculating the potential
to emit of the stationary source or
modification and the source does not
belong to any of the following
categories:
(i) Coal cleaning plants (with thermal
dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
E:\FR\FM\31MRR1.SGM
31MRR1
16016
Federal Register / Vol. 75, No. 61 / Wednesday, March 31, 2010 / Rules and Regulations
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction
plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable
of charging more than 250 tons of refuse
per day;
(ix) Hydrofluoric, sulfuric, or citric
acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing
plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace
process);
(xvi) Primary lead smelters;
(xvii) Fuel conversion plants;
(xviii) Sintering plants;
(xix) Secondary metal production
plants;
(xx) Chemical process plants—The
term chemical processing plant shall not
include ethanol production facilities
that produce ethanol by natural
fermentation included in NAICS codes
325193 or 312140;
(xxi) Fossil-fuel boilers (or
combination thereof) totaling more than
250 million British thermal units per
hour heat input;
(xxii) Petroleum storage and transfer
units with a total storage capacity
exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil fuel-fired steam electric
plants of more than 250 million British
thermal units per hour heat input;
(xxvii) Any other stationary source
category which, as of August 7, 1980, is
being regulated under section 111 or
112 of the Act.
*
*
*
*
*
§ 51.166
[Amended]
4. Effective April 1, 2010, 40 CFR
51.166(a)(7)(iv)(b), (b)(2)(v), (b)(3)(iii)(c),
(b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b),
(b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a),
(b)(47)(iii), (b)(47)(iv), (r)(6)(iii) and
(r)(6)(iv), and (w)(4)(i)(d) are stayed
until March 31, 2010.
■ 5. Effective April 1, 2010 through
October 3, 2011, amend 40 CFR 51.166
to add paragraph (i)(l)(ii) to read as
follows:
erowe on DSK5CLS3C1PROD with RULES
■
§ 51.166 Prevention of significant
deterioration of air quality.
*
*
*
*
*
(i) * * *
(1) * * *
(ii) The source or modification would
be a major stationary source or major
modification only if fugitive emissions,
VerDate Nov<24>2008
14:09 Mar 30, 2010
Jkt 220001
to the extent quantifiable, are
considered in calculating the potential
to emit of the stationary source or
modification and such source does not
belong to any following categories:
(a) Coal cleaning plants (with thermal
dryers);
(b) Kraft pulp mills;
(c) Portland cement plants;
(d) Primary zinc smelters;
(e) Iron and steel mills;
(f) Primary aluminum ore reduction
plants;
(g) Primary copper smelters;
(h) Municipal incinerators capable of
charging more than 250 tons of refuse
per day;
(i) Hydrofluoric, sulfuric, or nitric
acid plants;
(j) Petroleum refineries;
(k) Lime plants;
(l) Phosphate rock processing plants;
(m) Coke oven batteries;
(n) Sulfur recovery plants;
(o) Carbon black plants (furnace
process);
(p) Primary lead smelters;
(q) Fuel conversion plants;
(r) Sintering plants;
(s) Secondary metal production
plants;
(t) Chemical process plants—The term
chemical processing plant shall not
include ethanol production facilities
that produce ethanol by natural
fermentation included in NAICS codes
325193 or 312140;
(u) Fossil-fuel boilers (or combination
thereof) totaling more than 250 million
British thermal units per hour heat
input;
(v) Petroleum storage and transfer
units with a total storage capacity
exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric
plants of more than 250 million British
thermal units per hour heat input;
(aa) Any other stationary source
category which, as of August 7, 1980, is
being regulated under section 111 or
112 of the Act; or
*
*
*
*
*
Appendix S to 40 CFR part 51
[Amended]
Appendix S to Part 51—Emission Offset
Interpretative Ruling
*
*
Fmt 4700
Sfmt 4700
*
*
*
*
*
*
8. The authority citation for part 52
continues to read as follows:
■
6. Effective April 1, 2010, 40 CFR part
51, Appendix S, paragraphs II.A.5(vii),
II.A.6(iii), II.A.9, II.A.24(ii)(b),
II.A.24(ii)(d), II.A.30(i)(a), II.A.30(ii)(a),
II.A.30(iii), II.A.30(iv), IV.I.1(ii), IV.J.3,
IV.J.4, and IV.K.4(i)(d) are stayed until
October 3, 2011.
