[Federal Register Volume 75, Number 28 (Thursday, February 11, 2010)]
[Proposed Rules]
[Pages 6823-6827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2965]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2004-0014: FRL-9113-1]
RIN 2060-AP73


Prevention of Significant Deterioration (PSD) and Nonattainment 
New Source Review (NSR): Reconsideration of Inclusion of Fugitive 
Emissions; Proposal for Additional Stay

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to put in place an additional 18-month 
stay to the existing stay of the inclusion of fugitive emissions 
requirements in the federal Prevention of Significant Deterioration 
(PSD) program published in the Federal Register on December 19, 2008, 
in the final rule entitled, ``Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NSR): Reconsideration of 
Fugitive Emissions'' (``Fugitive Emissions Rule''). The Fugitive 
Emissions Rule under the federal PSD program requires that fugitive 
emissions be included in determining whether a physical or operation 
change results in a major modification only for sources in industries 
that have been designated through rulemaking under section 302(j) of 
the Clean Air Act (Act or CAA).
    The existing stay is in effect for three months; that is, from 
December 31, 2009, until March 31, 2010. This action proposes to put in 
place an additional stay for 18 months, which we believe will allow for 
sufficient time for EPA to propose, take public comment on, and issue a 
final action concerning the inclusion of fugitive emissions in the 
Federal PSD program.

DATES: Comments must be received on or before March 15, 2010.
    Public Hearing. If anyone contacts EPA requesting the opportunity 
to speak at a public hearing concerning the proposed regulation by 
February 22, 2010, we will hold a public hearing on February 26, 2010. 
If a hearing is held, the record for the hearing will remain open until 
March 29, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2004-0014, 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://

[[Page 6824]]

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, 
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: Ms. Carrie Wheeler, Air Quality Policy 
Division, (C504-03), U.S. Environmental Protection Agency, Research 
Triangle Park, NC, 27711; telephone number (919) 541-9771; 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 potentially affected by this action include sources in all 
industry groups. The majority of sources potentially affected are 
expected to be in the following groups.

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             Industry group                              SIC \a\                            NAICS \b\
----------------------------------------------------------------------------------------------------------------
Electric Services.......................  491..................................  221111, 221112, 221113, 221119,
                                                                                  221121, 221122.
Petroleum Refining......................  291..................................  324110.
Industrial Inorganic Chemicals..........  281..................................  325181, 325120, 325131, 325182,
                                                                                  211112, 325998, 331311,
                                                                                  325188.
Industrial Organic Chemicals............  286..................................  325110, 325132, 325192, 325188,
                                                                                  325193, 325120, 325199.
Miscellaneous Chemical Products.........  289..................................  325520, 325920, 325910, 325182,
                                                                                  325510.
Natural Gas Liquids.....................  132..................................  211112.
Natural Gas Transport...................  492..................................  486210, 221210.
Pulp and Paper Mills....................  261..................................  322110, 322121, 322122, 322130.
Paper Mills.............................  262..................................  322121, 322122.
Automobile Manufacturing................  371..................................  336111, 336112, 336211, 336992,
                                                                                  336322, 336312, 336330,
                                                                                  336340, 336350, 336399,
                                                                                  336212, 336213.
Pharmaceuticals.........................  283..................................  325411, 325412, 325413, 325414.
Mining..................................  211, 212, 213........................  21.
Agriculture, Fishing and Hunting........  111, 112, 113, 115...................  11.
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\a\ Standard Industrial Classification
\b\ North American Industry Classification System.

    Entities potentially affected by the subject rule for this proposed 
action also include state, local, and tribal governments.

