[Federal Register Volume 74, Number 140 (Thursday, July 23, 2009)]
[Proposed Rules]
[Pages 36427-36430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17541]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2003-0062: FRL-8934-3]
RIN 2060-AP65


Implementation of the New Source Review (NSR) Program for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5); 
Proposal To Extend Administrative Stay

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to extend for an additional nine months 
the existing administrative stay of the ``grandfathering'' provision 
for particulate matter less than 2.5 micrometers (PM2.5) 
requirements in the Federal Prevention of Significant Deterioration 
(PSD) program published in the Federal Register on May 16, 2008 as part 
of the final rule entitled, ``Implementation of the New Source Review 
(NSR) Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5).'' The grandfathering provision under the Federal 
PSD program allows the permitting authority to review PSD permit 
applications received before July 15, 2008 according to EPA's 1997 
policy of satisfying the requirements for particulate matter less than 
10 micrometers (PM10) as a surrogate for meeting the new 
requirements for PM2.5.
    The existing administrative stay is in effect for three months; 
that is, from June 1, 2009 until September 1, 2009. This action 
proposes to extend the existing administrative stay by an additional 
nine months, which we believe will allow for sufficient time for EPA to 
propose, take public comment on, and issue a final action concerning 
the repeal of the grandfathering provision for PM2.5 in the 
Federal PSD program.

DATES: Comments must be received on or before August 24, 2009.
    Public Hearing. If anyone contacts EPA requesting the opportunity 
to speak at a public hearing concerning the proposed regulation by 
August 3, 2009, we will hold a public hearing on August 7, 2009. If a 
hearing is held, the record for the hearing will remain open until 
September 8, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0062, by one of the following methods:
     http://www.regulations.gov. Follow the online instructions 
for submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Environmental Protection 
Agency, Mail code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 
20460.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 
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 the applicable docket. 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.
    Public Hearing. If a public hearing is held, it will be held at the 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20004.
    Docket: 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, 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 http://www.regulations.gov or in hard copy at the EPA Docket Center, Public 
Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC 20460. 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) 566-1742, and the 
telephone number for the Air Docket is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Mr. Dan deRoeck, Air Quality Policy 
Division, (C504-03), U.S. Environmental Protection Agency, Research 
Triangle Park, NC 27711; telephone number (919) 541-5593; fax number 
(919) 541-5509; or e-mail address: [email protected].
    To request a public hearing or information pertaining to a public 
hearing on this document, contact Ms. Pamela Long, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-03), 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number (919) 541-0641; fax number (919) 541-5509; e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Entities affected by this proposed action are the owners and 
operators of proposed new sources and

[[Page 36428]]

modifications who submitted a complete application for a PSD permit 
before the July 15, 2008 effective date of the PM2.5 NSR 
Implementation Rule, but have not yet received their permit to 
construct. EPA estimates that fewer than 20 proposed sources are 
covered by the grandfathering provision that we are proposing to 
repeal. At least two of the projects have already received their permit 
to construct prior to EPA taking action to stay the provision.
    Entities also affected by this proposed rule include State and 
local reviewing authorities and Indian country with new and modified 
major stationary sources affected by this rule.

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

    1. Submitting CBI. Do not submit information containing CBI to EPA 
through http://www.regulations.gov or e-mail. Send or deliver 
information identified as CBI only to the following address: Mr. 
Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA, 
Office of Air Quality Planning and Standards, Research Triangle Park, 
North Carolina 27711, Attention: Docket ID EPA-HQ-OAR-2003-0062. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information in 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 as 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 your comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     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.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     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 proposed rule will also be available on the World Wide Web. 
Following signature by the EPA Administrator, a copy of this final rule 
will be posted in the regulations and standards section of our NSR home 
page located at http://www.epa.gov/nsr.

D. How Can I Find Information About a Possible Public Hearing?

    To request a public hearing or information pertaining to a public 
hearing on this document, contact Ms. Pamela Long, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-03), 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number (919) 541-0641; fax number (919) 541-5509; e-
mail address: [email protected].

