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

Port Lake Michigan will cause notice of

enforcement of the safety zone

established by this section to be made

by all appropriate means to the affected

segments of the public including

publication in the Federal Register as

practicable, in accordance with 33 CFR

165.7(a). Such means of notification

may also include, but are not limited to

Broadcast Notice to Mariners 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 in paragraph (b) of this section

are exempt from the requirements in

this section.

(f) Wavier. For any vessel, the Captain

of the Port Lake Michigan or a

designated representative may waive

any of the requirements of this section,

upon finding that operational

conditions or other circumstances are

such that application of this section is

unnecessary or impractical for the

purposes of safety or environmental

safety.

Dated: June 6, 2007.

Bruce C. Jones,

Captain, U.S. Coast Guard, Captain of the

Port Lake Michigan.

[FR Doc. 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 of Significant Deterioration

(PSD) and Nonattainment New Source

Review (NSR): Removal of Vacated

Elements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is amending its

regulations to eliminate the pollution

control project (PCP) and clean unit

(CU) provisions included in its

December 31, 2002 rulemaking entitled

"Prevention of Significant 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 of Appeals for the D.C.

Circuit, New York v. EPA, 413 F.3d 3

(D.C. Cir. 2005), vacating the PCP and

CU provisions. This action is exempt

from notice-and-comment rulemaking

because it is ministerial in nature.

DATES: This final 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.gov Web site.

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

www.regulations.gov or 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 for the Air

Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr.

David Painter, Office of Air 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 This Regulation Apply to Me?

Entities potentially affected by this

final action include sources in all

industry groups. The majority of sources

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 Gas Transport ................................... ............................ 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 by this

final action also include State, local,

and tribal governments that are

delegated authority to implement these

regulations. This table is not intended to

be exhaustive, but rather provides aguide for readers regarding entities

likely to be affected by this action. Other

types of entities not listed in the table

could also be affected. To determine

whether your facility would be affected

by this action, you should carefully

examine the applicability criteria in

parts 51 and 52 of title 40 of the Code

of Federal 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). On June 24,

2005, the United States Court of

Appeals for the District of Columbia

Circuit (the Court) issued an opinion

vacating those portions of the 2002 and

1992 rules that pertained 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) all provisions

for CU and PCIlcontaining the

provisions vacated by the Court. It

should be noted that nearly identical CU

and PCP provisions are found in 40 CFR

52.21, 51.165, and 51.166, and that the
Federal Register/Vol. 72, No. 113/Wednesday, June 13, 2007 /Rules. and. Regulations

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 in those latter

provisions; and as a result, today's

action removes those provisions as well.

Because the Court vacated the language

of the 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 of a 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 of proposed 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 (and incorporates the

finding and a brief statement of reasons

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 of the

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

of the unlawful CU and PCP provisions

in the CFR. Owner/operators of facilities

capable of causing 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 a Federal appeals court. This is

a ministerial but necessary action on the

part of the EPA. Given the substantial

costs to owner/operators of projects

associated with delays and uncertainty,

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 of PCP and CU

provisions meant that these provisions

could no longer be used. Thus, today's

rule changes are immediately effective

for jurisdictions 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 or all of the 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 of their SIPs should also be

removed in light of the Court decision. 2

Because of the Court decision, these

provisions are unlawful and may not be

applied even prior to their removal from

the SIPs.

IV. Statutory and Executive Order

Reviews

The Office of Management and Budget

(OMB) determined this rule is a

significant regulatory action for the

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 of Children 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 of the Unfunded

Mandates Reform Act of 1995 (UMRA)

(Pub. L. 104-4), Executive Order 13132,

entitled Federalism (64 FR 43255,

August 10, 1999), Executive Order

1 Memorandum dated July 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. 2 In 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 of some pollutants but cause collateral

increases of others. 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), or Executive 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 of a

regulatory flexibility analysis under the

Regulatory Flexibility Act (RFA) (5

U.S.C. 601 et seq.).

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.

-These estimates include the time

needed for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information.

Pursuant to the Congressional Review

Act, 5 U.S.C. 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996, 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. 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 of reasons 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 of June

13, 2007. This rule is not a "major rule"

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

32527
32528 Federal Register/Vol. 72, No. 113/Wednesday, June 13, 2007/Rules and Regulations

V. Statutory Authority

The statutory authority for this action

is provided by sections 165-169, 171-

173, and 301 of the Act as amended (42

U.S.C. 7475-7479, 7501-7503, and

7601). This rulemaking is also subject to

section 307(d) of the Act (42 U.S.C.

7407(d)).

VI. Judicial Review

Under section 307(b)(1) of the Act,

judicial review of this final rule is

available only by the filing of a petition

for review in the U.S. Court of Appeals

for the District of Columbia Circuit by

August 13, 2007. Any such judicial

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 of this final rule may not be.

challenged later in civil or criminal

proceedings brought by us to enforce

these requirements.

List of Subjects

40 CFR Part 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 CFR Part 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.

m For the reasons set out in the

.preamble, title 40, chapter I of the Code

of Federal Regulations is amended as

follows:

PART 51--[AMENDED]

m 1. 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:

m a. By removing and reserving

paragraph (a)(1)(v)(C)(8).

n b. By removing paragraph (a)(1)(vi)(C)(3).

m•c. By removing paragraph {a){1)vi){E){5).

m d. By removing and reserving

paragraph (a)(1)(xxv).

m e. By removing and reserving

paragraph (a)(1)(xxix).

m f. By removing and reserving

paragraph (a)(2)(ii)(E).

