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[Federal Register: May 18, 2010 (Volume 75, Number 95)]
[Rules and Regulations]               
[Page 27643-27644]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my10-6]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2003-0064; FRL-9150-5]
RIN 2060-AP80

 
Prevention of Significant Deterioration (PSD) and Nonattainment 
New Source Review (NSR): Aggregation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Delay of effective date.

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SUMMARY: EPA is delaying the effective date of the final rule titled 
``Prevention of Significant Deterioration (PSD) and Nonattainment New 
Source Review (NSR): Aggregation'' under the authority of the 
Administrative Procedure Act (APA) section 705 until the proceeding for 
judicial review of this rule is completed or EPA completes the 
reconsideration of the rule. This final rule for ``aggregation,'' which 
EPA published in the Federal Register on January 15, 2009, is subject 
to a petition for review and has not become effective.

DATES: The effective date of FR Doc. E9-815, published in the Federal 
Register on January 15, 2009 (74 FR 2376), and delayed on February 13, 
2009 (74 FR 7284) and May 14, 2009 (74 FR 22693), which was May 18, 
2010, is further delayed until such time as the proceeding for judicial 
review of this document is completed. The EPA will publish a document 
in the Federal Register announcing the effective date once the delay is 
no longer necessary.

ADDRESSES: Docket: The final rule, the petition for reconsideration, 
and all other documents in the record for the rulemaking are in Docket 
ID. No. EPA-HQ-OAR-2003-0064. 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., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, will be 
publicly available only in hard copy. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air and Radiation Docket and 
Information Center, EPA/DC, 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 through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744.

FOR FURTHER INFORMATION CONTACT: Mr. David J. Svendsgaard, Air Quality 
Policy Division, Office of Air Quality Planning and Standards (C504-
03), U.S. Environmental Protection Agency, Research Triangle Park, NC 
27711, telephone (919) 541-2380, fax number (919) 541-5509, e-mail 
address: svendsgaard.dave@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 15, 2009, the EPA (``we'') issued a final rule amending 
the PSD and nonattainment NSR regulations that implement the definition 
of ``modification'' in Clean Air Act section 111(a)(4). The amendments 
addressed when a source must combine (``aggregate'') nominally-separate 
physical changes and changes in the method of operation for the purpose 
of determining whether they are a single change under NSR and result in 
a significant emissions increase. The amendments retained the existing 
rule language for aggregation but interpreted that rule text to mean 
that sources and permitting authorities should combine emissions when 
activities are ``substantially related.'' It also adopted a rebuttable 
presumption that activities at a plant can be presumed not to be 
substantially related if they occur 3 or more years apart. 
Collectively, this rulemaking is known as the ``NSR Aggregation 
Amendments.'' For further information on the NSR Aggregation 
Amendments, see 74 FR 2376 (January 15, 2009).
    The NSR Aggregation Amendments have had their effectiveness delayed 
by two actions published in the Federal Register. See 74 FR 7284 
(February 13, 2009) and 74 FR 22693 (May 14, 2009).

[[Page 27644]]

The latter action established an effective date of May 18, 2010. On the 
same day as the first action delaying the effectiveness of the NSR 
Aggregation Amendments, the EPA convened a proceeding for 
reconsideration in response to a petition from the Natural Resources 
Defense Council (NRDC).\1\ See 74 FR 7193 (February 13, 2009). In 
addition to filing a petition for reconsideration with EPA, NRDC also 
filed a petition for review of the NSR Aggregation Amendments in 
Federal Court.\2\
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    \1\ John Walke, Natural Resources Defense Council, EPA-HQ-OAR-
2003-0064-0116.1.
    \2\ NRDC v. EPA, No. 09-1103 (DC Cir.).
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    On April 15, 2010, we published in the Federal Register a notice 
soliciting comments on the NRDC petition for reconsideration (75 FR 
19567). In that notice, we solicited comment on revoking the NSR 
Aggregation Amendments and reverting to our policies on aggregation as 
they existed prior to the Amendments. We requested comment on whether 
the NSR Aggregation Amendments are inconsistent with the statute and 
key legal precedent, do not properly resolve the relevant policy 
issues, raise implementation concerns, and otherwise do not 
sufficiently clarify our aggregation policy to justify abandoning our 
prior policy. Additionally, we proposed to further delay the effective 
date for the NSR Aggregation Amendments beyond May 18, 2010.
    Under section 705 of the APA, ``an agency * * * may postpone the 
effective date of [an] action taken by it pending judicial review.'' 
The provision requires that the agency find that justice requires 
postponing the action, that the action not have gone into effect, and 
that litigation be pending. As described above, the latter two 
requirements plainly are met. We find that justice requires postponing 
the effectiveness of the NSR Aggregation Amendments because allowing 
the rule to become effective when the Agency has expressed serious 
concerns about its viability and policy soundness would lead to 
confusion in the regulated community and the public as well as create 
difficulties for implementing agencies administering the program.
    We also note that the comment period for the April 15, 2010 notice 
ends on May 17, 2010. We would not be able to review and respond to 
comments on that notice before the NSR Aggregation Amendments would 
become effective on May 18, 2010. The failure to complete the 
reconsideration or the proposed delay in the effective date would 
result in the confusion and difficulties noted above. Therefore, we 
find that justice requires postponing the effectiveness of the NSR 
Aggregation Amendments in order to allow for proper evaluation of the 
comments on the April 15, 2010 notice.

II. Issuance of a Stay and Delay of Effective Date

    Pursuant to section 705 of the APA, the EPA hereby postpones the 
effectiveness of the NSR Aggregation Amendments until resolution of the 
proceeding for judicial review of this rule or the completion of the 
reconsideration process. By this action, we are delaying the effective 
date of FR Doc. E9-815, published in the Federal Register on January 
15, 2009 (74 FR 2376). This delay of effectiveness will remain in place 
until judicial review is no longer pending or EPA completes the 
reconsideration process.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Aggregation, Air pollution control, Baseline emissions, 
Intergovernmental relations, Major modifications, Reporting and 
recordkeeping requirements.

40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Aggregation, Air pollution control, Baseline emissions, 
Intergovernmental relations, Major modifications, Reporting and 
recordkeeping requirements.

    Dated: May 6, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-11299 Filed 5-17-10; 8:45 am]
BILLING CODE 6560-50-P
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