[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Proposed Rules]
[Pages 82234-82238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33592]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2010-0943; FRL-9614-6]
RIN 2060-AQ55


Amendments to Delegation of Authority Provisions in the 
Prevention of Significant Deterioration Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is taking action to propose amendments to the New 
Source Review (NSR) Prevention of Significant Deterioration (PSD) 
program that would correct certain outdated language that currently 
limits EPA's ability to delegate the Federal PSD program to interested 
Indian tribes. This action proposes changes that would provide 
consistency with the current Federal PSD regulatory requirements by 
allowing the EPA to delegate the PSD program to interested tribes for 
their attainment areas. The regulations already authorize 
administrative delegation, and EPA has in the past delegated 
administration of the PSD program to states and local governments for 
their attainment areas. The EPA is proposing to delete a restriction on 
tribes' ability to take delegation of the PSD program and to include 
tribes, along with state and locals, in another section to make it 
clear that tribes may voluntarily take direct delegation of the NSR 
program in areas that are currently attaining the national ambient air 
quality standards (NAAQS). The rule would not impose any new 
requirements. The EPA is also proposing to correct a minor 
typographical error.

DATES: Comments must be received on or before February 28, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0943, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2010-0943 in the subject line of the message.
     Fax: Send comments to (202) 566-9744, attention Docket ID 
No. EPA-HQ-OAR-2010-0943.
     Mail: Amendments to Delegation of Authority Provisions in 
the PSD program Docket, Environmental Protection Agency, Mailcode: 
6102T, 1200 Pennsylvania Ave. NW., Washington, DC 20460, Attention 
Docket ID No. EPA-HQ-OAR-2010-0943.
     Hand Delivery: The EPA Docket Center, Public Reading Room, 
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460, 
Attention Docket ID No. EPA-HQ-OAR-2010-0943. 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 Docket ID No. EPA-HQ-OAR-
2010-0943. 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 email. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means the EPA will not know 
your identity or contact information unless you provide it in the body 
of your

[[Page 82235]]

comment. If you send an email comment directly to the EPA without going 
through http://www.regulations.gov, your email 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, the 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 the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
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.
    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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Amendments to 
Delegation of Authority Provisions in the PSD Program Docket, EPA/DC, 
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 564-1742.

FOR FURTHER INFORMATION CONTACT: Regina Chappell, Outreach and 
Information Division, Office of Air Quality Planning and Standards, 
Mail Code C-304-03, Environmental Protection Agency, Research Triangle 
Park, NC 27711; telephone number: (919) 541-3650; fax number: (919) 
541-0942; email: [email protected].

SUPPLEMENTARY INFORMATION: The supplementary information in this 
preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments to the EPA?
    1. Submitting CBI
    2. Tips for Preparing Your Comments
    C. Where can I get a copy of this document?
II. Background Information for Proposed Rule
    A. What is the New Source Review Program?
    B. What is the statutory authority and regulatory approach for 
this proposed action?
    C. Why is this action needed?
III. Summary of Proposed Amendments
IV. Summary of Impacts of Proposed Amendments
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory 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 Risks 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

I. General Information

A. Does this action apply to me?

    Generally, this rule only applies to tribal governments. It removes 
a restriction relating to delegation of the Federal NSR PSD program and 
allows, but does not require, interested tribes to request such 
delegation for sources in their attainment areas. It does not make 
changes to the underlying Federal PSD program requirements and thus 
should not have significant impact on new or modified sources.

B. What should I consider as I prepare my comments to the EPA?

    1. Submitting CBI. Do not submit this information to the EPA 
through http://www.regulations.gov or email. 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 the 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.
    Send or deliver information identified as CBI only to the following 
address: Roberto Morales, OAQPS Document Control Officer (C404-02), 
Office of Air Quality Planning and Standards, Environmental Protection 
Agency, Research Triangle Park, North Carolina 27711, Attention Docket 
ID No. EPA-HQ-OAR-2010-0943.
    2. Tips for Preparing Comments. When submitting 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.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     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?

    In addition to being available in the docket, an electronic copy of 
this action will also be available on the Worldwide Web (WWW). 
Following signature, a copy of this final action will be posted in the 
regulations and standards section of the NSR home page located at 
http://www.epa.gov/nsr/, on the Tribal air home page at http://www.epa.gov/oar/tribal and on the Technology Transfer Network (TTN) 
policy and guidance page for newly proposed or promulgated rules at the 
following address: http://www.epa.gov/ttn/oarpg/. The TTN provides 
information and technology exchange in various areas of air pollution 
control.

