[Federal Register Volume 74, Number 29 (Friday, February 13, 2009)]
[Rules and Regulations]
[Page 7284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3349]



[[Page 7283]]

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Part II





Environmental Protection Agency





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40 CFR Parts 51 and 52



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

  Federal Register / Vol. 74, No. 29 / Friday, February 13, 2009 / 
Rules and Regulations  

[[Page 7284]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2003-0064; FRL-8773-3]
RIN 2060-AL75


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

AGENCY: Environmental Protection Agency.

ACTION: Delay of effective date.

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SUMMARY: In a separate document in the ``Rules'' section of this 
Federal Register, the Environmental Protection Agency (EPA) announced 
the convening of a proceeding for reconsideration of the final rule 
that amends the Prevention of Significant Deterioration (PSD) and 
Nonattainment New Source Review (NSR) regulations addressing 
aggregation published in the Federal Register on January 15, 2009. By 
this action, the EPA is administratively staying and delaying the 
effective date of this rule for 90 days. Thus, the January 15, 2009 
rule will become effective on May 18, 2009.

DATES: The effective date of FR Doc. E9-815, published in the Federal 
Register on January 15, 2009 (74 FR 2376) is delayed to May 18, 2009.

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., 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.

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: [email protected].

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 the Clean Air Act (CAA) 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 three 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).
    On January 30, 2009, the Natural Resources Defense Council (NRDC) 
submitted a petition for reconsideration of the NSR Aggregation 
Amendments as provided for in CAA section 307(d)(7)(B). Under that 
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.
    In addition to receiving the NRDC Petition, we considered two 
memoranda to executive agencies: The January 20, 2009, White House 
memorandum entitled, ``Regulatory Review,'' and the memorandum from the 
Office of Management and Budget entitled, ``Implementation of 
Memorandum Concerning Regulatory Review'' (M-09-08, January 21, 2009) 
(OMB memorandum). These memoranda suggest that agencies consider 
extending for 60 days the effective date of rules that were published 
prior to January 20, 2009 but which have not yet become effective when 
these rules raise substantial questions of law and policy.
    Having considered the objections raised in the NRDC Petition, we 
believe the grounds for at least one of their objections arose after 
the comment period and are of central relevance to the NSR Aggregation 
Amendment. The concerns set forth in the NRDC Petition also raise 
substantial questions of law and policy. In a separate document in the 
``Rules'' section of this Federal Register, we are announcing the 
convening of a proceeding for reconsideration of the NSR Aggregation 
Amendments. Due to the unique procedural rights granted under CAA 
section 307(d)(7)(B), including the right to request a hearing and the 
obligation to keep the record for the hearing open for 30 days, we 
believe that a 90-day stay of effectiveness is more appropriate than 
the shorter period recommended in ``Regulatory Review'' and the OMB 
memorandum.

II. Issuance of a Stay and Delay of Effective Date

    The EPA hereby issues a three-month (90-day) administrative stay of 
the effectiveness of the NSR Aggregation Amendments. We will follow the 
notice and comment procedures under CAA 307(d), including providing an 
opportunity for a hearing, and will take appropriate action thereafter. 
To implement this administrative stay, we are delaying the effective 
date of FR Doc. E9-815, published in the Federal Register on January 
15, 2009 (74 FR 2376), to May 18, 2009.

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: February 9, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-3349 Filed 2-12-09; 11:15 am]
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