[Federal Register Volume 89, Number 204 (Tuesday, October 22, 2024)]
[Rules and Regulations]
[Pages 84286-84288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24281]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2024-0234; FRL-11945-01-OAR]


Prevention of Significant Deterioration (PSD): Paragraph 
Designation Corrections

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending its 
Prevention of Significant Deterioration (PSD) regulations to correct 
the fourth-level paragraph designations to conform with the Office of 
the Federal Register (OFR) requirements. This is a ministerial final 
rule action that involves minor technical corrections.

DATES: This rule is effective October 22, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2024-0234. All documents in the docket are 
listed on the https://www.regulations.gov website. Publicly available 
docket materials are available either electronically through https://www.regulations.gov or in hard copy at the EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding federal holidays. The telephone number for 
the Public Reading Room is (202) 566-1744, and the telephone number for 
the Office of Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Questions concerning this final rule 
should be addressed to Mr. Peter Keller, Air Quality Policy Division, 
Office of Air Quality Planning and Standards (C539-04), U.S. 
Environmental Protection Agency, Post Office Box 12055, Research 
Triangle Park, NC 27711; telephone number: (919) 541-2065; email 
address: <a href="/cdn-cgi/l/email-protection#1e757b72727b6c306e7b6a7b6c5e7b6e7f30797168"><span class="__cf_email__" data-cfemail="f49f9198989186da8491809186b4918495da939b82">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. Does this action apply to me?
II. Background and Rationale for This Action
III. Final Action
IV. Statutory and Executive Order Reviews
V. Statutory Authority
VI. Judicial Review

I. Does this action apply to me?

    No entities will be affected by this final action. The EPA is 
amending its PSD regulations to correct the fourth-level paragraph 
designations from the Code of Federal Regulations (CFR) to conform with 
the OFR requirements. The EPA is responsible for making the required 
paragraph codification corrections in the EPA PSD regulations and 
communicating those corrections to stakeholders, including state, 
local, and Tribal (SLT) permitting authorities and regulated entities. 
SLT permitting authorities are not required to make corresponding 
corrections to any of their regulations implementing the PSD program 
including those approved by the EPA into a State Implementation Plan 
(SIP).

II. Background and Rationale for This Action

    Part C of title I of the Clean Air Act (CAA), 42 U.S.C. 7470 et 
seq., contains the requirements for a component of the major New Source 
Review (NSR) program known as the PSD program. This program sets forth 
procedures for the preconstruction review and permitting of new and 
modified stationary sources of air pollution located in areas meeting 
the National Ambient Air Quality Standards (NAAQS) (``attainment'' 
areas) and areas for which there is insufficient information to 
classify an area as either attainment or nonattainment 
(``unclassifiable'' areas). The EPA's PSD regulations are contained in 
40 CFR

[[Page 84287]]

51.166 (applicable to air agencies that issue permits under EPA-
approved SIPs) and 40 CFR 52.21 (applicable to permits issued by the 
EPA or air agencies that have received delegation to implement the 
federal PSD program).
    In 2019, the OFR identified that the paragraph codification scheme 
of these PSD regulations was inconsistent with OFR requirements, and 
the EPA committed to correcting this inconsistency. However, recently 
as part of OFR's review of the proposed rule: ``Prevention of 
Significant Deterioration (PSD) and Nonattainment New Source Review 
(NNSR): Regulations Related to Project Emissions Accounting'' (RIN 
2060-AV62), the OFR determined that the EPA had not yet made the 
corrections. To resolve the OFR's concerns, the EPA is revising the PSD 
regulations to conform with the OFR requirements \1\ through this 
ministerial final rule action to correct the fourth-level paragraph 
designations. Specifically, this rule will correct the fourth-level 
paragraph codification in 40 CFR 51.166 and 40 CFR 52.21 from (a), et 
seq., to (A), et seq. In other words, the fourth-level paragraph 
designations will be changed from lowercase italicized letters to 
uppercase non-italicized letters.
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    \1\ Document Drafting Handbook, August 2018 Edition (Revised 
2.1, dated October 2023), Office of the Federal Register, National 
Archives and Records Administration.
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    The error in the fourth-level paragraph codification in the EPA's 
PSD regulations can be traced back to their inception in the 1970s. On 
December 5, 1974, the EPA published the first set of PSD regulations 
under the CAA Amendments of 1970.\2\ These regulations were codified at 
40 CFR 52.21 and established a program for protecting areas with air 
quality either in attainment with the NAAQS or unclassifiable. A 
comprehensive set of new PSD requirements were later adopted by 
Congress as part of the CAA Amendments of 1977.\3\ The EPA amended the 
PSD regulations to incorporate those new statutory requirements on June 
19, 1978 (43 FR 26380 and 43 FR 26388). These regulations were codified 
at 40 CFR 51.24 (minimum requirements for state plans, later codified 
at 40 CFR 51.166 \4\) and 40 CFR 52.21 (federal PSD regulations). The 
PSD regulations were subsequently revised numerous times, but the 
fourth-level paragraph designations have remained inconsistent with the 
OFR requirements.\5\ This ministerial final rule will correct the 
paragraph designation inconsistencies that were established decades ago 
in the EPA's PSD regulations to conform with the OFR requirements.
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    \2\ CAA Amendments of 1970, Public Law 91-604, 84 Stat. 1676 
(1970); 39 FR 42510.
    \3\ CAA Amendments of 1977, Public Law 95-95, 91 Stat. 685 
(1977).
    \4\ 51 FR 40656 (November 7, 1986).
    \5\ See 40 CFR 51.166 and 40 CFR 52.21 (July 1, 2023).
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III. Final Action

