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

Dated: September 17, 2009. Michael G. Ensch, Chief, Operations, Directorate ofCivil 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 (PM 2.

5);Final Rule To Stay the Grandfathering Provision for PM 2.

5
AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule

SUMMARY: In this final action, EPA is issuing a stay, for nine months, onthe "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 onMay 16, 2008, as part ofthe final rule titled, "Implementation ofthe 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. Webelieve this additional stay will provide sufficient time for EPA to propose, take public comment on, and issue a final action concerning the repeal ofthe grandfathering provision for PM2. 5 in the Federal PSD program. DATES: Effective September 22, 2009, 40 CFR 52.21(i)(1)(xi) is stayed for a period ofnine 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.govorin 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 actionapplyto 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 PM2.5 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 andlocal reviewing authorities responsible for issuing the PSD permits to the new and modified major stationary sources affected by this rule.

B. WherecanIgetacopy ofthis documentandotherrelated information?

In addition to being available in the docket, an electronic copy ofthis 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.Howis thispreambleorganized?

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 ofPublication 11. Statutory andExecutive 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 FromEnvironmental 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 ofPublication 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 ofPM2. 5. 73 FR 28321. The amendments addressed the major source threshold, significant emissions rate and offset ratios for PM2.5;interpollutant trading for offsets; and applicability ofNSR to PM2. 5 precursors. The rule also provided for the transition ofthe new requirements for PM2. 5 in the NSR permitting process. On February 10, 2009, Earthjustice, on behalfofthe Natural Resources Defense Council (NRDC) and Sierra Club, submitted apetition for reconsideration of four specific provisions ofthe 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 PM2.5 regulations to EPA within three years of the publication ofthe final rule. During the transition period, the rule allows States to continue using EPA's 1997 surrogate policy by which an analysis based onPM 10 canbe usedto meet the requirements for the otherwise required PM2.5; (2) "grandfathering" under the Federal PSD program for permit applications submitted before the July 15, 2008, effective date ofthe new rule, which allows the PM1osurrogate policy
to continue tobe used as the basis for approving such permits for PM2.5; (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 inthe permitting process; and (4) use of recommended interpollutant trading ratios to facilitate the trading ofPM 2.5 precursors emissions reductions for new

1 Paul Cort, Earthjustice, on behalfofthe NRDC and Sierra Club, EPA-HQ-OAR-2003-0062-0281. 48153

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emissions ofPM2. 5 in areas designated "nonattainment" for PM2. 5. Under CAA 307(d)(7)(B), the Administrator may commence a reconsideration proceeding ifthe petitioner raises an objection to a rule that was impracticable to raise during the comment period or ifthe grounds for the objection arose after the
comment period. In either case, the objection mustbe ofcentral relevance to the outcome ofthe rule. The Administrator may stay the effectiveness ofthe rule for up to three months during such reconsideration.

On April 24, 2009, we responded to the February 10, 2009 petitionby 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 ofthe provisions-the grandfathering provision for PM2.5 contained in the Federal PSDprogram at 40 CFR 52.21(i)(1)(xi). The letter also indicated that we would publish a notice ofproposed rulemaking "in the

near future" to propose repealing the grandfathering provision for PM2. 5 in the Federal PSD program, on the grounds that itwas adopted without prior public notice and is no longer substantially justified in light ofthe resolution of technical issues with respect to PM2. 5 monitoring, emissions estimation, and air quality modeling thatled to the PM1o surrogate policy in 1997.

The administrative stay ofthe grandfathering provision for PM2. 5 was issued and became effective on June 1, 2009. See 74 FR 26098, FRDoc. 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, ithas often been our practice
to also propose an extension ofthe stay through a rulemaking process to ensure that there is little or no gap between the end ofthe 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 ofthe 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 thatthe 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 ofthe 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 PM2. 5 that we are proposing to repeal. Therefore, we are issuing this stay ofthe grandfathering provision for PM2. 5 contained in the Federal PSD program at 40 CFR 52.21(i)(1)(xi) for nine months, until June 22, 2010.
C. CommentsandResponses

When we proposed this stay onJuly 23, 2009, we did not take comment on any substantive issues concerning the repeal ofthe grandfathering provision for PM2. 5 contained in the Federal PSD program, or on any ofthe other provisions subject to the reconsideration. Comments sought were to be limited to the issue ofwhether to establish this additional stay and how long this stay shouldbe. 74FR 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 ofthese 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 PM2. 5 violates the CAA by waiving a core requirement ofthe 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 PM2. 5 standards." Finally, the commenter claimed that the exemption is arbitrary and capricious. In support ofthis claim, the commenter indicated that the technical issues raised in the 1997 Surrogate Policy memo have been resolved, and the continued use ofa surrogate "is not in fact an accurate and reliable substitute formeasuring or showing compliance with the PM2. 5 standard."

One commenter apparently misunderstood the proposal tobe an extension ofthe grandfathering provision rather than a continuation of the stay ofthe 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 PM2. 5 was not proposed for comment in the November 2005 PM2.5 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 ofthe grandfathering provision for PM2. 5 contained in the Federal PSD program, and (2) ending the PM10 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 ofthe May 2008 final rule for which the Administrator granted reconsideration.

