[Federal Register Volume 72, Number 113 (Wednesday, June 13, 2007)]
[Rules and Regulations]
[Pages 32526-32529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11289]


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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.

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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 Nonattainment 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: [email protected].

SUPPLEMENTARY INFORMATION:

I. 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 a             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 Mills.......................        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.
------------------------------------------------------------------------
a 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 a guide 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 PCP containing 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

[[Page 32527]]

Court's opinion specifically addressed the CU and PCP provisions in 
Sec.  52.21, but not the provisions in Sec. Sec.  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 good 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 comment 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 contrary 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 Sec.  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 Sec.  51.166) or part D (nonattainment NSR permit program in 
Sec.  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 \1\ 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.
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    \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.''
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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 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 re-determine 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 U.S.C. 804(2).

[[Page 32528]]

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.

0
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]

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--[Amended]

0
2. Section 51.165 is amended as follows:
0
a. By removing and reserving paragraph (a)(1)(v)(C)(8).
0
b. By removing paragraph (a)(1)(vi)(C)(3).
0
c. By removing paragraph (a)(1)(vi)(E)(5).
0
d. By removing and reserving paragraph (a)(1)(xxv).
0
e. By removing and reserving paragraph (a)(1)(xxix).
0
f. By removing and reserving paragraph (a)(2)(ii)(E).
0
g. By revising paragraph (a)(2)(ii)(F).
0
h. By removing paragraph (a)(2)(iv).
0
i. By removing and reserving paragraphs (a)(3)(ii)(H) and (I).
0
j. By revising paragraph (a)(6) introductory text.
0
k. By removing and reserving paragraphs (c), (d), and (e).


Sec.  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 modification may result in a significant emissions 
increase and the owner or operator elects to use the method specified 
in paragraphs (a)(1)(xviii)(B)(1) 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.
* * * * *

0
3. Section 51.166 is amended as follows:
0
a. By removing and reserving paragraph (a)(7)(iv)(e).
0
b. By revising paragraph (a)(7)(iv)(f).
0
c. By removing paragraph (a)(7)(vi).
0
d. By removing and reserving paragraph (b)(2)(iii)(h).
0
f. By removing paragraph (b)(3)(vi)(d).
0
g. By removing and reserving paragraph (b)(31).
0
h. By removing and reserving paragraph (b)(41).
0
i. By revising paragraph (r)(6) introductory text.
0
j. By removing and reserving paragraphs (t), (u), and (v).


Sec.  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]

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

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

Subpart A--[Amended]

0
5. Section 52.21 is amended as follows:
0
a. By removing and reserving paragraph (a)(2)(iv)(e).
0
b. By revising paragraph (a)(2)(iv)(f).

[[Page 32529]]

0
c. By removing paragraph (a)(2)(vi).
0
d. By removing and reserving paragraph (b)(2)(iii)(h).
0
e. By removing paragraph (b)(3)(vi)(d).
0
f. By removing and reserving paragraph (b)(32).
0
g. By removing and reserving paragraph (b)(42).
0
h. By revising paragraph (r)(6) introductory text.
0
j. By removing and reserving paragraphs (x), (y), and (z)


Sec.  52.21  Prevention of significant deterioration of air quality.

    (a) * * *
    (2) * * *
    (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)(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 major 
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 6560-50-P