Federal Register/Vol. 74, No. 182/Tuesday, September 22, 2009/Rules and Regulations

Dated: September 17, 2009.

Michael G. Ensch,

Chief, Operations, Directorate of Civil Works.

[FR Doc. E9-22825 Filed 9-21-09; 8:45 am]

BILLING CODE 3710-92-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2003-0062; FRL-8961-1]

Implementation of the New Source

Review (NSR) Program for Particulate

Matter Less Than 2.5 Micrometers

(PM2 .

5 ); Final Rule To Stay the

Grandfathering Provision for PM2 .

5

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule

SUMMARY: In this final action, EPA is

issuing a stay, for nine months, on the

"grandfathering" provision for

particulate matter less than 2.5

micrometers (PM2.

5) requirements in the

Federal Prevention of Significant

Deterioration (PSD) program. The

grandfathering provision was added to

the Federal PSD regulations on May 16,

2008, as part of the final rule titled,

"Implementation of the New Source

Review (NSR) Program for Particulate

Matter Less Than 2.5 Micrometers

(PM2.

5)." This stay follows an

administrative stay, which was in effect

from June 1, 2009, until September 1,

2009, on the same provision. We believe

this additional stay will provide

sufficient time for EPA to propose, take

public comment on, and issue a final

action concerning the repeal of the

grandfathering provision for PM 2.

5 in the

Federal PSD program.

DATES: Effective September 22, 2009, 40

CFR 52.21(i)(1)(xi) is stayed for a period

of nine months, until June 22, 2010.

ADDRESSES: Docket: All documents in

the docket are listed in the http://

www.regulations.gov index. Although

listed in the index, some information is

not publicly available, e.g., CBI or other

information whose disclosure is

restricted by statute. Certain other

material, such as copyrighted material,

is not placed on the Internet and will be

publicly available only in hard copy

form. Publicly available docket

materials are available either

electronically through http://

www.regulations.gov or in hard copy at

the EPA Docket Center, Public Reading

Room, EPA West, Room 3334, 1301

Constitution Ave., NW., Washington,

DC, 20460. The Public Reading Room is

open from 8:30 a.m. to 4:30 p.m.,

Monday through Friday, excluding legal

holidays. The telephone number for the

Public Reading Room is (202) 566-1742,

and the telephone number for the Air

Docket is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Mr.

Dan deRoeck, Air Quality Policy

Division, (C504-03), U.S.

Environmental Protection Agency,

Research Triangle Park, NC 27711;

telephone number (919) 541-5593; fax

number (919) 541-5509; or e-mail

address: deroeck.dan@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

Entities affected by this final action

are the owners and operators of

proposed new sources and

modifications who submitted a

complete application for a PSD permit

before the July 15, 2008 effective date of

the PM 2.5 NSR Implementation Rule, but

have not yet received their permit to

construct. EPA has estimated that fewer

than 20 proposed sources are covered by

the grandfathering provision that is

being stayed.

Additional entities affected by this

final rule include State and local

reviewing authorities responsible for

issuing the PSD permits to the new and

modified major stationary sources

affected by this rule.

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 available on the World Wide

Web in the regulations and standards

section of our NSR home page located

at http://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

11. 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 May 16, 2008, the EPA ("we")

issued a final rule amending our PSD

and nonattainment NSR regulations to

add requirements for the

preconstruction review of PM 2.

5. 73 FR

28321. The amendments addressed the

major source threshold, significant

emissions rate and offset ratios for

PM 2.5; interpollutant trading for offsets;

and applicability of NSR to PM 2.

5

precursors. The rule also provided for

the transition of the new requirements

for PM 2.

5 in the NSR permitting process.

