[Federal Register Volume 74, Number 51 (Wednesday, March 18, 2009)]
[Proposed Rules]
[Pages 11509-11512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5996]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2003-0064; FRL-8783-4]
RIN 2060-AP49


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed Rule.

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SUMMARY: EPA is proposing to delay the effective date for the 
Environmental Protection Agency (``EPA'') rule addressing 
``aggregation'' under the Prevention of Significant Deterioration 
(``PSD'') and the nonattainment New Source Review (``nonattainment 
NSR'') programs (collectively, ``NSR'') published in the Federal 
Register on January 15, 2009. This rule (the ``NSR Aggregation 
Amendments'') described 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 resulting in a significant emissions increase.
    On January 30, 2009, the Natural Resources Defense Council 
(``NRDC'') submitted a petition for reconsideration (the ``NRDC 
Petition'') of the NSR Aggregation Amendments. In response to the NRDC 
Petition, EPA announced on February 13, 2009, that it would convene a 
reconsideration proceeding for the NSR Aggregation Amendments and would 
delay the effective date of the rule from February 17, 2009 until May 
18, 2009. In this action, EPA is proposing an additional delay of the 
effective date of the NSR Aggregation Amendments and soliciting comment 
on the duration of this additional delay in order to allow for 
sufficient time to conduct the reconsideration proceeding.

DATES: Comments. Comments must be received on or before April 17, 2009.
    Public Hearing. If anyone contacts EPA requesting a public hearing 
by March 30, 2009, we will hold a public hearing on April 2, 2009. If a 
hearing is held, the record for the hearing will remain open until May 
4, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0064, by one of the following methods:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#86e7abe7e8e2abf4abe2e9e5ede3f2c6e3f6e7a8e1e9f0"><span class="__cf_email__" data-cfemail="badb97dbd4de97c897ded5d9d1dfcefadfcadb94ddd5cc">[email protected]</span></a>.
    <bullet> Mail: Air and Radiation Docket and Information Center, 
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.
    <bullet> Hand Delivery: Environmental Protection Agency, EPA West 
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2003-0064. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (``CBI'') or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    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., CBI 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, and the telephone number for the Air and Radiation 
Docket and Information Center is (202) 566-1742.
    Public Hearing: If a hearing is held, it will be held at the U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, Washington, 
DC 20004.

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 number: (919) 541-2380; fax number: (919) 541-5509; e-
mail address <a href="/cdn-cgi/l/email-protection#047772616a607763656576602a60657261446174652a636b72"><span class="__cf_email__" data-cfemail="aad9dccfc4ced9cdcbcbd8ce84cecbdccfeacfdacb84cdc5dc">[email protected]</span></a>.
    To request a public hearing, please contact Mrs. Pam Long, Air 
Quality Policy Division, Office of Air Quality Planning and Standards 
(C504-03), U.S. Environmental Protection Agency,

[[Page 11510]]

Research Triangle Park, NC 27711; telephone number: (919) 541-0641; fax 
number: (919) 541-5509; e-mail address: <a href="/cdn-cgi/l/email-protection#e38f8c8d84cd93828ea3869382cd848c95"><span class="__cf_email__" data-cfemail="87ebe8e9e0a9f7e6eac7e2f7e6a9e0e8f1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Entities potentially affected this proposed action include sources 
in all industry groups and state, local, and tribal governments.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information on a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed to be CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    <bullet> Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    <bullet> Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    <bullet> Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
    <bullet> Describe any assumptions and provide any technical 
information and/or data that you used.
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    <bullet> Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
    <bullet> Make sure to submit your comments by the comment period 
deadline identified.

C. Where Can I Get a Copy of This Document and Other Related 
Information?

    In addition to being available in the docket, an electronic copy of 
this notice is also available on the World Wide Web. A copy of this 
notice will be posted at http://www.epa.gov/nsr.

