[Federal Register Volume 74, Number 188 (Wednesday, September 30, 2009)]
[Rules and Regulations]
[Pages 50115-50118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23503]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2004-0014; FRL-8937-8]


Prevention of Significant Deterioration (PSD) and Nonattainment 
New Source Review (NSR): Reconsideration of Inclusion of Fugitive 
Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; notice of grant of reconsideration and 
administrative stay of regulation.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
providing notice that through a letter signed by the Administrator on 
April 24, 2009, EPA granted a petition for reconsideration of the final 
rule titled, ``Prevention of Significant Deterioration (PSD) and 
Nonattainment New Source Review (NSR): Reconsideration of Inclusion of 
Fugitive Emissions,'' published on December 19, 2008 (Fugitive 
Emissions Rule). EPA's decision to reconsider was in response to a 
request made by Natural Resources Defense Council (NRDC) in a letter 
dated February 17, 2009.

DATES: The amendments to 40 CFR parts 51 and 52 in this rule are 
effective from September 30, 2009 through December 30, 2009. Effective 
September 30, 2009, the following CFR sections are administratively 
stayed until December 30, 2009: 40 CFR 51.165(a)(1)(v)(G), 
(a)(1)(vi)(C)(3), (a)(1)(ix), (a)(1)(xxviii)(B)(2), 
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), 
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii), 
(a)(6)(iv), and (f)(4)(i)(D); 40 CFR 51.166, (a)(7)(iv)(b), (b)(2)(v), 
(b)(3)(iii)(c), (b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b), 
(b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), 
(b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and (w)(4)(i)(d); 40 CFR part 
51, Appendix S, paragraphs II.A.5(vii), II.A.6(iii), II.A.9, 
II.A.24(ii)(b), II.A.24(ii)(d), II.A.30(i)(a), II.A.30(ii)(a), 
II.A.30(iii), II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and 
IV.K.4(i)(d); and 40 CFR 52.21, (a)(2)(iv)(b), (b)(2)(v), 
(b)(3)(iii)(b), (b)(3)(iii)(c), (b)(20), (b)(41)(ii)(b), 
(b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), 
(b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and (aa)(4)(i)(d).

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Wheeler, Air Quality Policy 
Division, (C504-03), U.S. Environmental Protection Agency, Research 
Triangle Park, NC, 27711; telephone number: (919) 541-9771; or e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background Information

    In addition to granting the petition for reconsideration in the 
April 24, 2009 letter, EPA indicated that it was administratively 
staying the rule for three months from the date of the letter. Since 
the initial decision to grant the stay, EPA has learned that under the 
present circumstances and in accordance with the Office of Federal 
Register's regulations, the effective date of the administrative stay 
of the Fugitive Emissions Rule must be a date on or after publication 
of notice announcing the stay in the Federal Register. As a result, EPA 
is announcing that the corrected effective date of the stay is the date 
of publication of this notice. This stay of the Fugitives Emissions 
Rule will be effective for a period of three months beginning with the 
publication of this document in the Federal Register. To effectuate 
this stay of the December 19, 2008 rule, we are reinstating previous 
provisions on a temporary basis. The EPA will publish a document in the 
Federal Register establishing a comment period and opportunity for a 
public hearing for the reconsideration proceeding.
    The petition for reconsideration and request for administrative 
stay can be found in the docket for the December 19, 2008 rule. EPA's 
April 24, 2009 letter responding to NRDC's request for reconsideration 
is also in the docket. EPA considered the petition for reconsideration 
and request for stay, along with information contained in the 
rulemaking docket, in reaching a decision on both the reconsideration

[[Page 50116]]

and the stay of the Fugitives Emissions Rule.

II. How Can I Get Copies of This Document and Other Related 
Information?

    This Federal Register document, the petition for reconsideration 
and the letter granting reconsideration and an administrative stay of 
the effectiveness of the Fugitive Emissions Rule are available in the 
docket for the final rule titled ``Prevention of Significant 
Deterioration (PSD) and Nonattainment New Source Review (NSR): 
Reconsideration of Inclusion of Fugitive Emissions,'' published on 
December 19, 2008 at 73 FR 77882, under Docket ID No. EPA-HQ-OAR-2004-
0014. The table below identifies the petitioner, the date EPA received 
the petition, the document identification number for the petition, the 
date of EPA's response, and the document identification number for 
EPA's response.

----------------------------------------------------------------------------------------------------------------
                                                                  Petition:                       EPA response:
                 Petitioner                       Date of      Document No. in    Date of EPA    Document No. in
                                              petition to EPA       docket          response          docket
----------------------------------------------------------------------------------------------------------------
Natural Resources Defense Council...........       2/17/2009             0060        4/24/2009             0062
----------------------------------------------------------------------------------------------------------------

Note that all document numbers listed in the table are in the form of 
``EPA-HQ-OAR-2004-0014-xxxx.''