■ 7. Effective April 1, 2010 through
October 3, 2011, amend Appendix S to
part 51 to add II.F to read as follows:
Frm 00026
*
PART 52—[AMENDED]
■
PO 00000
*
II. * * *
F. Fugitive emission sources. Section IV.A.
of this Ruling shall not apply to a source or
modification that would be a major stationary
source or major modification only if fugitive
emissions, to the extent quantifiable, are
considered in calculating the potential to
emit of the stationary source or modification
and such source does not belong to any
following categories:
(1) Coal cleaning plants (with thermal
dryers);
(2) Kraft pulp mills;
(3) Portland cement plants;
(4) Primary zinc smelters;
(5) Iron and steel mills;
(6) Primary aluminum ore reduction
plants;
(7) Primary copper smelters;
(8) Municipal incinerators capable of
charging more than 250 tons of refuse per
day;
(9) Hydrofluoric, sulfuric, or nitric acid
plants;
(10) Petroleum refineries;
(11) Lime plants;
(12) Phosphate rock processing plants;
(13) Coke oven batteries;
(14) Sulfur recovery plants;
(15) Carbon black plants (furnace process);
(16) Primary lead smelters;
(17) Fuel conversion plants;
(18) Sintering plants;
(19) Secondary metal production plants;
(20) Chemical process plants—The term
chemical processing plant shall not include
ethanol production facilities that produce
ethanol by natural fermentation included in
NAICS codes 325193 or 312140;
(21) Fossil-fuel boilers (or combination
thereof) totaling more than 250 million
British thermal units per hour heat input;
(22) Petroleum storage and transfer units
with a total storage capacity exceeding
300,000 barrels;
(23) Taconite ore processing plants;
(24) Glass fiber processing plants;
(25) Charcoal production plants;
(26) Fossil fuel-fired steam electric plants
of more than 250 million British thermal
units per hour heat input;
(27) Any other stationary source category
which, as of August 7, 1980, is being
regulated under section 111 or 112 of the Act.
Authority: 42 U.S.C. 7401 et seq.
§ 52.21
[Amended]
9. Effective April 1, 2010, 40 CFR
52.21, (a)(2)(iv)(b), (b)(2)(v), (b)(3)(iii)(b),
(b)(3)(iii)(c), (b)(20),(b)(41)(ii)(b),
(b)(41)(ii)(d), (b)(48)(i)(a),(b)(48)(ii)(a),
(b)(48)(iii), (b)(48)(iv), (r)(6)(iii),
(r)(6)(iv), and (aa)(4)(i)(d) are stayed
until October 3, 2011.
■
E:\FR\FM\31MRR1.SGM
31MRR1
Federal Register / Vol. 75, No. 61 / Wednesday, March 31, 2010 / Rules and Regulations
10. Effective April 1, 2010 through
October 3, 2011, amend 40 CFR 52.21 to
add (i)(l)(vii) to read as follows:
■
erowe on DSK5CLS3C1PROD with RULES
[EPA–HQ–OPP–2009–0714; FRL–8816–3]
*
*
*
*
(i) * * *
(1) * * *
(vii) The source or modification
would be a major stationary source or
major modification only if fugitive
emissions, to the extent quantifiable, are
considered in calculating the potential
to emit of the stationary source or
modification and the source does not
belong to any of the following
categories:
(a) Coal cleaning plants (with thermal
dryers);
(b) Kraft pulp mills;
(c) Portland cement plants;
(d) Primary zinc smelters;
(e) Iron and steel mills;
(f) Primary aluminum ore reduction
plants;
(g) Primary copper smelters;
(h) Municipal incinerators capable of
charging more than 250 tons of refuse
per day;
(i) Hydrofluoric, sulfuric, or nitric
acid plants;
(j) Petroleum refineries;
(k) Lime plants;
(l) Phosphate rock processing plants;
(m) Coke oven batteries;
(n) Sulfur recovery plants;
(o) Carbon black plants (furnace
process);
(p) Primary lead smelters;
(q) Fuel conversion plants;
(r) Sintering plants;
(s) Secondary metal production
plants;
(t) Chemical process plants—The term
chemical processing plant shall not
include ethanol production facilities
that produce ethanol by natural
fermentation included in NAICS codes
325193 or 312140;
(u) Fossil-fuel boilers (or combination
thereof) totaling more than 250 million
British thermal units per hour heat
input;
(v) Petroleum storage and transfer
units with a total storage capacity
exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric
plants of more than 250 million British
thermal units per hour heat input;
(aa) Any other stationary source
category which, as of August 7, 1980, is
being regulated under section 111 or
112 of the Act; or
*
*
*
*
*
[FR Doc. 2010–7036 Filed 3–30–10; 8:45 am]
BILLING CODE 6560–50–P
VerDate Nov<24>2008
14:09 Mar 30, 2010
Jkt 220001
Cloquintocet-mexyl; Pesticide
Tolerances
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is amending 40 CFR
180.560 to add a reference to the active
ingredient flucarbazone-sodium (wheat
only) to the tolerance for the inert
ingredient cloquintocet-mexyl (acetic
acid [(5-chloro-8-quinolinyl) oxy]-, 1methylhexyl ester; CAS Reg. No. 99607–
70–2) and its acid metabolite (5-chloro8-quinolinoxyacetic acid) on wheat
forage, wheat grain, wheat hay, and
wheat straw. Arysta LifeScience North
America, LLC requested this tolerance
amendment under the Federal Food,
Drug, and Cosmetic Act (FFDCA).
