1 6560 - 50 - P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 51 and 52 [EPA - HQ - OAR - 200 4 - 00 14 : FRL - ]

RIN 2060 - AP73 Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR ) : Inclusion of Fugitive Emissions ;

Interim F inal R

ule; S tay AGENCY : Environmental Protection Agency (EPA). ACTION : Interim final rule; stay . SUMMARY : EPA is making an interim final determination to provide an additional stay of the regulations concerning the inclusion of fugitive emissions . DATES: This interim final determination is effective on December 31, 2009, and will expire on March 31, 2010. ADDRESSES : EPA has established a docket for this action under D ocket ID No. EPA
- HQ - OAR - 200 4
- 0 014 . All documents in the docket are listed in the Federal Dock et Management System index at http://www.regulations.gov . Al th ough listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure i s 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 through2

http://www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA West Building, 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 throu gh Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566
- 1744, and the telephone number for the Air and Radiation Docket is (202) 566
- 1742. FOR FURTHER INFORMATION CONTACT : Ms. Carrie Wheeler , Air Quality Policy D ivision, (C504
- 03) , U.S. Environmental Protection Agency, Research Triangle Park, NC, 27711 ; telephone number ( 919 ) 5 41
- 9771 ; fax number (919) 541
- 5509; or e - mail address: wheeler.carrie@epa.gov . SUPPLEMENTAR Y INFORMATION: Regulated entities . Entities potentially affected by this action include sources in all industry groups. The majority of sources potentially affected a r e expected to be in the following groups. Industry Group SIC a NAICS b Electric Servi ces 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 286 325110, 325132, 325192,3

Chemicals 32 5188, 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 this action also include state, local, and tribal governments. World Wide Web . In addition to bei ng available in the docket, an electronic copy of this final rule will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this final rule will be posted in the regulations and standards section of our New Sour ce Review ( NSR ) home page located at http://www.epa.gov/nsr .4

Organization of this Document . The following outline is provided to aid in locating information in this preamble. I. Background Information II. What acti on is EPA taking? I II . Statutory and Executive Order Review s 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. Ex ecutive 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 Affe ct 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. Congressional Review Act IV. St atutory Authority I . Background Information On December 19 , 2008 , the EPA (“we”) issued a final rule revising our r equirements of the major NSR programs regarding the treatment of fugitive emissions (“Fugitive Emissions Rule”). 73 FR 77882 . The final ru le 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 Clean Air Act (CAA ) . The final rule amended all portions of the major NSR program regulations: permit requirements, the PSD program, and the emission offset5

interpretive ruling. On February 17 , 2009, the Natural Resources Defense Council submitted a petition for reconside ration 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 emission s challenged in the petition and granting a 3
- month administrative stay of the rule contained in the federal Prevention of Significant Deterioration ( PSD ) p rogram at 40 CFR Parts 51 and 52 . The letter also indicated that we would publish a notice of propo sed 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 a bove, 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. II. What action is EPA taking? We are making an interim final determination to provide an additional sta y for 3 months . The 3
- month stay that began on September 30, 2009 expires on December 30, 2009. At that time, facilities will be required to comply with the final rule as

1 John Walke , NRDC, EPA - HQ - OAR - 2004
- 0014
- 0060 . 2 Lisa Jackson, US EPA, EPA
- HQ - OAR - 2004
- 0014
- 00626

published [ 73 FR 77882 ] unless an additional stay is set in place. EPA intends to p ublish a notice in the near future that will propose an additional stay of the Fugitive Emissions during the time period while EPA reconsiders the rule. Since that proposed rule has not yet published, any resulting final action that EPA takes will likely occur after December 30, 2009. EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity to comment before this action takes effect (5 U.S.C. 553(b) ( 3)). EPA believes that notice
- and
- comment rul emaking before the effective date of this action is impracticable and contrary to the public interest. EPA has stated in the re c on s i d eration and stay notices ( 74 FR 188 ) the reason for granting the 3
- month stay. As th is reason remain s valid, we believe it is still appropriate for a stay to be in effect until we have reached a final decision on the reconsideration. T he in i tial stay expires on December 30, 2009 , and EPA does not believe it can complete notice and comment rulemaking to provide an additional stay before that date. I t is not in the public’s best interest to require compliance with the rules as published during the gap between the two dates. Therefore, EPA believes that it is necessary to use the interim final rulemaking process to provide
an additional stay while the public has an opportunity to
c o mment on the upcoming proposed action. EPA anticipates completing that action by March 31, 2010.7

