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Citation: 72 Fed. Reg. 32526 2007

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### 32526 Federal Register/Vol. 72, No. 113/Wednesday, June 13, 2007/Rules and Regulations

PortLake Michigan will cause notice of enforcement ofthe safety zone established by this section tobe made by all appropriate means to the affected segments ofthe public including publication in the Federal Register as practicable, in accordance with 33 CFR 165.7(a). Such means ofnotification
may also include, but are not limited to Broadcast Notice toMariners 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 inparagraph (b) ofthis section

are exempt from the requirements in this section.

(f) Wavier.For any vessel, the Captain ofthe Port Lake Michigan or a designated representative may waive any ofthe requirements of this section, upon findingthat operational conditions or other circumstances are such that application ofthis section is unnecessary or impractical for the purposes of safety or environmental safety.

Dated: June 6,2007. Bruce C.Jones, Captain,U.S. CoastGuard,Captainofthe Port LakeMichigan. [FRDoc. E7-11343 Filed 6-12-07; 8:45 am]

BILUNG 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 ofSignificant Deterioration (PSD) and Nonattainment New Source Review (NSR): Removal of Vacated Elements
AGENCY: Environmental Protection Agency (EPA). ACTION: Finalrule.

SUMMARY: The EPA is amending its regulations to eliminate the pollution control project (PCP) and clean unit (CU) provisions included inits December 31, 2002 rulemaking entitled "Prevention ofSignificant Deterioration (PSD) and Nonattainnent 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 ofAppeals forthe D.C. Circuit,New York v.EPA, 413 F.3d 3 (D.C. Cir. 2005), vacating the PCP and CUprovisions. This action is exempt from notice-and-comment rulemaking because itis ministerial in nature. DATES: Thisfinal 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.govWeb site. Although listed inthe 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.govor 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 forthe Air Docket is (202) 566-1742. FOR FURTHER INFORMATION CONTACT: Mr. David Painter, Office ofAir 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:

1.Does ThisRegulation Apply to Me?

Entities potentially affected bythis final action include sources inall industry groups. The majority ofsources potentially affected are expected to be in the following groups.
Industry group SIC

- 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 GasTransport

................................... ............................ 492 48621, 22121. Pulp and Paper Mills

...................................................................... 261 32211, 322121, 322122, 32213. Paper M ills

...................................................................................... 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.

,Standard Industrial Classification
b North American Industry Classification System.

Entities potentially affected bythis final action also include State, local, andtribal governments that are delegated authority to implement these regulations. Thistable is not intended to be exhaustive, but rather provides aguide forreaders regarding entities likely to be affected by this action. Other types ofentities not listed in the table could also be affected. To determine whether your facilitywould be affected by this action, you should carefully examine the applicability criteria in parts 51 and 52 oftitle 40 ofthe Code ofFederal 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). OnJune 24, 2005, the United States Court of Appeals for the District ofColumbia Circuit (the Court) issued an opinion vacating those portions ofthe 2002 and 1992 rules thatpertained 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) allprovisions for CU andPCIlcontaining the provisions vacated bythe Court. It should be noted thatnearly identical CU and PCPprovisions 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 inthose latter provisions; and as a result, today's action removes those provisions as well. Because the Court vacated the language ofthe 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 ofa 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 ofproposed 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 goofd cause finds (andincorporates the finding and abrief statement ofreasons 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 commefit is unnecessary. This action is ministerial in nature. It simply implements the decision ofthe D.C. Circuit as it pertains to CU and PCP.

In addition, notice and comment would be cbntrary to the public interest by unnecessarily delaying the removal ofthe unlawful CU and PCP provisions in the CFR. Owner/operators of facilities capable ofcausing 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 aFederal appeals court. This is

aministerial butnecessary action on the part ofthe EPA. Given the substantial
costs to owner/operators ofprojects associated with delays anduncertainty, 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 ofPCP and CU provisions meant that these provisions could no longer be used. Thus, today's rule changes are immediately effective forjurisdictions 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 orall ofthe 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 I into their approved SIPs, we believe that these portions oftheir SIPs should also be removed in light ofthe Court decision. 2
Because of the Court decision, these provisions are unlawful and may notbe applied even prior to theirremoval from the SIPs.

IV. Statutory andExecutive Order Reviews

The Office ofManagement and Budget (OMB) determined this rule is a significant regulatory action forthe 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 ofChildren 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 ofthe Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4), Executive Order 13132, entitled Federalism (64 FR43255, August 10, 1999), Executive Order

1Memorandum datedJuly 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.