    All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some 
information may not be publicly available, i.e., Confidential Business 
Information 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, Docket ID No. EPA-HQ-OAR-2004-0014, EPA West, 
Room 3334, 1301 Constitution Avenue, 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 EPA 
Docket Center is (202) 566-1742.
    In addition to being available in the docket, an electronic copy of 
this Federal Register notice and EPA's response letter to the 
petitioners are also available on the World Wide Web at http://www.epa.gov/nsr.

III. Judicial Review

    Under Clean Air Act section 307(b), judicial review of the Agency's 
decision concerning the stay is available only by filing a petition for 
review in the U.S. Court of Appeals for the District of Columbia 
Circuit on or before November 30, 2009.

    Dated: July 24, 2009.
Lisa P. Jackson,
Administrator.

0
For the reasons discussed in the preamble, the EPA amends 40 CFR parts 
51 and 52 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.


Sec.  51.165  [Amended]

0
2. Effective September 30, 2009, 40 CFR 51.165(a)(1)(v)(G), 
(a)(1)(vi)(C)(3), (a)(1)(ix), (a)(1)(xxviii)(B)(2), 
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), 
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii), 
(a)(6)(iv), and (f)(4)(i)(D) are administratively stayed until December 
30, 2009.

0
3. Effective September 30, 2009 through December 30, 2009, amend 40 CFR 
51.165 to add paragraph (a)(4) to read as follows:


Sec.  51.165  Permit requirements.

    (a) * * *
    (4) Each plan may provide that the provisions of this paragraph do 
not apply to a source or modification that would be a major stationary 
source or major modification only if fugitive emission to the extent 
quantifiable are considered in calculating the potential to emit of the 
stationary source or modification and the source does not belong to any 
of the following categories:
    (i) Coal cleaning plants (with thermal dryers);
    (ii) Kraft pulp mills;
    (iii) Portland cement plants;
    (iv) Primary zinc smelters;
    (v) Iron and steel mills;
    (vi) Primary aluminum ore reduction plants;
    (vii) Primary copper smelters;
    (viii) Municipal incinerators capable of charging more than 250 
tons of refuse per day;
    (ix) Hydrofluoric, sulfuric, or citric acid plants;
    (x) Petroleum refineries;
    (xi) Lime plants;
    (xii) Phosphate rock processing plants;
    (xiii) Coke oven batteries;
    (xiv) Sulfur recovery plants;
    (xv) Carbon black plants (furnace process);
    (xvi) Primary lead smelters;
    (xvii) Fuel conversion plants;
    (xviii) Sintering plants;
    (xix) Secondary metal production plants;
    (xx) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol by 
natural fermentation included in NAICS codes 325193 or 312140;
    (xxi) Fossil-fuel boilers (or combination thereof) totaling more 
than 250 million British thermal units per hour heat input;
    (xxii) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (xxiii) Taconite ore processing plants;
    (xxiv) Glass fiber processing plants;
    (xxv) Charcoal production plants;
    (xxvi) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (xxvii) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
* * * * *


Sec.  51.166  [Amended]

0
4. Effective September 30, 2009, 40 CFR 51.166 (a)(7)(iv)(b), 
(b)(2)(v), b)(3)(iii)(c), (b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b), 
(b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), 
(b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and (w)(4)(i)(d) are 
administratively stayed until December 30, 2009.
    5. Effective September 30, 2009 through December 30, 2009, amend 40 
CFR 51.166 to add paragraph (i)(l)(ii) to read as follows:


Sec.  51.166  Prevention of significant deterioration of air quality.

* * * * *
    (i) * * *
    (1) * * *

[[Page 50117]]

    (ii) The source or modification would be a major stationary source 
or major modification only if fugitive emissions, to the extent 
quantifiable, are considered in calculating the potential to emit of 
the stationary source or modification and such source does not belong 
to any following categories:
    (a) Coal cleaning plants (with thermal dryers);
    (b) Kraft pulp mills;
    (c) Portland cement plants;
    (d) Primary zinc smelters;
    (e) Iron and steel mills;
    (f) Primary aluminum ore reduction plants;
    (g) Primary copper smelters;
    (h) Municipal incinerators capable of charging more than 250 tons 
of refuse per day;
    (i) Hydrofluoric, sulfuric, or nitric acid plants;
    (j) Petroleum refineries;
    (k) Lime plants;
    (l) Phosphate rock processing plants;
    (m) Coke oven batteries;
    (n) Sulfur recovery plants;
    (o) Carbon black plants (furnace process);
    (p) Primary lead smelters;
    (q) Fuel conversion plants;
    (r) Sintering plants;
    (s) Secondary metal production plants;
    (t) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol by 
natural fermentation included in NAICS codes 325193 or 312140;
    (u) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (v) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (w) Taconite ore processing plants;
    (x) Glass fiber processing plants;
    (y) Charcoal production plants;
    (z) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (aa) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act; or
* * * * *