On February 10, 2009, Earthjustice, on

behalf of the Natural Resources Defense

Council (NRDC) and Sierra Club,

submitted a petition for reconsideration

of four specific provisions of the May

2008 final rule as provided for in Clean

Air Act (CAA) 307(d)(7)(B). 1 The

specific provisions challenged by the

petitioners include: (1) A transition

period for PSD programs in States with

approved PSD rules in their approved

State Implementation Plans (SIPs) to

revise and submit their new PM 2.5

regulations to EPA within three years of

the publication of the final rule. During

the transition period, the rule allows

States to continue using EPA's 1997

surrogate policy by which an analysis

based on PM 10 can be used to meet the

requirements for the otherwise required

PM 2.5; (2) "grandfathering" under the

Federal PSD program for permit

applications submitted before the July

15, 2008, effective date of the new rule,

which allows the PM1 o surrogate policy

to continue to be used as the basis for

approving such permits for PM 2.5; (3) a

transition period, during which time

EPA is re-evaluating its test methods for

condensable particulate matter (CPM)

emissions, whereby States are not

required to account for CPM in the

permitting process; and (4) use of

recommended interpollutant trading

ratios to facilitate the trading of PM 2.

5

precursors emissions reductions for new

1 Paul Cort, Earthjustice, on behalf of the NRDC

and Sierra Club, EPA-HQ-OAR-2003-0062-0281.

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emissions of PM 2.

5 in areas designated "nonattainment" for PM 2.

5.

Under CAA 307(d)(7)(B), the

Administrator may commence a

reconsideration proceeding if the

petitioner raises an objection to a rule

that was impracticable to raise during

the comment period or if the grounds

for the objection arose after the

comment period. In either case, the

objection must be of central relevance to

the outcome of the rule. The

Administrator may stay the

effectiveness of the rule for up to three

months during such reconsideration.

On April 24, 2009, we responded to

the February 10, 2009 petition by letter

indicating that we were convening a

reconsideration proceeding for all four

issues challenged in the petition and

granting a 3-month administrative stay

of one of the provisions-the

grandfathering provision for PM 2.5

contained in the Federal PSD program at

40 CFR 52.21(i)(1)(xi). The letter also

indicated that we would publish a

notice of proposed rulemaking "in the

near future" to propose repealing the

grandfathering provision for PM 2.

5 in the

Federal PSD program, on the grounds

that it was adopted without prior public

notice and is no longer substantially

justified in light of the resolution of

technical issues with respect to PM 2.

5

monitoring, emissions estimation, and

air quality modeling that led to the PM1o

surrogate policy in 1997.

The administrative stay of the

grandfathering provision for PM 2.

5 was

issued and became effective on June 1,

2009. See 74 FR 26098, FR Doc. E9-

12575. As noted above, our authority to

stay a rule or portion thereof solely

under the Administrator's discretion is

limited to three months. When we have

issued similar administrative stays in

the past, it has often been our practice

to also propose an extension of the stay

through a rulemaking process to ensure

that there is little or no gap between the

end of the stay and the completion of

the final action. 2

B. Final Rule

In this final rule we are staying the

grandfathering provision in the Federal

PSD regulations for nine months. As

described above, the same provision

was administratively stayed for 3

months; however, that stay ended on

2 The use of the word "extension" and other

forms of "extend" in discussing the stays that

follow an administrative stay is not intended to

indicate that EPA is extending the administrative

stay beyond the 3-month period authorized by CAA

307(d)(7)(B). The second stay is a separate stay, and

only "extends" the initial administrative stay in the

sense that the second stay adds to the overall time

period during which the provision is stayed.

September 1, 2009. Thus, there is a

slight gap between the lapse of the

administrative stay and the stay being

issued under this final action.

Nevertheless, we believe that the

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 grandfathering provision for

PM 2.

5 that we are proposing to repeal.

Therefore, we are issuing this stay of the

grandfathering provision for PM 2.

5

contained in the Federal PSD program at

40 CFR 52.21(i)(1)(xi) for nine months,

until June 22, 2010.

C. Comments and Responses

When we proposed this stay on July

23, 2009, we did not take comment on

any substantive issues concerning the

repeal of the grandfathering provision

for PM 2.

5 contained in the Federal PSD

program, or on any of the other

provisions subject to the

reconsideration. Comments sought were

to be limited to the issue of whether to

establish this additional stay and how

long this stay should be. 74 FR 36427

at 36429.