DATES: This regulation is effective
March 31, 2010. Objections and requests
for hearings must be received on or
before June 1, 2010, and must be filed
in accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2009–0714. All documents in the
docket are listed in the docket index
available at https://www.regulations.gov.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(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 in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Karen Samek, Registration division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001; telephone number:
ADDRESSES:
PO 00000
Frm 00027
Fmt 4700
(703) 347–8825; e-mail address:
samek.karen@epa.gov.
SUPPLEMENTARY INFORMATION:
40 CFR Part 180
§ 52.21 Prevention of significant
deterioration of air quality.
*
ENVIRONMENTAL PROTECTION
AGENCY
16017
Sfmt 4700
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to those engaged in the
following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
This listing is not intended to be
exhaustive, but rather to provide a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
B. How Can I Get Electronic Access to
Other Related Information?
You may access a frequently updated
electronic version of EPA’s tolerance
regulations at 40 CFR part 180 through
the Government Printing Office’s e-CFR
cite at https://www.gpoaccess.gov/ecfr.
C. Can I File an Objection or Hearing
Request?
Under section 408(g) of FFDCA, 21
U.S.C. 346a, any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
objections. You must file your objection
or request a hearing on this regulation
in accordance with the instructions
provided in 40 CFR part 178. To ensure
proper receipt by EPA, you must
identify docket ID number EPA–HQ–
OPP–2009–0714 in the subject line on
the first page of your submission. All
requests must be in writing, and must be
mailed or delivered to the Hearing Clerk
as required by 40 CFR part 178 on or
before June 1, 2010.
In addition to filing an objection or
hearing request with the Hearing Clerk
as described in 40 CFR part 178, please
submit a copy of the filing that does not
contain any CBI for inclusion in the
public docket that is described in
E:\FR\FM\31MRR1.SGM
31MRR1
]]>Agencies
[Federal Register Volume 75, Number 61 (Wednesday, March 31, 2010)]
[Rules and Regulations]
[Pages 16012-16017]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7036]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2004-0014: FRL-9131-9; 2060-AP73]
Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NSR): Inclusion of Fugitive Emissions; Final Rule;
Stay
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this final action, EPA is issuing a stay for 18 months 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 operational 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 3 months; that is, from
December 31, 2009 until March 31, 2010. This action puts 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: The amendments to 40 CFR parts 51 and 52 in this rule are
effective from April 1, 2010 through October 3, 2011. Effective April
1, 2010, the following Code of Federal Regulations sections are
administratively stayed until October 3, 2011: 40 CFR
51.165(a)(1)(v)(G), (a)(1)(vi)(C)(3), (a)(1)(ix), (a)(1)(xxviii)(B)(2),
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1),
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii),
(a)(6)(iv), and (f)(4)(i)(D); 40 CFR 51.166, (a)(7)(iv)(b), (b)(2)(v),
(b)(3)(iii)(c), (b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b),
(b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii),
(b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and (w)(4)(i)(d); 40 CFR part
51, Appendix S, paragraphs II.A.5(vii), II.A.6(iii), II.A.9,
II.A.24(ii)(b), II.A.24(ii)(d), II.A.30(i)(a), II.A.30(ii)(a),
II.A.30(iii), II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and
IV.K.4(i)(d); and 40 CFR 52.21, (a)(2)(iv)(b), (b)(2)(v),
(b)(3)(iii)(b), (b)(3)(iii)(c), (b)(20), (b)(41)(ii)(b),
(b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii),
(b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and (aa)(4)(i)(d).