    The EPA is promulgating this rule as a final rule without prior 
notice or opportunity for public comment pursuant to the good cause 
exemption under the Administrative Procedure Act (APA) section 
553(b)(B). 5 U.S.C. 553(b)(B). Generally, the APA requires that general 
notice of proposed rulemaking be published in the Federal Register and 
such notice must provide an opportunity for public participation in the 
rulemaking process. However, the APA also allows an agency to directly 
promulgate a final rulemaking when an agency for good cause finds (and 
incorporates the finding and a brief statement of reasons in the rule 
issued) that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(3)(B).
    The EPA has determined that this final action meets the 
``unnecessary'' basis for using the good cause exemption since 
amendments promulgated in this action are very minor and do not 
substantively alter the regulation in any way that would be of interest 
to the regulated community or the public. This final action involves 
purely ministerial revisions to the PSD regulations in 40 CFR 51.166 
and 40 CFR 52.21 involving minor structural corrections to conform with 
the OFR paragraph designation requirements. Specifically, the fourth-
level paragraph designations will be corrected from lowercase 
italicized letters to uppercase non-italicized letters. The OFR 
paragraph designation requirements are established by the OFR; 
therefore, EPA has no discretion but to correct the affected paragraph 
designations in the EPA PSD regulations. Notice and comment 
requirements are unnecessary because seeking public comment on this 
issue would neither inform the public of agency action that may be of 
interest nor provide the agency with information that would be helpful 
in developing a final rule.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in 
Executive Order 12866, as amended by Executive Order 14094, and was, 
therefore, not subject to Executive Order 12866 review.

B. Paperwork Reduction Act (PRA)

    This action involves very minor technical corrections and does not 
impose any new information collection burden under the PRA. The Office 
of Management and Budget (OMB) has previously approved the information 
collection activities contained in the existing regulations and has 
assigned OMB control number 2060-0003.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
APA, 5 U.S.C. 553, or any other statute. This rule is not subject to 
notice and comment requirements because the Agency has invoked the APA 
``good cause'' exemption under 5 U.S.C. 553(b).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action implements mandate(s) specifically and 
explicitly set forth in 44 U.S.C. 15 and 1 CFR chapter I without the 
exercise of any policy discretion by the EPA.

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 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175. This action only makes very minor technical 
amendments to correct non-substantive errors in existing regulations. 
None of these very minor technical amendments has a substantial direct 
effect on any tribal

[[Page 84288]]

land. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. Therefore, this action is not 
subject to Executive Order 13045 because it does not concern an 
environmental health risk or safety risk. Since this action does not 
concern human health, EPA's Policy on Children's Health also does not 
apply.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    The EPA finds that this action does not concern human health or 
environmental conditions and therefore cannot be evaluated with respect 
to potentially disproportionate and adverse effects on communities with 
environmental justice concerns. This action changes the fourth-level 
paragraph designation of the EPA's PSD regulations contained in 40 CFR 
51.166 and 40 CFR 52.21 to conform with OFR requirements. This action 
makes very minor technical amendments to correct non-substantive errors 
in existing rules.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. The CRA 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 comment rulemaking procedures are 
impracticable, unnecessary or contrary to the public interest. 5 U.S.C. 
808(2). The EPA has made a good cause finding for this rule as 
discussed in the Final Action section of this rulemaking, including the 
basis for that finding.

V. Statutory Authority

    Statutory authority to issue the amendments finalized in this 
action is provided by the same CAA provisions that provided authority 
to issue the regulations being amended: 42 U.S.C. 7401 et seq. 
Statutory authority for the rulemaking procedures followed in this 
action is provided by APA section 553, 5 U.S.C. 553.

VI. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the D.C. Circuit within 60 days from October 22, 2024. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review, nor does it extend the time within which a petition 
for judicial review may be filed and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements (section 307(b)(2) of 
the CAA).

List of Subjects in 40 CFR Parts 51 and 52

    Environmental protection, Administrative practices and procedures, 
Air pollution control, New source review, Preconstruction permitting, 
Prevention of significant deterioration.

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, title 40, Chapter I of the 
Code of Federal Regulations is amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

0
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--Review of New Sources and Modifications


Sec.  51.166  [Amended]

0
2. In Sec.  51.166 revise the paragraph level designation for the 4th 
paragraph level from lowercase italic letters to uppercase non-italic 
letters.

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
3. The authority citation for part 52 continues to read as follows:

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

Subpart A--General Provisions


Sec.  52.21  [Amended]

0
4. In Sec.  52.21, revise the paragraph level designation for the 4th 
paragraph level from lowercase italic letters to uppercase non-italic 
letters.

[FR Doc. 2024-24281 Filed 10-21-24; 8:45 am]
BILLING CODE 6560-50-P


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