We received three comments on the

proposal to establish this further stay on

the grandfathering provision under the

Federal PSD program. Only one of these

comments, from an environmental

organization, explicitly addressed the

proposed stay. This comment supported

the 9-month stay for several reasons.

First, the commenter correctly pointed

out that the exemption was promulgated

in the final rule without undergoing

notice and comment. Second, the

commenter claimed that the

grandfathering provision for PM 2.

5

violates the CAA by waiving a core

requirement of the CAA that assures

source compliance with the national

ambient air quality standards. In this

regard, the commenter claimed that

"There is simply no legal argument that

compliance with the 24-hour PM10

standard * * * represents a

demonstration that the source will not

cause or contribute to a violation of

either the annual or 24-hour PM 2.

5

standards." Finally, the commenter

claimed that the exemption is arbitrary

and capricious. In support of this claim,

the commenter indicated that the

technical issues raised in the 1997

Surrogate Policy memo have been

resolved, and the continued use of a

surrogate "is not in fact an accurate and

reliable substitute for measuring or

showing compliance with the PM 2.

5

standard."

One commenter apparently

misunderstood the proposal to be an

extension of the grandfathering

provision rather than a continuation of

the stay of the provision. Based on this

misunderstanding, the commenter

appeared to support the grandfathering

provision and an extension to it. The

remaining commenter did not comment

specifically on the proposed extension,

but instead called upon EPA to "stop

the proliferation of fine particulate

matter."

We agree with the environmental

organization commenter that the

grandfathering provision for PM 2.

5 was

not proposed for comment in the

November 2005 PM 2.5 Implementation

Rule proposal. This was acknowledged

in the Administrator's April 24 letter

responding to the petitioners. With

regard to this commenter's other

concerns, we plan to issue a separate

Federal Register notice soliciting

comments on issues related to (1) the

repeal of the grandfathering provision

for PM 2.

5 contained in the Federal PSD

program, and (2) ending the PM 10

Surrogate Policy in States with EPAapproved PSD programs in their SIP. In

yet another subsequent notice, we plan

to solicit comment on issues related to

the remaining two provisions of the May

2008 final rule for which the

Administrator granted reconsideration.

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 one provision

within the final PM2.5 NSR

Implementation Rule for 9 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 2060-0033 [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

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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 final rule on small entities, small

entity is defined as: (1) A small business

as defined by the Small Business

Administration's (SBA) regulations at 13

CFR 121.201; (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of this proposed rule on small

entities, I certify that this 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 issue a stay of one amendment

to the regulations at 40 CFR 52.21

concerning the grandfathering provision

that affects fewer than 20 major

stationary sources. 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 stays one

provision of the regulations at 40 CFR

52.21 concerning the grandfathering

provision that affects fewer than 20

sources. 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 one

provision of the regulations at 40 CFR

52.21 concerning the grandfathering

provision for PM 2.

5 that affects fewer

than 20 sources. Thus, EO 13132 does

not apply to this rule.

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 rule stays one

provision of the regulations at 40 CFR

52.21 concerning the grandfathering

provision for PM 2.

5 that affects fewer

than 20 sources.

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.

L 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. The rule

stays one part of the regulations at 40

CFR 52.21 by staying the grandfathering

provision for PM 2.

5. The affected

sources, after further analysis and data

collection, may receive permitted

emissions limits that are equally or

more protective of public health than

would be likely in the absence of this

stay.

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 September 22, 2009.

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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 because doing so alleviates

potential administrative and regulatory

confusion that could arise if the gap

between the administrative stay that

ended on September 1, 2009 and this

stay were 30 days longer.

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 in 40 CFR Part 52

Environmental protection,

Administrative practices and

procedures, Air pollution control,

Intergovernmental relations.

Dated: September 16, 2009.

Lisa P. Jackson,

Administrator.

* For reasons discussed in the

preamble, the EPA amends 40 CFR part

52 as follows:

PART 52-[AMENDED]

m 1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

§ 52.21 [Amended]

* 2. Effective September 22, 2009, in

§ 52.21, paragraph (i)(1)(xi) is stayed

until June 22, 2010.