III. Statutory and Executive Order Reviews A. Executive Order12866:Regulatory Planning andReview
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 underthe Executive Order.

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.Burden is defined at 5 CFR 1320.3(b). This action only issues a stay ofone 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 inthe existing regulations under the provisions ofthe PaperworkReductionAct,44 U.S.C. 3501 etseq.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.RegulatoryFlexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare 

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aregulatory flexibility analysis ofany 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 asubstantial number ofsmall entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes ofassessing the impacts ofthis 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 ofless 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 ofthisproposed rule on small entities, Icertify that this rule will not impose any new requirements on small entities. We have determined that small businesses will notincur 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. UnfundedMandatesReformAct

This action does not contain a Federal mandate under the provisions ofTitle II ofthe Unfunded Mandates Reform Act of1995 (UMRA), 2U.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 ofthe 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 ofsections 202 or 205 ofthe Unfunded Mandates Reform Act (UMRA).

This final rule is also not subject to the requirements ofsection 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
E.Executive Order13132:Federalism

This final rule does not have federalism implications. Itwill not have substantial direct effects on the States,

on the relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in EO 13132. This action only stays one provision ofthe regulations at40 CFR 52.21 concerning the grandfathering provision for PM2. 5 that affects fewer than 20 sources. Thus, EO 13132 does
not apply to this rule.

F.Executive Order13175:Consultation andCoordinationWithIndian 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 Order13045:Protectionof ChildrenFromEnvironmentalHealth andSafetyRisks

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 ofthe regulations at40 CFR 52.21 concerning the grandfathering provision for PM2. 5 that affects fewer than 20 sources.
H. Executive Order13211:Actions Concerning RegulationsThat Significantly Affect EnergySupply, 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 NationalTechnologyTransferand AdvancementAct

Section 12(d) ofthe National Technology Transfer and Advancement Act of1995 ("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, andbusiness practices) that are developed or adopted byvoluntary 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 Order12898:Federal Actions To AddressEnvironmental Justicein MinorityPopulations 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 oftheir mission by identifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheirprograms, 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/

orlow income populations. The rule stays one part ofthe regulations at 40 CFR 52.21 by staying the grandfathering provision for PM2. 5. The affected
sources, after further analysis and data collection, may receive permitted emissions limits that are equally or

more protective ofpublic health than would be likely in the absence ofthis stay.

K.DeterminationUnderSection 307(d)

Pursuant to sections 307(d)(1)(J) and 307(d)(1)(V) ofthe 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 ofsection 307(d) apply to "such other actions as the Administrator may determine."

L. The Congressional ReviewAct

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rule may take effect, the agency promulgating the rulemust submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A majorrule
cannot take effect until 60 days after it is published in the Federal Register. This action is not a "major rule" as defined by 5U.S.C. 804(2). This rule will be effective September 22, 2009. 

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M.BasisforMakingThis RuleEffective

on theDateofPublication

Section 553(d) ofthe Administrative Procedure Act (APA), 5U.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) ofthe CAA, which states:

The provisions ofsection 553 through 557 * * * ofTitle 5 shall not, except as expressly provided inthis section, apply to actions to which this subsection applies.
Thus, section 553(d) ofthe 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 ofpublication. 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 ifthe 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) ofthe CAA

as amended (42 U.S.C. 7601(a)). This notice is also subject to section 307(d) ofthe CAA (42 U.S.C. 7407(d)).

List of Subjects in40 CFRPart52

Environmental protection, Administrative practices and procedures, Air pollution control, Intergovernmental relations.

Dated: September 16, 2009. Lisa P.Jackson, Administrator.

* Forreasons discussed inthe preamble, the EPA amends 40 CFR part 52 as follows:

PART 52-[AMENDED]

m 1. The authority citation for part52 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 IDFEMA-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 offlood 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 ofthe program. Ifthe 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 ofthis willbe provided by publication in the FederalRegister on a subsequent date. DATES: EffectiveDates:The effective date of each community's scheduled suspension is the third date ("Susp.") listed in the third column ofthe following tables.
FOR FURTHER INFORMATION CONTACT: If you want to determine whether a particular community was suspended

on the suspension date orfor 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 ofthe 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 etseq.; unless an appropriate publicbody 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 ofthat date, flood insurance will no longer be available in the community. However, some ofthese communities may adopt and submit the required documentation oflegally enforceable floodplain management

measures after this rule is publishedbut prior to the actual suspension date. These communities will notbe suspended and will continue their eligibility for the sale ofinsurance. 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 ofthe FIRM, ifone has been published, is indicated in the fourth column ofthe table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Reliefand Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition ofbuildings in identified SFHAs for communities
not participating in the NFIP and identified for more than ayear, on FEMA's initial flood insurance map of the community as having flood-prone

areas (section 202(a) ofthe 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 5U.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 ChiefExecutive 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.

NationalEnvironmentalPolicy Act. This rule is categorically excluded from the requirements of44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

RegulatoryFlexibility 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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