[Federal Register Volume 69, Number 126 (Thursday, July 1, 2004)]
[Rules and Regulations]
[Pages 40274-40276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14989]



[[Page 40273]]

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Part VII





Environmental Protection Agency





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40 CFR Parts 51 and 52



Prevention of Significant Deterioration (PSD) and Non-attainment New 
Source Review (NSR): Equipment Replacement Provision of the Routine 
Maintenance, Repair and Replacement Exclusion; Stay; Final Rule

  Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules 
and Regulations  

[[Page 40274]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[AD-FRL-7780-1; E-Docket ID No. OAR-2002-0068; Legacy Docket No. A-
2002-04]
RIN 2060-AM28


Prevention of Significant Deterioration (PSD) and Non-attainment 
New Source Review (NSR): Equipment Replacement Provision of the Routine 
Maintenance, Repair and Replacement Exclusion; Stay

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: A December 24, 2003 order of the U.S. Court of Appeals for the 
District of Columbia Circuit stayed the effectiveness of the Equipment 
Replacement Provision (ERP) of the Clean Air Act (CAA) New Source 
Review (NSR) Routine Maintenance, Repair, and Replacement (RMRR) 
exclusion. Today's action reflects this stay in the Code of Federal 
Regulations. This document also sets out EPA's interpretation of the 
effect of the stay on the Prevention of Significant Deterioration (PSD) 
federal implementation plans in various state implementation plans. EPA 
is issuing this final rule without notice and opportunity for public 
comment because there is good cause to do so within the meaning of the 
Administrative Procedure Act.

DATES: Effective July 1, 2004.

ADDRESSES: EPA has established a docket for this action under E-Docket 
ID No. OAR-2002-0068 (legacy docket number no. A-2002-04). This number 
will also appear at the top of your FR document along with the FRL 
assigned to your particular FR document]. All documents in the docket 
are listed in the EDOCKET index at http://www.epa.gov/edocket. Although 
listed in the index, some information is not publicly available, i.e., 
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 
in EDOCKET or in hard copy at the EPA Docket Center (EPA/DC), EPA West, 
Room B102, 1301 Constitution Ave., NW., Washington, DC. This Docket 
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. 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 Svendsgaard, Information 
Transfer and Program Integration Division (C339-03), U.S. EPA Office of 
Air Quality Planning and Standards, Research Triangle Park, North 
Carolina 27711, telephone number (919) 541-2380, facsimile number (919) 
541-5509, electronic mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Today's Final Rule

A. What RMRR Exclusion Is in Effect After the Court's Order?

    On October 27, 2003, EPA published amendments to the regulations 
governing the PSD and NSR programs mandated under parts C and D of 
title I of the Clean Air Act (CAA). These amendments added an 
``Equipment Replacement Provision'' (ERP) to the Routine Maintenance, 
Repair, and Replacement (RMRR) exclusion from these programs.\1\ This 
provision was scheduled to take effect on December 26, 2003.
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    \1\ For an explanation of the development of the new provisions 
and the reasons for them, see 68 FR 61248 (October 27, 2003), and 
the docket referenced above.
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    Shortly after publication of the ERP amendments, various parties 
filed petitions for review of EPA's action in the U.S. Court of Appeals 
for the District of Columbia Circuit (State of New York v. EPA, No. 03-
1380 and consolidated cases). Upon the motions of various petitioners, 
the Court ordered the new provisions stayed pending the completion of 
its review. The Court issued its order on December 24, 2003. Therefore, 
the new provisions never became effective.
    Today's final rule adds a note to the RMRR provisions due to the 
fact that the new provisions have been stayed. The effect of the 
Court's stay order keeps the RMRR provisions in effect as they existed 
prior to the ERP amendments. We have inserted a note into each affected 
paragraph of the CFR explaining which portions of the rules are 
affected by the Court's order. Upon the Court completing its review or 
otherwise terminating the stay order, EPA will publish an additional 
notice in the Federal Register reflecting the termination of the stay 
and the status of the ERP.