II. Background Information for Proposed Amendments

A. What is the New Source Review Program

    The major NSR program contained in parts C and D of title I of the 
Clean Air Act is a preconstruction review and permitting program 
applicable to new major sources and major modifications at such 
sources. In areas meeting the

[[Page 82236]]

NAAQS (``attainment'' areas) or for which there is insufficient 
information to determine whether they meet the NAAQS 
(``unclassifiable'' areas), the NSR requirements under part C of title 
I of the Act apply. We call this portion of the major NSR program the 
``Prevention of Significant Deterioration'' or PSD program. In areas 
not meeting the NAAQS and in ozone transport regions (OTR), the major 
NSR program is implemented under the requirements of part D of title I 
of the Act. We call this program the ``nonattainment'' major NSR 
program. We have promulgated rules in 40 CFR 52.21 to implement PSD in 
portions of the country that do not have approved state or tribal PSD 
programs. This proposed action makes corrections to the PSD program in 
40 CFR 52.21.

B. What is the statutory authority and regulatory approach for this 
proposed action?

    The authority for this proposed action is Clean Air Act Section 
301(a). EPA notes that Clean Air Act Section 301(d) (which postdates 
the original regulation that established 52.21(u)) and its implementing 
regulations under the Tribal Authority Rule (TAR) at 40 CFR 49.6 and 
49.7 allow tribes to seek approval for such programs covering their 
reservations or other areas within their jurisdiction. These provisions 
also establish the criteria tribes must meet and the types of 
information that must be included in tribal applications to obtain 
eligibility to administer tribal programs, including Tribal 
Implementation Plans and tribal NSR programs. The TAR allows tribes to 
seek approval for such programs covering their reservations or other 
areas within their jurisdiction.
    However, although section 301(d) of the Act and the TAR authorize 
the EPA to review and approve tribal programs, neither the Act nor the 
regulations require EPA approval of tribal programs as the sole 
mechanism available for tribal agencies to take on permitting 
responsibilities. Some tribes may choose not to develop tribal NSR 
programs for submission to the EPA for approval under the TAR, but may 
still wish to assist the EPA in implementing all or some portion of the 
Federal PSD program for their area of Indian country. Accordingly, we 
are exercising our discretion to propose corrections for 40 CFR 52.21, 
which will remove a restriction that had prevented EPA from delegating 
administration of the Federal PSD program to interested tribal agencies 
for their attainment areas. By administering the Federal program 
through a delegation, tribal agencies may remain appropriately involved 
in implementation of an important air quality program and may develop 
their own capacity to manage such programs in the future should they 
choose to do so. Removing this restriction is consistent with EPA's 
existing and well-established procedures for delegating administration 
of Federal CAA programs, including existing provisions at 40 CFR 52.21 
(u)--which already provides for administrative delegation to state and 
local agencies, but which currently prevents delegation to interested 
tribes--40 CFR 71.4(j) and 71.10 (Federal operating permits), 40 CFR 
49.122 (Federal air rules for Indian reservations in the Pacific 
Northwest), and 40 CFR 49.161 and 49.173 (NSR rules for Indian 
country).

C. Why is this action needed?

    This action will enable EPA to delegate the Federal PSD program (40 
CFR 52.21(u)) to interested Indian tribes. This action is consistent 
with existing PSD regulatory requirements, which already provide for 
delegation of administration of the program, and makes that opportunity 
available to tribes by allowing EPA to delegate administration of the 
PSD program to interested tribes.

III. Summary of Proposed Amendments

    We are proposing to amend the NSR PSD program provisions at 40 CFR 
52.21, paragraph (u) Delegation of Authority. In paragraph (u)(1), we 
are correcting an erroneous cross reference and deleting a cross 
reference that is no longer needed. In paragraph (u)(2)(i), the current 
provisions state that the delegate agency shall consult with the 
appropriate state and local air pollution control agency. We are 
proposing to include tribes along with state and local air pollution 
control agencies in this provision to provide equivalent involvement 
for tribal air pollution control agencies. The paragraph (u)(3) 
provision for reviewing a source or modification located on an Indian 
Reservation states that the review authority shall not be redelegated 
other than to an EPA Regional Office except where the state has assumed 
jurisdiction over such land would no longer be in effect upon EPA 
amending subsection (u). We are proposing to delete paragraph (u)(3) to 
remove this restriction which had prevented EPA from delegating the PSD 
program to interested tribes, and to redesignate current paragraph 
(u)(4) as new paragraph (u)(3). These amendments will provide 
appropriate opportunities for interested tribes to seek delegation of 
the Federal PSD program over relevant sources and modifications in 
their areas.