" g. By revising paragraph (a)(2)(ii)(F).

m h. By removing paragraph (a)(2)(iv).

m i. By removing and reserving

paragraphs (a)(3)(ii)(H) and (I).

m j. By revising paragraph (a)(6)

introductory text.

m k. By removing and reserving

paragraphs (c), (d), and (e).

§51.165 Permit requirements.

(a) * * *

(2) * * * (ii) * * *

(F) Hybrid test for projects that

involve multiple types of emissions

units. A significant emissions increase

of a regulated NSR pollutant is projected

to occur if the sum of the emissions

increases for each emissions unit, using

the method .specified in paragraphs

(a)(2)(ii)(C) through (D) of this 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 (a)(1)(x) of this

section).

* * * * *

(6) Each plan shall provide that the

following specific provisions apply to

projects at existing emissions units at a

major stationary source (other than

projects at a source with a PAL) in

circumstances where there is a

reasonable possibility that a project that

is not a part of a major mpdification may

result in a significant emissions increase

and the owner or operator elects to use

the method specified in paragraphs

(a)(1)(xviii)(B)Cl) through (3) of this

section for calculating projected actual

emissions. Deviations from these

provisions will be approved only if the

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.

* * * * *

m 3. Section 51.166 is amended as

follows:

m a. By removing and reserving

paragraph (a)(7)(iv)(e).

m b. By revising paragraph (a)(7)(iv)(f).

m c. By removing paragraph (a)(7)(vi).

Wd. By removing and reserving

paragraph (b)(2)(iii)(h).

" f. By removing paragraph (b)(3)(vi)(d).

m g. By removing and reserving

paragraph (b)(31).

m h. By removing and reserving

paragraph (b)(41).

m i. By revising paragraph (r)(6)

introductory text.

m j. By removing and reserving

paragraphs (t), (u), and (v).

§51.166 Prevention of significant

deterioration of air quality.

(a) * * *

(7) * * *

(iv) * * *

(f) Hybrid test for projects that involve

multiple types of emissions units. A

significant emissions increase of a

regulated NSR pollutant is projected to

occur if the sum of the emissions

increases for each emissions unit, using

the method specified in paragraphs

(a)(7)(iv)(c) through (d) of this 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) of this

section).

* * * *

(r) * * *

(6) Each plan shall provide that the

following specific provisions apply to

projects at existing emissions units at a

major stationary source (other than

projects at a source with a PAL) in

circumstances where there is a

reasonable possibility that a project that

is not a part of a major modification may

result in a significant emissions increase

and the owner or operator elects'to use

the method specified in paragraphs

(b)(40)(ii)(a) through (c) of this section

for calculating projected actual

emissions. Deviations from these

provisions will be approved only if the

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 (r)(6)(i) through (v) of this

section.

* * * * *

PART 52--[AMENDED]

m 4. The authority citation for part 52

continues to read as follows:

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

Subpart A--fAmended]

M 5. Section 52.21 is amended as

follows:

M a. By removing and reserving

paragraph (a)(2)(iv)(e).

M b. By revising paragraph (a)(2)(iv)(f).
Federal Register / Vol. 72, No. 113 / Wednesday, June 13, 2007/Rules and Regulations

" c. By removing paragraph (a)(2)(vi).

* d. By removing and reserving

paragraph (b)(2)(iii)(h).

m e. By removing paragraph (b)(3)(vi)(d).

" f. By removing and reserving

paragraph (b)(32).

m g. By removing and reserving

paragraph (b)(42).

m h. By revising paragraph (r)(6)

introductory text.

m j. By removing and reserving

paragraphs (x), (y), and (z)

§52.21 Prevention of significant

deterioration of air quality.

(a) * * *

(2) * * *

(iv) * * *

(J) Hybrid test for projects that involve

multiple types of emissions units. A

significant emissions increase of a

regulated NSR pollutant is projected to

occur if the sum of the emissions

increases for each emissions unit, using

the method specified in paragraphs

(a)(2)(iv)(c) through (d) of this 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) of this

section).

• * * * *

(r) * * *

(6) The provisions of this paragraph

(r)(6) apply to projects at an existing

emissions unit at a major stationary

source (other than projects at a source

with a PAL) in circumstances where

there is a reasonable possibility that a

project that is not a part of a majok

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) of this section for calculating

projected actual emissions. • * * * *

[FR Doc. 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 to the

Nevada State Implementation Plan;

Request for Rescission

AGENCY: Environmental- Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing the

rescission of the Federal

implementation plan promulgated

under the Clean Air Act for the

regulation of fugitive sulfur oxides

emissions from a copper smelter that

had operated in the State of Nevada 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.gov and in hard capy at EPA

Region IX, 75 Hawthorne Street, San

Francisco, California. While all

documents in the docket are listed in

the index, some information may be

publicly available only at the hard copy

location (e.g., copyrighted material), and

some may not be 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 to EPA.

Table of Contents

I. Proposed Action

II. Public Comments and EPA'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

of portions of the State's rescission

request and approval of certain

replacement provisions. One of the

rescission requests for which we

proposed approval involved a Federal

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 that the

last vestige of the 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, 2006 proposal. We will

take final action on the remaining few

provisions for which we proposed

action on August 28, 2006 in a third

separate action.

II. Public Comments and EPA

Responses

EPA's proposed action provided a 30-

day public comment period. During this

period, we received no comments

related to the proposed rescission of the

FIP for regulation of the 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 of the rescission of the 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 that is

no longer in existence. EPA is codifying

this action by revising 40 CFR 52.1475

to remove paragraphs (c), (d), and (e).

IV. Statutory and Executive Order

Reviews

A. Executive Order 12866, Regulatory

Planning and Review

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive 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 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. 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 by persons

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 for the 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; train personnel to be able

to respond to a collection of

information; search data sources;

32529