B. What Amendments Are Necessary for the PSD FIPs Due to the Stay?

    On December 24, 2003, EPA promulgated a FIP correction rule, which 
amended the way in which EPA incorporates Sec.  52.21 into each FIP. 
The new format incorporates revisions to Sec.  52.21 without further 
revision to each FIP in each subpart (see 68 FR 74483). EPA's new 
format for incorporating Sec.  52.21 into each FIP states that all of 
Sec.  52.21 is incorporated except paragraph (a)(1).
    Parties to the litigation on the ERP, as well as states not 
involved in the litigation, asked whether the FIP correction rule would 
make the ERP effective in states with PSD FIPs, notwithstanding the 
stay. As previously communicated to all parties on January 8, 2004, it 
is EPA's opinion that, because the FIPs incorporate sections of 52.21 
that have been stayed by the court, these ``ERP'' sections are not 
effective in the areas covered by the FIPs (e.g., it does not matter 
that the FIPs now incorporate Sec.  52.21(cc) because that section is 
stayed). This result occurs automatically due to the Court's staying of 
the underlying rule changes at 40 CFR 52.21, and that further action by 
the Court or EPA is not necessary.

C. What Is the Basis for Finding Good Cause To Make These Amendments 
Immediately Effective?

    The EPA has determined that notice and comment on this amendment to 
the NSR regulations is not required. Under the Administrative Procedure 
Act (5 U.S.C. 553(b)(3)(B)), a rule is exempt from notice and public 
comments requirements ``when the agency for a good cause finds (and 
incorporates the finding and a brief statements of reasons therefor in 
the rule issued) that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.''
    The terms of the court order prevented the ERP from coming into 
effect. In the absence of the ERP, the prior regulatory text remains in 
effect. Accordingly, this rule is merely a housekeeping measure that 
reflects the court order. The action does not have any substantive 
effect.
    Public comment could not change the result dictated by the court 
order, and is therefore unnecessary and impracticable. In addition, 
delay in issuing this rule amending the existing regulations could 
result in confusion on the part of state and local air pollution 
control agencies as well as the public regarding which text is in 
effect. Notice and comment would therefore be

[[Page 40275]]

contrary to the public interest. Accordingly, EPA has concluded that 
notice and comment on this rule would be impracticable, unnecessary, 
and contrary to the public interest, within the meaning of 5 U.S.C. 
553(b)(3)(B).
    The EPA also believes that there is good cause to make today's rule 
effective immediately, rather than effective within 30 days, within the 
meaning of 5 U.S.C. 553(d)(3). For the reasons stated above, EPA has 
determined that it is unnecessary, impracticable and contrary to the 
public interest to delay this rule. In addition, EPA has balanced the 
necessity for immediate implementation against principles of 
fundamental fairness, which require that all affected persons be 
afforded a reasonable amount of time to prepare for the effective date 
of this rule. In so doing, EPA has concluded that, because the court 
order came into effect upon issuance, the benefit to the public of 
adding to the CFR text a note clarifying the effect of the Court's 
action immediately outweighs the need, if any, to give affected parties 
time to adjust their behavior accordingly. Indeed, EPA has determined 
that, on balance, making this rule effective immediately is in the 
public interest and affected parties will better be served by the 
avoidance of confusion.

II. Statutory and Executive Order Reviews

    This final rule merely conforms the CFR to the terms of the State 
of New York v. EPA Court's order of December 24, 2003. In so doing, 
this rule has no substantive effect. Therefore, under Executive Order 
12866 (58 FR 51735, October 4, 1993), this action is not a 
``significant regulatory action'' and is therefore not subject to OMB 
review. Because this action is not subject to notice-and-comment 
requirements under the Administrative Procedure Act or any other 
statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.) or sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not 
significantly or uniquely affect small governments. This rule does not 
have tribal implications, as specified in Executive Order 13175 (63 FR 
67249, November 9, 2000). This action will not have federalism 
implications, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999). This action also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant. This action is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866. 
This action does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The Office 
of Management and Budget (OMB) approved the information collection 
requirements contained for the NSR regulations that are in effect as a 
result of the court order under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2060-0003, EPA ICR number 1230.10.

III. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that 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 Congress and the Comptroller General of the United 
States. 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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Parts 51 and 52

    Environmental protection, Administrative practices and procedures, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: June 23, 2004.
Michael O. Leavitt,
Administrator.

0
40 CFR parts 51 and 52 are amended as follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.


0
2. Section 51.165 is amended by adding notes to paragraphs 
(a)(1)(v)(C)(1), (a)(1)(xliii), (a)(1)(xliv), (a)(1)(xlv), 
(a)(1)(xlvi), and (h) to read as follows:


Sec.  51.165  Permit requirements.

    (a) * * *
    (1) * * *
    (v) * * *
    (C) * * *
    (1) * * *


    Note to paragraph (a)(1)(v)(C)(1):
    On December 24, 2003, the second sentence of this paragraph 
(a)(1)(v)(C)(1) is stayed indefinitely by court order. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.