I II . Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Re view Under Executive Order 12866 (58 FR 51735, October 4, 1993), 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 r e view un der 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 provides an additional stay of the regulations at 40 CFR parts 51 and 52 concerning the inclusion of fugitive emissions. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing reg ulations under the provisions of the Paperwork Reduction Act , 44 U.S.C. 3501 et seq . , and has assigned OMB control number 2060
- 000 3. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9 . C. Regulatory Flexibility Act This interim final rule is not subject to t he Regulatory Flexibility Act (RFA) , which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will8

have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA or any other statute. This rule is not subject to notice and comment requirements under the APA or any other statute because, although the rule is subje ct t o the APA, the Agency has invoked the “good cause” exemption under 5 U.S.C. 553(b); therefore, it is not subject to the notice and comment requirement. 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. This action only provides for 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 UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory require ments that might significantly or uniquely affect small governments. This action only provides an additional stay of the regulations at 40 CFR parts 51 and 52 concerning the inclusion of fugitive emissions and does not impose any additional enforceable du ty.9

E. Executive Order 13132 : Federalism This action 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 an d responsibilities among the various levels of government, as specified in EO 13132. This action only provides an additional s tay of the regulations at 40 CFR parts 51 and 52 concerning the inclusion of fugitive emissions . 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 Executive Order 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 Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because t his action only provides an additional stay of t he regulations at 40 CFR parts 51 and 5210

concerning the inclusion of fugitive emissions . H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribu tion, or Use This action is not a “significant energy action” as defined in E xecutive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. T his action only p rovides an additional stay of the regulations at 40 CFR parts 51 and 52 concerning the inclusion of fugitive emissions . I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“N TTAA”), Public Law No. 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 t echnical 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 action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.11

J. Executive Order 12898: Federal Actio ns to Address Environmental Justice in Minority Populations and Low
- Income Populations E xecu t ive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the gr eatest 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

ac tivities on minority populations and low
- income populations in the United States. EPA has determined that this action will not have a disproportionately high and adverse human health or environmental effects on minority o r low income populations because it only provides an additional stay of the regulations at 40 CFR parts 51 and 52 concerning the inclusion of fugitive emissions . K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enf orcement Fairness Act of 1996, generally provides t hat 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 Congress12

and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. Th is determination must be supported by a brief statement, 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of December 31, 2009. EPA will submit a report contai ning this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major ru le” as defined by 5 U.S.C. 804(2). 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)).13

Page 1 3 of 23 - Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Inclusion of Fugitive Emissions; Proposal to Extend Administrative Stay List of Subjects 40 CFR P art 51 Administrative practices and procedures, Air pollution

con trol, Carbon Monoxide, Fugitive Emissions, Intergovernmental rel ation, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Transportation, Volatile Organic compounds. 40 CFR P art 52 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.

_______________________________ Dated:

_________ ______________________ Lisa P. Jackson, Administrator.14

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 December 31, 2009 , 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 March 31, 2010 . 3. Effective December 31, 2009 through March 31, 2010 , 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 emi t of the stationary source or modification and the source does not belong to any of the following categories:15

(i) Coal cleaning plants (with thermal dryers); (ii) Kraft pulp mills; (iii) Portland cement plants; (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;16

(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 exceedi ng 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 December 31, 2009 , 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 December 31, 2009 through March 31, 2010 , amend 40 CFR 51.166 to add paragraph (i)(l)(ii) to read as follows: § 51.166 Prevention of significant deterioration of air quality . * * * * * (i)***17

(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 ) Kra ft 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 ton s 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 plant s (furnace process); ( p ) Primary lead smelters; ( q ) Fuel conversion plants;18

( r ) Sintering plants; ( s ) Secondary metal production plants; ( t ) Chemical process plants
-- The term chemical processing plant shall not include ethanol productio n 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 mil lion 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] 6. Effective December 31 , 2009 , 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),19

II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)( d ) are stayed until March 31, 2010 . 7. Effective December 31, 2009 through March 31, 2010 , 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 o r 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;20

(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 plant s; (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 processi ng 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;21

(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] 8. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. §52.21 [Amended] 9. Effective December 31, 2009 , 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 March 31, 2010 . 10 . Effective December 31, 2009 through March 31, 2010 , amend 40 CFR 52.21 to add (i)(l)(vii) to read as follows: § 52.21 Prevention of significant deterioration of air quality . * * * * * (i) *** (1) *** (vii) The source or modification would be a major sta tionary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential22

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 c hemical processing plant shall not include ethanol production facilities that23

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 ther mal 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 * * * * *