2In 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 ofsomepollutants but cause collateral increases ofothers. The statute authorizes no such exception."' 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), orExecutive 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 ofa regulatory flexibility analysis under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 etseq.).

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. -Theseestimates include the time needed for reviewing instructions, searching existing data sources, gathering andmaintaining the data needed, and completing and reviewing the collection of information.

Pursuant to the Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, EPA will submit areport containing this rule and other required information to the U.S. Senate, the U.S. House'of Representatives, and the Comptroller General ofthe United States prior to publication ofthe 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 ofreasons 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 ofJune 13, 2007. This rule is not a "major rule"

as defined by 5 US.C. 804(2). 

### 32527

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### 32528 Federal Register/Vol. 72, No. 113/Wednesday, June 13, 2007/Rules and Regulations

V. StatutoryAuthority

The statutory authority for this action is provided by sections 165-169, 171- 173, and 301 ofthe Act as amended (42 U.S.C. 7475-7479, 7501-7503, and 7601). This rulemaking is also subject to section 307(d) of theAct (42 U.S.C. 7407(d)).

VI. JudicialReview

Under section 307(b)(1) ofthe Act, judicial review ofthis final rule is available only by the filing ofa petition for review in the U.S. Court ofAppeals for the District of Columbia Circuit by August 13, 2007. Any suchjudicial 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 ofthis finalrule may notbe. challenged later in civil orcriminal proceedings brought by usto enforce these requirements.

List ofSubjects

40 CFRPart 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 CFRPart 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.

mForthe reasons set out inthe .preamble, title 40, chapter I ofthe Code ofFederal Regulations is amended as follows:

PART 51--[AMENDED]

m1.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]

* 2. Section 51.165 is amended as follows: ma. Byremoving andreserving paragraph (a)(1)(v)(C)(8).

n b. Byremoving paragraph (a)(1)(vi)(C)(3).



### m•c. Byremoving paragraph {a){1)vi){E){5).

md.By removing and reserving paragraph (a)(1)(xxv).



### me. Byremoving andreserving paragraph (a)(1)(xxix).


### mf.By removing andreserving paragraph (a)(2)(ii)(E). " g.By revising paragraph (a)(2)(ii)(F).

mh.By removingparagraph (a)(2)(iv).



### mi. By removing andreserving paragraphs (a)(3)(ii)(H) and (I).


### mj.By revisingparagraph (a)(6) introductory text.

mk. Byremoving and reserving paragraphs (c), (d), and (e). §51.165 Permit requirements.

(a) * * * (2) * * * 

### (ii) * * * (F)Hybridtest for projectsthat involve multipletypes ofemissions units.A significant emissions increase ofa regulated NSR pollutant is projected to occur ifthe sum of the emissions increases for each emissions unit, using the method .specified inparagraphs (a)(2)(ii)(C) through (D)ofthis section as applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant amount for thatpollutant (as defined in paragraph (a)(1)(x) ofthis section).

* * * * *

(6) Each plan shall provide thatthe following specific provisions apply to projects at existing emissions units at a major stationary source (other than projects at a source with aPAL) in circumstances where there is a reasonable possibility that a project that is nota part ofa major mpdification may result in a significant emissions increase and the owner or operator elects to use the method specified inparagraphs (a)(1)(xviii)(B)Cl) through (3)ofthis section for calculating projected actual emissions. Deviations from these provisions will be approved only ifthe 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.

* * * * *



### m3. Section 51.166 is amended as follows:

ma. By removing and reserving paragraph (a)(7)(iv)(e).

mb. Byrevising paragraph (a)(7)(iv)(f).



### mc. By removingparagraph (a)(7)(vi). Wd. Byremoving andreserving paragraph (b)(2)(iii)(h). " f.Byremoving paragraph (b)(3)(vi)(d).

mg. Byremoving and reserving paragraph (b)(31).

mh. Byremoving andreserving paragraph (b)(41).


### mi. Byrevising paragraph (r)(6) introductory text.


### m

j.Byremoving andreserving paragraphs (t), (u), and (v).
§51.166 Prevention ofsignificant deterioration ofair quality.



### (a) * * *
(7) * * * (iv) * * * 

### (f)

Hybridtest forprojectsthatinvolve multipletypes ofemissions units.A significant emissions increase ofa regulated NSRpollutant is projected to

occur ifthe sum ofthe emissions increases for each emissions unit, using the method specified in paragraphs (a)(7)(iv)(c) through (d)ofthis section as applicable with respect to each emissions unit, for each type of emissions unit equals orexceeds the significant amount forthat pollutant (as defined in paragraph (b)(23) ofthis section).