IV. Summary of Impacts of Proposed Amendments

    This action will allow, but not require, interested tribes to take 
direct delegation of the Federal PSD program. It does not make changes 
to the underlying Federal requirement (meaning the requirement that the 
EPA must implement the program where delegation does not occur) and 
thus should not have a significant impact on new or modifying sources.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory 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 Orders 12866 and 
13563 (76 FR 3281, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action only allows tribes to implement an existing program. This 
action does not change the underlying Federal requirements; it will 
allow interested tribes to accept delegation. However, the Office of 
Management and Budget (OMB) has previously approved the information 
collection requirements contained in the existing regulations 40 CFR 
52.21 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 Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule would not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions.
    For the 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 regulations at 13 CFR 121.201; 
(2) a small

[[Page 82237]]

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. Small 
entities will not incur any adverse impacts as a result of this rule 
because this action does not create any new requirements or burdens. No 
costs are associated with these amendments to part 52. This proposed 
rule will not impose any requirements on small entities. 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 contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any state, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    This action 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. This action will 
allow tribes to voluntarily take delegation of the PSD requirements but 
does not require them to do so.

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 Executive Order 13132. The EPA has implementing authority 
for 40 CFR part 52 for Indian country. This action allows interested 
tribes to take delegation of the Federal program if they choose; it 
does not modify the responsibility of the EPA to implement the program 
where no delegation occurs. Thus, EO 13132 does not apply to this 
action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between the EPA and state and local 
governments, the EPA specifically solicits comment on this proposed 
action from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000) EPA may not issue a regulation that has tribal implications, that 
imposes substantial direct compliance costs, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by tribal governments, or 
the EPA consults with tribal officials early in the process of 
developing the proposed regulation and develops a tribal summary impact 
statement.
    The EPA has concluded that this action will have tribal 
implications. However, it will neither impose substantial direct 
compliance costs on tribal governments, nor preempt Tribal law. This 
proposed rule does not impose any requirements on tribes so it does not 
impose substantial direct costs. However, it does support tribal self-
governance by enabling tribes to implement the Federal PSD program as 
the EPA's delegate, if they choose.
    The EPA consulted with tribal officials early in the process of 
developing this regulation to permit them to have meaningful and timely 
input into its development. Tribal consultation was offered in a 
consultation letter to all federally recognized tribes on November 10, 
2011. We will provide consultation to those tribes who request 
consultation. We have also participated in various tribal meetings 
attended by tribal environmental professionals, i.e., National Tribal 
Air Association (NTAA), National Tribal Forum (NTF). We have received 
no adverse comments when this proposal was presented at those various 
meetings. The EPA specifically solicits additional comment on this 
proposed action from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA Interprets Executive Order 13045 (62 FR 19885, April 23, 
1977) as applying to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

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 the 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 specification, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs the 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, the 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 (EO) 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.
    The 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 does not 
affect the level of protection provided to human health or the 
environment. This proposed rule imposes no new requirements but does 
allow interested tribes to accept delegation of the existing Federal 
program.

[[Page 82238]]

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Indians, Indians--
law, and Indians--tribal government.

    Dated: December 22, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, the Environmental 
Protection Agency proposes to amend 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

    2. Amend Sec.  52.21 by revising paragraphs (u)(1) and (u)(2)(i) 
and by removing paragraph (u)(3) and redesignating paragraph (u)(4) as 
paragraph (u)(3) to read as follows:


Sec.  52.21  Prevention of significant deterioration of air quality.

* * * * *
    (u) Delegation of authority. (1) The Administrator shall have the 
authority to delegate his responsibility for conducting source review 
pursuant to this section, in accordance with paragraph (u)(2) of this 
section.
    (2) * * *
    (i) Where the delegate agency is not an air pollution control 
agency, it shall consult with the appropriate state, tribe, and local 
air pollution control agency prior to making any determination under 
this section. Similarly, where the delegate agency does not have 
continuing responsibility for managing land use, it shall consult with 
the appropriate state, tribe, and local agency primarily responsible 
for managing land use prior to making any determination under this 
section.
* * * * *
[FR Doc. 2011-33592 Filed 12-29-11; 8:45 am]
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