ADDRESSES: Docket: All documents in the docket are listed in the https://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, 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 https://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
[[Page 16013]]
number (919) 541-5509; or e-mail address: wheeler.carrie@epa.gov.
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.
----------------------------------------------------------------------------------------------------------------
Industry group SIC \a\ NAICS \b\
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
\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. 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 final rule is also be available on the World Wide Web in the
regulations and standards section of our NSR home page located at
https://www.epa.gov/nsr.
C. How is this preamble organized?
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
C. How is this preamble organized?
II. This Action
A. Background
B. Final Rule
C. Comments and Responses
D. Basis for Making This Rule Effective on the Date of
Publication
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)
L. The Congressional Review Act
M. Basis for Making This Rule Effective on the Date of
Publication
IV. Statutory Authority
II. This Action
A. Background
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 CAA. 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
submitted a petition for reconsideration of the December 2008 final
rule as provided for in CAA 307(d)(7)(B).\1\
---------------------------------------------------------------------------
\1\ John Walke, NRDC, EPA-HQ-OAR-2004-0014-0060.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\2\ Lisa Jackson, U.S. EPA, EPA-HQ-OAR-2004-0014-0062.
---------------------------------------------------------------------------
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. 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.
B. Final Rule
In this final rule we are staying the Fugitive Emissions Rule for
18 months. As described above, the same provisions were
administratively stayed for 3 months; however, that stay ended on
December 30, 2009. To avoid a gap between the end of the stay and the
proposed additional stay, an interim final determination was made to
provide an additional stay for 3 months, ending on March 31, 2010. We
believe the 18 month additional stay is needed and will 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. Therefore, we are issuing this stay of the final Fugitive
Emissions Rule in the federal PSD program at 40 CFR 51
[[Page 16014]]
and 52 for 18 months, until October 3, 2011.
C. Comments and Responses
When we proposed this stay on February 11, 2010, we did not take
comment on any substantive issues concerning the inclusion of fugitive
emissions in the NSR program as stated in the Fugitive Emissions Rule.
Comments sought were to be limited to the issue of whether to establish
this additional stay and how long this stay would be. [75 FR 6823 at
6825].
We received three comments on the proposal for this additional stay
of the Fugitive Emissions Rule. The first commenter supported the
additional stay for ``18 months, 24 months, or however long it takes
for the current administration to reverse the rule and return to EPA's
longstanding, lawful, and more protective approach.''
One industry coalition commenter opposed the additional 18 month
stay to ``take substantive action and facilitate resolution of this
significant permit applicability issue.'' Further, the commenter
suggested that any delay ``makes compliance with already complex PSD
and NSR rules just that more difficult.'' No additional detail is
provided regarding the difficulties with compliance for these rules. We
agree with the industry coalition commenter that EPA should take
substantive action to facilitate resolution of this applicability
issue. However, we believe that 18 months is necessary to allow EPA
sufficient time to propose, take public comment on, and issue a final
action concerning the inclusion of fugitive emissions in the federal
PSD program. The commenter does not provide further details to
demonstrate how this stay negatively impacts compliance. In our view,
it is imperative the Fugitive Emissions Rule continue to be stayed
while we undergo the reconsideration process to reduce confusion. If it
is effective during this process and the Rule is ultimately changed, it
would only further complicate compliance with PSD and NSR rules, an
issue of concern for the commenter.
The final commenter did not comment specifically on the proposed
additional stay, but instead stated that ``further reconsideration is
unnecessary.'' We believe this comment addresses the underlying
substance of the Fugitive Emissions rule, which is beyond the scope of
this action.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
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 issues a stay of
the Fugitive Emissions Rule for 18 months.
However, the Office of Management and Budget (OMB) 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 [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 final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
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.
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 final 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 final 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 stays the regulations at 40
CFR parts 51 and 52 concerning the inclusion of fugitive emissions.