* * * *

(r) * * * (6) Each plan shall provide that the following specificprovisions apply to projects at existing emissions units at a major stationary source (otherthan projects at a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part ofamajor modification may result in a significant emissions increase and the owner or operator elects'to use the method specified inparagraphs (b)(40)(ii)(a) through (c) ofthis section for calculating projected actual emissions. Deviations from these provisions willbe approved only ifthe State specifically demonstrates that the submitted provisions are more stringent than orat least as stringent in all respects as the corresponding provisions in paragraphs (r)(6)(i) through (v) ofthis section.

* * * * *

PART 52--[AMENDED]



### m4.The authority citation forpart 52 continues to read as follows:

Authority: 42U.S.C. 7401, et seq. Subpart A--fAmended]

M5. Section 52.21 isamended as follows: M

a. Byremoving and reserving paragraph (a)(2)(iv)(e). 

### M

b. By revisingparagraph (a)(2)(iv)(f).

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### " c. Byremoving paragraph (a)(2)(vi). * d. Byremoving andreserving paragraph (b)(2)(iii)(h).


### me. Byremoving paragraph (b)(3)(vi)(d). " f.By removing and reserving paragraph (b)(32).

mg. Byremoving andreserving paragraph (b)(42).

mh. Byrevising paragraph (r)(6) introductory text.

m

j.Byremoving andreserving paragraphs (x), (y), and (z)
§52.21 Prevention of significant deterioration ofair quality.



### (a) * * * (2) * * * 

### (iv) * * * 

### (J) Hybridtest forprojectsthatinvolve multipletypesofemissionsunits.A significant emissions increase of a regulated NSR pollutant is projected to

occur ifthe sum ofthe emissions increases for each emissions unit, using the method specified in paragraphs (a)(2)(iv)(c) through (d) ofthis 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) ofthis section).

• * * * *

(r) * * * (6) The provisions of this paragraph (r)(6) apply to projects at an existing emissions unit ata major stationary

source (otherthan projects at a source with aPAL) in circumstances where there is areasonable possibility that a project that is not a part of amajok 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)ofthis section for calculating projected actual emissions.

• * * * * [FRDoc. E7-11289 Filed 6-12-07; 8:45 am]

BILLING CODE 6560-60-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [EPA-R09-OAR-2006-0590; FRL-8325-8]
Approval and Promulgation of Implementation Plans; Revisions tothe Nevada State Implementation Plan; Request for Rescission
AGENCY: Environmental-Protection Agency (EPA). ACTION: Finalrule.

SUMMARY: EPA is finalizing the rescission ofthe Federal implementation plan promulgated under the Clean Air Act for the regulation offugitive sulfur oxides emissions from a copper smelter that had operated inthe State ofNevada 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-RO9-OAR-2006-0590 for this action. The index to the docket is available electronically at http:// regulations.govand in hard capy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents inthe docket are listed in the index, some information may be publicly available only atthe hard copy location (e.g., copyrighted material), and

some may notbe 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 LX, (415) 947- 4126, rose.julie@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer toEPA.
Table ofContents I.Proposed Action II.PublicComments andEPA's Response Ill. EPA Action IV. Statutory and Executive Order Reviews

I. Proposed Action

On August 28, 2006 (71 FR 50875), EPA proposed approval and disapproval ofportions ofthe State's rescission request and approval of certain replacement provisions. One ofthe rescission requests forwhich we proposed approval involved aFederal 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 thatthe last vestige ofthe 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 proposed action on August 28, 2006. This is the second final action related to

our August 28, 2006proposal. We will take final action on the remaining few provisions forwhich we proposed action onAugust 28, 2006 in a third separate action.
II. Public Comments and EPA Responses

EPA'sproposed action provided a 30- day public comment period. During this period, we received no comments related to the proposed rescission ofthe FIP for regulation ofthe Kennecott Copper Company smelter in White Pine County, Nevada.
IL EPA Action

As authorized in section 110(k)(3) of the Clean Air Act, EPA is finalizing the approval ofthe rescission ofthe 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 thatis

no longer in existence. EPA is codifying this action by revising 40 CFR 52.1475
toremove paragraphs (c), (d), and (e).

IV. Statutoryand Executive Order Reviews

A. Executive Order12866,Regulatory Planning andReview
The Office ofManagement and Budget (OMB) has exempted this regulatory action fromExecutive 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 ReductionAct
This action does not impose an information collection burden under the. provisions ofthe Paperwork Reduction Act, 44 U.S.C. 3501 etseq.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 bypersons 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 forthe 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; trainpersonnel to be able
to respond to acollection of information; search data sources;

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