E. How Is This Preamble Organized?

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. How Can I Find Information About a Possible Public Hearing?
    E. How Is This Preamble Organized?
II. This Action
III. Statutory and Executive Order Review.
    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 Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and 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 May 16, 2008, the EPA (``we'') issued a final rule amending our 
PSD and nonattainment NSR regulations to add requirements for the 
preconstruction review of PM2.5. 73 FR 28321. The amendments 
addressed the major source threshold, significant emissions rate and 
offset ratios for PM2.5; interpollutant trading for offsets; 
and applicability of NSR to PM2.5 precursors. The rule also 
provided for the transition of the new requirements for 
PM2.5 in the NSR permitting process.
    On February 10, 2009, Earthjustice, on behalf of the Natural 
Resources Defense Council and Sierra Club, submitted a petition for 
reconsideration of four specific provisions of the May 2008 final rule 
as provided for in Clean Air Act (CAA) 307(d)(7)(B).\1\ The specific 
provisions challenged by the petitioners include: (1) A transition 
period for PSD programs in States with approved PSD rules in their 
approved State Implementation Plans (SIPs) to revise and submit their 
new PM2.5 regulations to EPA within three years of the 
publication of the final rule. During the transition period, the rule 
allows States to continue using EPA's 1997 surrogate policy by which an 
analysis based on PM10 can be used to meet the requirements 
for the otherwise required PM2.5; (2) ``grandfathering'' 
under the Federal PSD program for permit applications submitted before 
the July 15, 2008 effective date of the new rule, which allows the 
PM10 surrogate policy to continue to be used as the basis 
for approving such permits for PM2.5; (3) a transition 
period, during which time EPA is re-evaluating its test methods for 
condensable particulate matter (CPM) emissions, whereby States are not 
required to account for CPM in the permitting process; and (4) use of 
recommended interpollutant trading ratios to facilitate the trading of 
PM2.5 precursors emissions reductions for new emissions of 
PM2.5 in areas designated ``nonattainment'' for 
PM2.5.
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    \1\ Paul Cort, Earthjustice, on behalf of the Natural Resources 
Defense Council and Sierra Club, EPA-HQ-OAR-2003-0062-0281.
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    Under CAA 307(d)(7)(B), 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

[[Page 36429]]