* * * * *
    (xliii) * * *

    Note to paragraph (a)(1)(xliii): By a court order on December 
24, 2003, this paragraph (a)(1)(xliii) is stayed indefinitely. The 
stayed provisions will become effective immediately if the court 
terminates the stay. At that time, EPA will publish a document in 
the Federal Register advising the public of the termination of the 
stay.


* * * * *
    (xliv) * * *

    Note to paragraph (a)(1)(xliv): By a court order on December 24, 
2003, this paragraph (a)(1)(xliv) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


    (xlv) * * *

    Note to paragraph (a)(1)(xlv): By a court order on December 24, 
2003, this paragraph (a)(1)(xlv) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


    (xlvi) * * *

    Note to paragraph (a)(1)(xlvi): By a court order on December 24, 
2003, this paragraph (a)(1)(xlvi) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


* * * * *
    (h) * * *


    Note to paragraph (h): By a court order on December 24, 2003, 
this paragraph (h) is stayed indefinitely. The stayed provisions 
will become effective immediately if the court terminates the stay. 
At that time, EPA will publish a document in the Federal Register 
advising the public of the termination of the stay.


* * * * *

0
3. Section 51.166 is amended by adding notes to paragraphs 
(b)(2)(iii)(a), (b)(53), (b)(54), (b)(55), (b)(56) and (y) to read as 
follows:

[[Page 40276]]

Sec.  51.166  Prevention of significant deterioration of air quality.

* * * * *
    (b) * * *
    (2) * * *
    (iii) * * *
    (a) * * *

    Note to paragraph (b)(2)(iii)(a):
    On December 24, 2003, the second sentence of this paragraph 
(b)(2)(iii)(a) is stayed indefinitely by court order. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


* * * * *
    (53) * * *


    Note to paragraph (b)(53): By a court order on December 24, 
2003, this paragraph (b)(53) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


    (54) * * *


    Note to paragraph (b)(54): By a court order on December 24, 
2003, this paragraph (b)(54) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


    (55) * * *


    Note to paragraph (b)(55): By a court order on December 24, 
2003, this paragraph (b)(55) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


    (56) * * *


    Note to paragraph (b)(56): By a court order on December 24, 
2003, this paragraph (b)(56) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


* * * * *
    (y) * * *


    Note to paragraph (y): By a court order on December 24, 2003, 
this paragraph (y) is stayed indefinitely. The stayed provisions 
will become effective immediately if the court terminates the stay. 
At that time, EPA will publish a document in the Federal Register 
advising the public of the termination of the stay.


PART 52--[AMENDED]

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

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


0
2. Section 52.21 is amended by adding notes to paragraphs 
(b)(2)(iii)(a), (b)(55), (b)(56), (b)(57), (b)(58) and (cc) to read as 
follows:


Sec.  52.21  Prevention of significant deterioration of air quality.

* * * * *
    (b) * * *
    (2) * * *
    (iii) * * *
    (a) * * *


    Note to paragraph (b)(2)(iii)(a): By court order on December 24, 
2003, the second sentence of this paragraph (b)(2)(iii)(a) is stayed 
indefinitely. The stayed provisions will become effective 
immediately if the court terminates the stay. At that time, EPA will 
publish a document in the Federal Register advising the public of 
the termination of the stay.


* * * * *
    (55) * * *


    Note to paragraph (b)(55): By a court order on December 24, 
2003, this paragraph (b)(55) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


    (56) * * *


    Note to paragraph (b)(56): By a court order on December 24, 
2003, this paragraph (b)(56) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


    (57) * * *

    Note to paragraph (b)(57): By a court order on December 24, 
2003, this paragraph (b)(57) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


    (58) * * *


    Note to paragraph (b)(58): By a court order on December 24, 
2003, this paragraph (b)(58) is stayed indefinitely. The stayed 
provisions will become effective immediately if the court terminates 
the stay. At that time, EPA will publish a document in the Federal 
Register advising the public of the termination of the stay.


* * * * *
    (cc) * * *


    Note to paragraph (cc): By a court order on December 24, 2003, 
this paragraph (cc) is stayed indefinitely. The stayed provisions 
will become effective immediately if the court terminates the stay. 
At that time, EPA will publish a document in the Federal Register 
advising the public of the termination of the stay.


* * * * *
[FR Doc. 04-14989 Filed 6-30-04; 8:45 am]
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