[Federal Register Volume 74, Number 182 (Tuesday, September 22, 2009)]
[Rules and Regulations]
[Pages 48153-48156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22903]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2003-0062; FRL-8961-1]


Implementation of the New Source Review (NSR) Program for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5); Final 
Rule To Stay the Grandfathering Provision for PM2.5

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule

-----------------------------------------------------------------------

SUMMARY: In this final action, EPA is issuing a stay, for nine months, 
on the ``grandfathering'' provision for particulate matter less than 
2.5 micrometers (PM2.5) requirements in the Federal 
Prevention of Significant Deterioration (PSD) program. The 
grandfathering provision was added to the Federal PSD regulations on 
May 16, 2008, as part of the final rule titled, ``Implementation of the 
New Source Review (NSR) Program for Particulate Matter Less Than 2.5 
Micrometers (PM2.5).'' This stay follows an administrative 
stay, which was in effect from June 1, 2009, until September 1, 2009, 
on the same provision. We believe this additional stay will provide 
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: Effective September 22, 2009, 40 CFR 52.21(i)(1)(xi) is stayed 
for a period of nine months, until June 22, 2010.

ADDRESSES: 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].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    Entities affected by this final action are the owners and operators 
of proposed new sources and 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 has estimated that fewer than 20 
proposed sources are covered by the grandfathering provision that is 
being stayed.
    Additional entities affected by this final rule include State and 
local reviewing authorities responsible for issuing the PSD permits to 
the new and modified major stationary sources affected by this rule.

B. 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 final rule is also available on the World Wide Web in the 
regulations and standards section of our NSR home page located at 
http://www.epa.gov/nsr.

C. How is this preamble organized?

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related 
information?
    C. How is this preamble organized?
II. This Action
    A. Background
    B. Final Rule
    C. Comments and Responses
    D. Basis for Making This Rule Effective on the Date of 
Publication
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)
    L. The Congressional Review Act
    M. Basis for Making This Rule Effective on the Date of 
Publication
IV. Statutory Authority

II. This Action

A. Background

    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 (NRDC) 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

[[Page 48154]]

emissions of PM2.5 in areas designated ``nonattainment'' for 
PM2.5.
---------------------------------------------------------------------------

    \1\ Paul Cort, Earthjustice, on behalf of the NRDC and Sierra 
Club, EPA-HQ-OAR-2003-0062-0281.
---------------------------------------------------------------------------

    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 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 3-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 little or no gap between the end of the stay and the completion of 
the final action.\2\
---------------------------------------------------------------------------

    \2\ The use of the word ``extension'' and other forms of 
``extend'' in discussing the stays that follow an administrative 
stay is not intended to indicate that EPA is extending the 
administrative stay beyond the 3-month period authorized by CAA 
307(d)(7)(B). The second stay is a separate stay, and only 
``extends'' the initial administrative stay in the sense that the 
second stay adds to the overall time period during which the 
provision is stayed.
---------------------------------------------------------------------------

B. Final Rule

    In this final rule we are staying the grandfathering provision in 
the Federal PSD regulations for nine months. As described above, the 
same provision was administratively stayed for 3 months; however, that 
stay ended on September 1, 2009. Thus, there is a slight gap between 
the lapse of the administrative stay and the stay being issued under 
this final action. Nevertheless, we believe that the additional stay is 
needed and will 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 are issuing this stay of the grandfathering 
provision for PM2.5 contained in the Federal PSD program at 
40 CFR 52.21(i)(1)(xi) for nine months, until June 22, 2010.