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.
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.
[[Page 16015]]
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
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 final rulemaking does not involve technical standards.
Therefore, EPA is not using 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 final rule will not have
disproportionately high and adverse human health or environmental
effects on minority and/or low income populations. This rule stays 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.''
L. The Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective April 1, 2010.
M. Basis for Making This Rule Effective on the Date of Publication
Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C.
553(b), generally provides that rules may not take effect earlier than
30 days after they are published in the Federal Register. However, EPA
is issuing this final rule under section 307(d)(1) of the CAA, which
states:
``The provisions of section 553 through 557 * * * of Title 5
shall not, except as expressly provided in this section, apply to
actions to which this subsection applies.''
Thus, section 553(d) of the APA does not apply to this rule. EPA is
nevertheless acting consistently with the policies underlying APA
section 553(d) in making this rule effective on the date of
publication. APA section 553(d)(3) provides an exception when the
agency finds good cause exists for a period less than 30 days before
effectiveness. We find good cause exists to make this rule effective
upon publication. A gap between the current stay that ends on March 31,
2010 and the effective date of this stay could result in administrative
and regulatory confusion if the stayed provisions came back into
effect, only to be stayed again a short time later. In order to avoid
this potential gap, this rule is effective upon publication.
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
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, Incorporation by reference,
Intergovernmental relation, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Transportation, Volatile organic compounds.
Dated: March 24, 2010.
Lisa P. Jackson,
Administrator.
0
For the reasons discussed in the preamble, the EPA amends 40 CFR parts
51 and 52 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.
Sec. 51.165 [Amended]
2. Effective April 1, 2010, 40 CFR 51.165(a)(1)(v)(G),
(a)(1)(vi)(C)(3), (a)(1)(ix), (a)(1)(xxviii)(B)(2),
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1),
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii),
(a)(6)(iv), and (f)(4)(i)(D) are stayed until October 3, 2011.
3. Effective April 1, 2010 through October 3, 2011, amend 40 CFR
51.165 to add paragraph (a)(4) to read as follows:
Sec. 51.165 Permit requirements.
(a) * * *
(4) Each plan may provide that the provisions of this paragraph do
not apply to a source or modification that would be a major stationary
source or major modification only if fugitive emission to the extent
quantifiable are considered in calculating the potential to emit of the
stationary source or modification and the source does not belong to any
of the following categories:
(i) Coal cleaning plants (with thermal dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
[[Page 16016]]
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable of charging more than 250
tons of refuse per day;
(ix) Hydrofluoric, sulfuric, or citric acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace process);
(xvi) Primary lead smelters;
(xvii) Fuel conversion plants;
(xviii) Sintering plants;
(xix) Secondary metal production plants;
(xx) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;
(xxi) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat input;
(xxii) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;
(xxvii) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
* * * * *
Sec. 51.166 [Amended]
0
4. Effective April 1, 2010, 40 CFR 51.166(a)(7)(iv)(b), (b)(2)(v),
(b)(3)(iii)(c), (b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b),
(b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii),
(b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and (w)(4)(i)(d) are stayed
until March 31, 2010.
0
5. Effective April 1, 2010 through October 3, 2011, amend 40 CFR 51.166
to add paragraph (i)(l)(ii) to read as follows:
Sec. 51.166 Prevention of significant deterioration of air quality.
* * * * *
(i) * * *
(1) * * *
(ii) The source or modification would be a major stationary source
or major modification only if fugitive emissions, to the extent
quantifiable, are considered in calculating the potential to emit of
the stationary source or modification and such source does not belong
to any following categories:
(a) Coal cleaning plants (with thermal dryers);
(b) Kraft pulp mills;
(c) Portland cement plants;
(d) Primary zinc smelters;
(e) Iron and steel mills;
(f) Primary aluminum ore reduction plants;
(g) Primary copper smelters;
(h) Municipal incinerators capable of charging more than 250 tons
of refuse per day;
(i) Hydrofluoric, sulfuric, or nitric acid plants;
(j) Petroleum refineries;
(k) Lime plants;
(l) Phosphate rock processing plants;
(m) Coke oven batteries;
(n) Sulfur recovery plants;
(o) Carbon black plants (furnace process);
(p) Primary lead smelters;
(q) Fuel conversion plants;
(r) Sintering plants;
(s) Secondary metal production plants;
(t) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;
(u) Fossil-fuel boilers (or combination thereof) totaling more than
250 million British thermal units per hour heat input;
(v) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;
(aa) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act; or
* * * * *
Appendix S to 40 CFR part 51 [Amended]
0
6. Effective April 1, 2010, 40 CFR part 51, Appendix S, paragraphs
II.A.5(vii), II.A.6(iii), II.A.9, II.A.24(ii)(b), II.A.24(ii)(d),
II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii), II.A.30(iv), IV.I.1(ii),
IV.J.3, IV.J.4, and IV.K.4(i)(d) are stayed until October 3, 2011.