Appendix S to 40 CFR Part 51  [Amended]

0
6. Effective September 30, 2009, 40 CFR part 51, Appendix S, paragraphs 
II.A.5(vii), II.A.6(iii), II.A.9, II.A.24(ii)(b), II.A.24(ii)(d), 
II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii), II.A.30(iv), IV.I.1(ii), 
IV.J.3, IV.J.4, and IV.K.4(i)(d) are administratively stayed until 
December 30, 2009.

0
7. Effective September 30, 2009 through December 30, 2009, amend 
Appendix S to part 51 to add II.F to read as follows:

Appendix S to Part 51--Emission Offset Interpretative Ruling

* * * * *
    II. * * *
    F. Fugitive emission sources. Section IV. A. of this Ruling 
shall not apply to a source or modification that would be a major 
stationary source or major modification only if fugitive emissions, 
to the extent quantifiable, are considered in calculating the 
potential to emit of the stationary source or modification and such 
source does not belong to any following categories:
    (1) Coal cleaning plants (with thermal dryers);
    (2) Kraft pulp mills;
    (3) Portland cement plants;
    (4) Primary zinc smelters;
    (5) Iron and steel mills;
    (6) Primary aluminum ore reduction plants;
    (7) Primary copper smelters;
    (8) Municipal incinerators capable of charging more than 250 
tons of refuse per day;
    (9) Hydrofluoric, sulfuric, or nitric acid plants;
    (10) Petroleum refineries;
    (11) Lime plants;
    (12) Phosphate rock processing plants;
    (13) Coke oven batteries;
    (14) Sulfur recovery plants;
    (15) Carbon black plants (furnace process);
    (16) Primary lead smelters;
    (17) Fuel conversion plants;
    (18) Sintering plants;
    (19) Secondary metal production plants;
    (20) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol 
by natural fermentation included in NAICS codes 325193 or 312140;
    (21) Fossil-fuel boilers (or combination thereof) totaling more 
than 250 million British thermal units per hour heat input;
    (22) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (23) Taconite ore processing plants;
    (24) Glass fiber processing plants;
    (25) Charcoal production plants;
    (26) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (27) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
* * * * *

PART 52--[AMENDED]

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

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


Sec.  52.21  [Amended]

0
9. Effective September 30, 2009, 40 CFR 52.21 (a)(2)(iv)(b), (b)(2)(v), 
(b)(3)(iii)(b), (b)(3)(iii)(c), (b)(20), (b)(41)(ii)(b), 
(b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), 
(b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and (aa)(4)(i)(d), December 30, 
2009.

0
10. Effective September 30, 2009 through December 30, 2009, amend 40 
CFR 52.21 to add (i)(l)(vii) to read as follows:


Sec.  52.21  Prevention of significant deterioration of air quality.

* * * * *
    (i) * * *
    (1) * * *
    (vii) The source or modification would be a major stationary source 
or major modification only if fugitive emissions, to the extent 
quantifiable, are considered in calculating the potential to emit of 
the stationary source or modification and the source does not belong to 
any of the following categories:
    (a) Coal cleaning plants (with thermal dryers);
    (b) Kraft pulp mills;
    (c) Portland cement plants;
    (d) Primary zinc smelters;
    (e) Iron and steel mills;
    (f) Primary aluminum ore reduction plants;
    (g) Primary copper smelters;
    (h) Municipal incinerators capable of charging more than 250 tons 
of refuse per day;
    (i) Hydrofluoric, sulfuric, or nitric acid plants;
    (j) Petroleum refineries;
    (k) Lime plants;
    (l) Phosphate rock processing plants;
    (m) Coke oven batteries;
    (n) Sulfur recovery plants;
    (o) Carbon black plants (furnace process);
    (p) Primary lead smelters;
    (q) Fuel conversion plants;
    (r) Sintering plants;
    (s) Secondary metal production plants;
    (t) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol by 
natural fermentation included in NAICS codes 325193 or 312140;
    (u) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (v) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (w) Taconite ore processing plants;
    (x) Glass fiber processing plants;
    (y) Charcoal production plants;
    (z) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (aa) Any other stationary source category which, as of August 7, 
1980, is

[[Page 50118]]

being regulated under section 111 or 112 of the Act; or
* * * * *

[FR Doc. E9-23503 Filed 9-29-09; 8:45 am]
BILLING CODE 6560-50-P