C. Comments and Responses

    When we proposed this stay on July 23, 2009, we did not take 
comment 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. Comments sought were to be limited to the issue of 
whether to establish this additional stay and how long this stay should 
be. 74 FR 36427 at 36429.
    We received three comments on the proposal to establish this 
further stay on the grandfathering provision under the Federal PSD 
program. Only one of these comments, from an environmental 
organization, explicitly addressed the proposed stay. This comment 
supported the 9-month stay for several reasons. First, the commenter 
correctly pointed out that the exemption was promulgated in the final 
rule without undergoing notice and comment. Second, the commenter 
claimed that the grandfathering provision for PM2.5 violates 
the CAA by waiving a core requirement of the CAA that assures source 
compliance with the national ambient air quality standards. In this 
regard, the commenter claimed that ``There is simply no legal argument 
that compliance with the 24-hour PM10 standard * * * 
represents a demonstration that the source will not cause or contribute 
to a violation of either the annual or 24-hour PM2.5 
standards.'' Finally, the commenter claimed that the exemption is 
arbitrary and capricious. In support of this claim, the commenter 
indicated that the technical issues raised in the 1997 Surrogate Policy 
memo have been resolved, and the continued use of a surrogate ``is not 
in fact an accurate and reliable substitute for measuring or showing 
compliance with the PM2.5 standard.''
    One commenter apparently misunderstood the proposal to be an 
extension of the grandfathering provision rather than a continuation of 
the stay of the provision. Based on this misunderstanding, the 
commenter appeared to support the grandfathering provision and an 
extension to it. The remaining commenter did not comment specifically 
on the proposed extension, but instead called upon EPA to ``stop the 
proliferation of fine particulate matter.''
    We agree with the environmental organization commenter that the 
grandfathering provision for PM2.5 was not proposed for 
comment in the November 2005 PM2.5 Implementation Rule 
proposal. This was acknowledged in the Administrator's April 24 letter 
responding to the petitioners. With regard to this commenter's other 
concerns, we plan to issue a separate Federal Register notice 
soliciting comments on issues related to (1) the repeal of the 
grandfathering provision for PM2.5 contained in the Federal 
PSD program, and (2) ending the PM10 Surrogate Policy in 
States with EPA-approved PSD programs in their SIP. In yet another 
subsequent notice, we plan to solicit comment on issues related to the 
remaining two 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

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

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 issues a stay of 
one provision within the final PM2.5 NSR Implementation Rule for 9 
months.
    However, the Office of Management and Budget (OMB) 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

[[Page 48155]]

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 final 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 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 issue a 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.

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 
stays 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 of the 
Unfunded Mandates Reform Act (UMRA).
    This final 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

    This final 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 stays 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.

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.

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 rule stays one provision of the regulations at 40 
CFR 52.21 concerning the grandfathering provision for PM2.5 
that affects fewer than 20 sources.

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

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

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 final rulemaking does not involve technical standards. 
Therefore, EPA is not using 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 final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority and/or low income populations. The rule stays one 
part of the regulations at 40 CFR 52.21 by staying the grandfathering 
provision for PM2.5. The affected sources, after further 
analysis and data collection, may receive permitted emissions limits 
that are equally or more protective of public health than would be 
likely in the absence of this stay.

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.''

L. The 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 to 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective September 22, 2009.

[[Page 48156]]

M. Basis for Making This Rule Effective on the Date of Publication

    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b), generally provides that rules may not take effect earlier than 
30 days after they are published in the Federal Register. However, EPA 
is issuing this final rule under section 307(d)(1) of the CAA, which 
states:

    The provisions of section 553 through 557 * * * of Title 5 shall 
not, except as expressly provided in this section, apply to actions 
to which this subsection applies.

Thus, section 553(d) of the APA does not apply to this rule. EPA is 
nevertheless acting consistently with the policies underlying APA 
section 553(d) in making this rule effective on the date of 
publication. APA section 553(d)(3) provides an exception when the 
agency finds good cause exists for a period less than 30 days before 
effectiveness. We find good cause exists to make this rule effective 
upon publication because doing so alleviates potential administrative 
and regulatory confusion that could arise if the gap between the 
administrative stay that ended on September 1, 2009 and this stay were 
30 days longer.

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

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

    Dated: September 16, 2009.
Lisa P. Jackson,
Administrator.

0
For reasons discussed in the preamble, the EPA amends 40 CFR part 52 as 
follows:

PART 52--[AMENDED]

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

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


Sec.  52.21  [Amended]

0
2. Effective September 22, 2009, in Sec.  52.21, paragraph (i)(1)(xi) 
is stayed until June 22, 2010.

[FR Doc. E9-22903 Filed 9-21-09; 8:45 am]
BILLING CODE 6560-50-P