0
7. Effective April 1, 2010 through October 3, 2011, amend Appendix S to
part 51 to add II.F to read as follows:
Appendix S to Part 51--Emission Offset Interpretative Ruling
* * * * *
II. * * *
F. Fugitive emission sources. Section IV.A. of this Ruling shall
not apply to a source or modification that would be a major
stationary source or major modification only if fugitive emissions,
to the extent quantifiable, are considered in calculating the
potential to emit of the stationary source or modification and such
source does not belong to any following categories:
(1) Coal cleaning plants (with thermal dryers);
(2) Kraft pulp mills;
(3) Portland cement plants;
(4) Primary zinc smelters;
(5) Iron and steel mills;
(6) Primary aluminum ore reduction plants;
(7) Primary copper smelters;
(8) Municipal incinerators capable of charging more than 250
tons of refuse per day;
(9) Hydrofluoric, sulfuric, or nitric acid plants;
(10) Petroleum refineries;
(11) Lime plants;
(12) Phosphate rock processing plants;
(13) Coke oven batteries;
(14) Sulfur recovery plants;
(15) Carbon black plants (furnace process);
(16) Primary lead smelters;
(17) Fuel conversion plants;
(18) Sintering plants;
(19) Secondary metal production plants;
(20) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol
by natural fermentation included in NAICS codes 325193 or 312140;
(21) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat input;
(22) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(23) Taconite ore processing plants;
(24) Glass fiber processing plants;
(25) Charcoal production plants;
(26) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;
(27) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
* * * * *
PART 52--[AMENDED]
0
8. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Sec. 52.21 [Amended]
0
9. Effective April 1, 2010, 40 CFR 52.21, (a)(2)(iv)(b), (b)(2)(v),
(b)(3)(iii)(b), (b)(3)(iii)(c), (b)(20),(b)(41)(ii)(b), (b)(41)(ii)(d),
(b)(48)(i)(a),(b)(48)(ii)(a), (b)(48)(iii), (b)(48)(iv), (r)(6)(iii),
(r)(6)(iv), and (aa)(4)(i)(d) are stayed until October 3, 2011.
[[Page 16017]]
0
10. Effective April 1, 2010 through October 3, 2011, amend 40 CFR 52.21
to add (i)(l)(vii) to read as follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
* * * * *
(i) * * *
(1) * * *
(vii) The source or modification would be a major stationary source
or major modification only if fugitive emissions, to the extent
quantifiable, are considered in calculating the potential to emit of
the stationary source or modification and the source does not belong to
any of the following categories:
(a) Coal cleaning plants (with thermal dryers);
(b) Kraft pulp mills;
(c) Portland cement plants;
(d) Primary zinc smelters;
(e) Iron and steel mills;
(f) Primary aluminum ore reduction plants;
(g) Primary copper smelters;
(h) Municipal incinerators capable of charging more than 250 tons
of refuse per day;
(i) Hydrofluoric, sulfuric, or nitric acid plants;
(j) Petroleum refineries;
(k) Lime plants;
(l) Phosphate rock processing plants;
(m) Coke oven batteries;
(n) Sulfur recovery plants;
(o) Carbon black plants (furnace process);
(p) Primary lead smelters;
(q) Fuel conversion plants;
(r) Sintering plants;
(s) Secondary metal production plants;
(t) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;
(u) Fossil-fuel boilers (or combination thereof) totaling more than
250 million British thermal units per hour heat input;
(v) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;
(aa) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act; or
* * * * *
[FR Doc. 2010-7036 Filed 3-30-10; 8:45 am]
BILLING CODE 6560-50-P