[FR Doc. E9-22903 Filed 9-21-09; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF HOMELAND

SECURITY

Federal Emergency Management

Agency

44 CFR Part 64

[Docket ID FEMA-2008-0020; Internal

Agency Docket No. FEMA-8095]

Suspension of Community Eligibility

AGENCY: Federal Emergency

Management Agency, DHS.

ACTION: Final rule.

SUMMARY: This rule identifies

communities, where the sale of flood

insurance has been authorized under

the National Flood Insurance Program

(NFIP), that are scheduled for

suspension on the effective dates listed

within this rule because of

noncompliance with the floodplain

management requirements of the

program. If the Federal Emergency

Management Agency (FEMA) receives

documentation that the community has

adopted the required floodplain

management measures prior to the

effective suspension date given in this

rule, the suspension will not occur and

a notice of this will be provided by

publication in the Federal Register on a

subsequent date.

DATES: Effective Dates: The effective

date of each community's scheduled

suspension is the third date ("Susp.")

listed in the third column of the

following tables.

FOR FURTHER INFORMATION CONTACT: If

you want to determine whether a

particular community was suspended

on the suspension date or for further

information, contact David Stearrett,

Mitigation Directorate, Federal

Emergency Management Agency, 500 C

Street, SW., Washington, DC 20472,

(202) 646-2953.

SUPPLEMENTARY INFORMATION: The NFIP

enables property owners to purchase

flood insurance which is generally not

otherwise available. In return,

communities agree to adopt and

administer local floodplain management

aimed at protecting lives and new

construction from future flooding.

Section 1315 of the National Flood

Insurance Act of 1968, as amended, 42

U.S.C. 4022, prohibits flood insurance

coverage as authorized under the NFIP,

42 U.S.C. 4001 et seq.; unless an

appropriate public body adopts

adequate floodplain management

measures with effective enforcement

measures. The communities listed in

this document no longer meet that

statutory requirement for compliance

with program regulations, 44 CFR part

59. Accordingly, the communities will

be suspended on the effective date in

the third column. As of that date, flood

insurance will no longer be available in

the community. However, some of these

communities may adopt and submit the

required documentation of legally

enforceable floodplain management

measures after this rule is published but

prior to the actual suspension date.

These communities will not be

suspended and will continue their

eligibility for the sale of insurance. A

notice withdrawing the suspension of

the communities will be published in

the Federal Register.

In addition, FEMA has identified the

Special Flood Hazard Areas (SFHAs) in

these communities by publishing a

Flood Insurance Rate Map (FIRM). The

date of the FIRM, if one has been

published, is indicated in the fourth

column of the table. No direct Federal

financial assistance (except assistance

pursuant to the Robert T. Stafford

Disaster Relief and Emergency

Assistance Act not in connection with a

flood) may legally be provided for

construction or acquisition of buildings

in identified SFHAs for communities

not participating in the NFIP and

identified for more than a year, on

FEMA's initial flood insurance map of

the community as having flood-prone

areas (section 202(a) of the Flood

Disaster Protection Act of 1973, 42

U.S.C. 4106(a), as amended). This

prohibition against certain types of

Federal assistance becomes effective for

the communities listed on the date

shown in the last column. The

Administrator finds that notice and

public comment under 5 U.S.C. 553(b)

are impracticable and unnecessary

because communities listed in this final

rule have been adequately notified.

Each community receives 6-month,

90-day, and 30-day notification letters

addressed to the Chief Executive Officer

stating that the community will be

suspended unless the required

floodplain management measures are

met prior to the effective suspension

date. Since these notifications were

made, this final rule may take effect

within less than 30 days.

National Environmental Policy Act.

This rule is categorically excluded from

the requirements of 44 CFR part 10,

Environmental Considerations. No

environmental impact assessment has

been prepared.

Regulatory Flexibility Act. The

Administrator has determined that this

rule is exempt from the requirements of

the Regulatory Flexibility Act because

the National Flood Insurance Act of

1968, as amended, 42 U.S.C. 4022,

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