D. What Information Should I Know About the Public Hearing?

    EPA will hold a hearing only if a party notifies EPA by March 30, 
2009, expressing its interest in presenting oral testimony on issues 
addressed in this notice. Any person may request a hearing by calling 
Mrs. Pam Long at (919) 541-0641 before 5 p.m. on March 30, 2009. 
Persons interested in presenting oral testimony should contact Mrs. Pam 
Long at (919) 541-0641. Any person who plans to attend the hearing 
should also contact Mrs. Pam S. Long at (919) 541-0641 or visit the 
EPA's Web site at http://www.epa.gov/nsr and to learn if a hearing will 
be held.
    If a public hearing is held on this notice, it will be held at the 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, 
Washington, DC 20004. Because the hearing will be held at a U.S. 
Government facility, everyone planning to attend should be prepared to 
show valid picture identification to the security staff in order to 
gain access to the meeting room. Please check our Web site at http://www.epa.gov/nsr concerning the public hearing.
    If held, the public hearing will begin at 10 a.m. and end 1 hour 
after the last registered speaker has spoken. The hearing will be 
limited to the subject matter of this document. Oral testimony will be 
limited to 5 minutes. The EPA encourages commenters to provide written 
versions of their oral testimony either electronically (on computer 
disk or CD-ROM) or in paper copy. The list of speakers will be posted 
on EPA's Web site at http://www.epa.gov/nsr. A verbatim transcript and 
written statements will be included in the rulemaking docket.
    A public hearing would provide interested parties the opportunity 
to present data, views, or arguments concerning issues addressed in 
this notice. The EPA may ask clarifying questions during the oral 
presentations, but would not respond to the presentations or comments 
at that time. Written statements and supporting information submitted 
during the comment period will be considered with the same weight as 
any oral comments and supporting information presented at a public 
hearing.

E. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does This Action Apply to Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
    C. Where Can I Get a Copy of This Document and Other Related 
Information?
    D. What Information Should I Know About the Public Hearing?
    E. How is This Document Organized?
II. This Action
III. Statutory and Executive Order Reviews
    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 From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer 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)
IV. Statutory Authority

II. This Action

    On January 15, 2009, the EPA (``we'') issued a final rule amending 
our PSD and nonattainment NSR regulations implementing the definition 
of ``modification'' in the Clean Air Act (``CAA'') 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 resulting in a significant emission increase. The amendments 
retained the rule language for aggregation but interpreted that rule 
text to mean that sources and permitting authorities should combine 
emissions when activities are ``substantially related.'' The rule also 
adopted a rebuttable presumption that activities at a plant can be 
presumed not to be substantially related if they occur three or more 
years apart. Collectively, this rulemaking is known as the ``NSR 
Aggregation Amendments.'' For further information on the NSR 
Aggregation Amendments, please see 74 FR 2376 (January 15, 2009).
    On January 30, 2009, the Natural Resources Defense Council 
(``NRDC'') submitted a petition for reconsideration

[[Page 11511]]