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-2004-0014. 
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

[[Page 6825]]

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 Reviews
    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 December 19, 2008, the EPA (``we'') issued a final rule revising 
our requirements of the major NSR programs regarding the treatment of 
fugitive emissions (``Fugitive Emissions Rule''). 73 FR 77882. The 
final rule required fugitive emissions to be included in determining 
whether a physical or operational change results in a major 
modification only for sources in industries that have been designated 
through rulemaking under section 302(j) of the Act. The final rule 
amended all portions of the major NSR program regulations: Permit 
requirements, the PSD program, and the emission offset interpretive 
ruling.
    On February 17, 2009, the Natural Resources Defense Council (NRDC) 
submitted a petition for reconsideration of the December 2008 final 
rule as provided for in CAA 307(d)(7)(B).\1\
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    \1\ John Walke, NRDC, EPA-HQ-OAR-2004-0014-0060.
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    On April 24, 2009, we responded to the February 17, 2009, petition 
by letter indicating that we were convening a reconsideration 
proceeding for the inclusion of fugitive emissions challenged in the 
petition and granting a 3-month administrative stay of the rule 
contained in the federal PSD program at 40 CFR parts 51 and 52. The 
letter also indicated that we would publish a notice of proposed 
rulemaking ``in the near future'' to address the specific issues for 
which we are granting reconsideration.\2\
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    \2\ Lisa Jackson, US EPA, EPA-HQ-OAR-2004-0014-0062.
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    The administrative stay of the Fugitive Emissions Rule became 
effective on September 30, 2009. See 74 FR 50115, FR Doc. E9-23503. As 
noted above, our authority under section 307(d)(7)(B) to stay a rule or 
portion thereof solely under the Administrator's discretion is limited 
to 3 months. When we have issued similar administrative stays in the 
past, it has often been our practice to also propose an additional 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. An interim 
final determination was made to provide an additional stay for 3 
months. This additional stay became effective on December 31, 2009. See 
74 FR 65692. In this case, we believe that an additional stay for 18 
months would provide adequate time for EPA to propose, take comment on, 
and issue a final action on issues that are associated with the 
inclusion of fugitive emissions provisions. Therefore, we propose to 
put in place an additional stay of the fugitive emissions provisions 
contained in the Federal PSD program at 40 CFR parts 51 and 52 
indefinitely. As alternatives, we also solicit comment on different 
time periods for the extension of the stay: (1) for 12 months, until 
February 11, 2011; or (2) for 24 months, until February 11, 2012.
    Note that we are not taking comment at this time on any substantive 
issues concerning any of the provisions subject to the reconsideration. 
This notice simply proposes to put in place an additional stay, so 
comments should be limited to the issue of whether and how long to add 
to the existing administrative stay. A separate Federal Register notice 
published in the near future will specifically solicit comment on 
issues related to the reconsideration of the inclusion of fugitive 
emissions contained in the December 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 put 
in place an additional stay for 18 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-
0003. 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

[[Page 6826]]

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 additional stay 
to the regulations at 40 CFR parts 51 and 52 concerning the inclusion 
of fugitive emissions. 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 put in place an additional stay of the regulations at 40 
CFR parts 51 and 52 concerning the inclusion of fugitive emissions. 
Thus, this rule is not subject to the requirements of sections 202 or 
205 of the Unfunded Mandates Reform Act (UMRA).
    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

    This action 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 put in place an 
additional stay of the regulations at 40 CFR parts 51 and 52 concerning 
the inclusion of fugitive emissions. 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 put in place an additional 
stay of the regulations at 40 CFR parts 51 and 52 concerning the 
inclusion of fugitive emissions. 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 EO 
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 put in place an additional stay 
of the regulations at 40 CFR parts 51 and 52 concerning the inclusion 
of fugitive emissions.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 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 
disproportionately high and adverse human health or environmental 
effects on minority or low income populations because it only seeks to 
put in place an additional stay of the regulations at 40 CFR parts 51 
and 52 concerning the inclusion of fugitive emissions.

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

[[Page 6827]]

notice is also subject to section 307(d) of the CAA (42 U.S.C. 
7407(d)).

List of Subjects

40 CFR Part 51

    Administrative practices and procedures, Air pollution control, 
Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Transportation, Volatile 
organic compounds.

40 CFR Part 52

    Administrative practices and procedures, Air pollution control, 
Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Transportation, Volatile 
organic compounds.

    Dated: February 4, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-2965 Filed 2-10-10; 8:45 am]
BILLING CODE 6560-50-P