Administrator may stay the effectiveness of the rule for up to three 
months during such reconsideration.
    On April 24, 2009, we responded to the February 10, 2009 petition 
by letter indicating that we were convening a reconsideration 
proceeding for all four issues challenged in the petition and granting 
a three-month administrative stay of one of the provisions--the 
grandfathering provision for PM2.5 contained in the Federal 
PSD program at 40 CFR 52.21(i)(1)(xi). The letter also indicated that 
we would publish a notice of proposed rulemaking ``in the near future'' 
to propose repealing the grandfathering provision for PM2.5 
in the Federal PSD program, on the grounds that it was adopted without 
prior public notice and is no longer substantially justified in light 
of the resolution of technical issues with respect to PM2.5 
monitoring, emissions estimation, and air quality modeling that led to 
the PM10 surrogate policy in 1997.
    The administrative stay of the grandfathering provision for 
PM2.5 was issued and became effective on June 1, 2009. See 
74 FR 26098, FR Doc. E9-12575. As noted above, our authority to stay a 
rule or portion thereof solely under the Administrator's discretion is 
limited to three months. When we have issued similar administrative 
stays in the past, it has often been our practice to also propose an 
extension of the stay through a rulemaking process to ensure that there 
is no gap between the end of the stay and the completion of the final 
action. In this case, we believe that an extension of the 
administrative stay for an additional nine months would provide 
adequate time for EPA to propose, take comment on, and issue a final 
action on issues that are associated with the grandfathering provision 
for PM2.5 that we are proposing to repeal. Therefore, we 
propose to extend the administrative stay of the grandfathering 
provision for PM2.5 contained in the Federal PSD program at 
40 CFR 52.21(i)(1)(xi) for an additional nine months, until June 1, 
2010. As alternatives, we also solicit comment on different time 
periods for the extension of the stay: (1) For six months, until March 
1, 2010; or (2) for twelve months, until September 1, 2010.
    Note that we are not taking comment at this time on any substantive 
issues concerning the repeal of the grandfathering provision for 
PM2.5 contained in the Federal PSD program, or on any of the 
other provisions subject to the reconsideration. This notice simply 
proposes to further extend the administrative stay, so comments should 
be limited to the issue of whether and how long to extend the existing 
administrative stay. A separate Federal Register notice published in 
the near future will specifically solicit comment on issues related to 
the repeal of the grandfathering provision for PM2.5 
contained in the Federal PSD program. In yet another subsequent notice, 
we plan to solicit comment on issues related to the remaining three 
provisions of the May 2008 final rule for which the Administrator 
granted reconsideration.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action'' because it raises 
novel legal or policy issues. Accordingly, EPA submitted this action to 
the Office of Management and Budget (OMB) for review under EO 12866 and 
any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This action only proposes to 
extend the existing administrative stay for an additional nine months.
    However, the Office of Management and Budget has previously 
approved the information collection requirements contained in the 
existing regulations under the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-
0033 [EPA ICR No. 1230.21]. 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 rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that 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 rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small 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 impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any new requirements on small entities. 
We have determined that small businesses will not incur any adverse 
impacts because EPA is taking this action to propose an extension of 
the existing administrative stay of one amendment to the regulations at 
40 CFR 52.21 concerning the grandfathering provision that affects fewer 
than 20 major stationary sources. No costs are associated with this 
amendment.
    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 does not contain a 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, and Tribal governments, in the 
aggregate, or the private sector in any one year. This action only 
proposes to extend the existing administrative stay of one provision of 
the regulations at 40 CFR 52.21 concerning the grandfathering provision 
that affects fewer than 20 sources. Thus, this rule is not subject to 
the requirements of sections 202 or 205.
    This proposed rule 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.

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'' is defined in the EO to 
include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the

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distribution of power and responsibilities among the various levels of 
government.''
    This proposed rule does not have federalism implications. It will 
not 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, 
as specified in EO 13132. This action only proposes to extend the 
existing administrative stay of one provision of the regulations at 40 
CFR 52.21 concerning the grandfathering provision for PM2.5 
that affects fewer than 20 sources. Thus, EO 13132 does not apply to 
this rule.
    In the spirit of EO 13132, and consistent with EPA policy to 
promote communications between EPA and State and local governments, EPA 
specifically solicits comment on this proposed rule 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 EO 
13175 (65 FR 67249, November 9, 2000.) This action will not impose any 
new obligations or enforceable duties on Tribal governments. Thus, EO 
13175 does not apply to this action.
    EPA specifically solicits additional comment on this proposed 
action 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 only proposes to extend the existing 
administrative stay of one provision of the regulations at 40 CFR 52.21 
concerning the grandfathering provision for PM2.5 that 
affects fewer than 20 sources. 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 Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This proposal only proposes to extend 
the existing administrative stay of one provision of the regulations at 
40 CFR 52.21 concerning the grandfathering provision for 
PM2.5 that affects fewer than 20 sources.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 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 a 
disproportionately high and adverse human health or environmental 
effect on minority or low-income populations because it only seeks to 
extend the existing administrative stay on one provision in the 
regulations at 40 CFR 52.21 concerning the grandfathering provision for 
PM2.5 that affects fewer than 20 sources.

K. Determination Under Section 307(d)

    Pursuant to sections 307(d)(1)(J) 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 section 
301(a) of the CAA as amended (42 U.S.C. 7601(a)). This notice is also 
subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).

List of Subjects in 40 CFR Part 52

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

    Dated: July 16, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-17541 Filed 7-22-09; 8:45 am]
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