of the NSR Aggregation Amendments as provided for in CAA 
307(d)(7)(B).\1\ Under that CAA provision, the Administrator may 
commence a reconsideration proceeding if the petitioner raises an 
objection to a rule that was impracticable to raise during the comment 
period or if the grounds for the objection arose after the comment 
period. In either case, the objection must be of central relevance to 
the outcome of the rule. The Administrator may stay the effectiveness 
of the rule for up to three months during such reconsideration.
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    \1\ John Walke, Natural Resources Defense Council, EPA-HQ-OAR-
2003-0064-0116.1.
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    On February 13, 2009, we issued notices announcing the convening of 
a reconsideration proceeding in response to the NRDC petition and an 
administrative stay of the NSR Aggregation Amendments, which delayed 
the effective date of the NSR Aggregation Rule for 90 days from 
February 17, 2009 until May 18, 2009. See 74 FR 7193 and 74 FR 7284 
(February 13, 2009). As noted above, our authority to delay the 
effective date of a rule solely under the Administrator's discretion is 
limited to three months. On occasion, however, we have found three 
months to be insufficient to complete the necessary steps in the 
reconsideration process. Therefore, when we have issued similar 
administrative stays in the past, it has often been our practice to 
also propose an additional extension of the stay of effectiveness 
through a rulemaking process. An additional extension enables us to 
take comment on issues that are in question and complete any revisions 
of the rule that become necessary as a result of the reconsideration 
process.
    As with some of our past reconsiderations, we expect to take 
comment on a broad range of legal and policy issues as part of the NSR 
Aggregation Amendments reconsideration, and we are in the process of 
preparing the necessary comment solicitation to help focus commenters 
on issues of central relevance to our decision-making. Recognizing that 
these issues may be difficult and time consuming to evaluate, and given 
the expected high level of interest from stakeholders in commenting on 
these issues, we are proposing additional time to open these issues for 
review and comment.
    Therefore, we propose to delay the effective date of the NSR 
Aggregation Amendments, FR Doc. E9-815, published in the Federal 
Register on January 15, 2009 (74 FR 2376), until November 18, 2009. 
This delay would be for an additional six months, which we believe 
would provide a reasonable period of time to complete action on the 
reconsideration. As alternatives, we also solicit comment on longer 
periods for a delay of effectiveness: (1) until February 18, 2010 (nine 
additional months) or (2) May 18, 2010 (12 additional months).
    Note that we are not taking comment at this time on any substantive 
issues from the NSR Aggregation Amendments. This notice simply proposes 
to further extend the effective date, so comments should be limited to 
the issue of whether and how long to extend the effective date of the 
rule. A separate Federal Register notice published in the near future 
will specifically solicit comment on the range of issues under 
reconsideration.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
We are not promulgating any new paperwork requirements (e.g., 
monitoring, reporting, recordkeeping) as part of this proposed action. 
However, the Office of Management and Budget (``OMB'') has previously 
approved the information collection requirements contained in the 
existing regulations (40 CFR parts 51 and 52) under the provisions of 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned 
OMB control number 2060-0003. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA'') generally requires an 
Agency to prepare a regulatory flexibility analysis of any regulation 
subject to notice and comment rulemaking requirements under the 
Administrative Procedures Act or any other statute unless the Agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposal on small 
entities, small entity is defined as: (1) A small business that is a 
small industrial entity as defined in the U.S. Small Business 
Administration (``SBA'') size standards. (See 13 CFR 121.); (2) A 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less 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 impact of these proposed revisions 
to the regulations on small entities, I certify that this action will 
not have a significant economic impact on a substantial number of small 
entities. This proposal will not impose any requirements on small 
entities.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no 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, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of section 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. The EPA has 
determined that these proposed regulation revisions contain no 
regulatory requirements that may significantly or uniquely affect small 
governments, including tribal governments because these regulations 
affect Federal agencies only.

E. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have Federalism implications.'' 
Policies that have ``Federalism implications'' are defined in the 
Executive Order to include regulations that 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.''
    This action does not have Federalism implications. It will not have 
substantial

[[Page 11512]]

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, as specified 
in Executive Order 13132. This proposed rule, if made final, would 
delay the effective date of the NSR Aggregation Amendments and allow 
for sufficient time to conduct the reconsideration. Thus, Executive 
Order 13132 does not apply to these proposed regulation revisions.
    In the spirit of Executive Order 13121 and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA is soliciting comments on this proposal from state and 
local officials.

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

    This action does not have Tribal implications as specified in 
Executive Order 13175. No tribal government currently has an approved 
tribal implementation plan under the CAA to implement the NSR program, 
therefore the Federal government is currently the NSR reviewing 
authority in Indian country. Thus, tribal governments should not 
experience added burden from this proposed action. Thus, Executive 
Order 13175 does not apply.
    EPA specifically solicits additional comment on the proposed 
revisions to the regulations from Tribal officials.

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

    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 proposal is taking comment on delaying the effective 
date of the NSR Aggregation Amendments and allows for sufficient time 
to conduct the reconsideration. However, EPA solicits comments on 
whether the proposal would result in an adverse environmental effect 
that would have a disproportionate effect on children.

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), 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 technical 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 proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations 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 of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The proposed revision is taking comment on delaying the 
effective date of the NSR Aggregation Amendments and allows for 
sufficient time to conduct the reconsideration. As such, it does not 
adversely affect the health or safety of minority or low income 
populations.

K. Determination Under Section 307(d)

    Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the 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 of 
section 307(d) apply to ``such other actions as the Administrator may 
determine.''

IV. Statutory Authority

    The statutory authority for this action is provided by sections 
307(d)(7)(B), 101, 111, 114, 116, and 301 of the CAA as amended (42 
U.S.C. 7401, 7411, 7414, 7416, and 7601). This notice is also subject 
to section 307(d) of the CAA (42 U.S.C. 7407(d)).

List of Subjects

40 CFR Part 51

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

40 CFR Part 52

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

    Dated: March 12, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-5996 Filed 3-17-09; 8:45 am]
BILLING CODE 6560-50-P


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