[Federal Register Volume 79, Number 76 (Monday, April 21, 2014)]
[Rules and Regulations]
[Pages 22028-22032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08919]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2010-0943; FRL-9909-19-OAR]
RIN 2060-AQ55


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating 
amendments to the New Source Review (NSR) Prevention of Significant 
Deterioration (PSD) program that amend certain outdated language that 
limited the EPA's ability to delegate the federal PSD program to 
interested Indian tribes. This final action provides 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 EPA regulations already provide for the administrative 
delegation of the PSD program to state and local governments for their 
attainment areas and administrative delegation of the nonattainment NSR 
program to states, tribes and local governments. This final rule 
deletes a restriction on tribes' ability to take delegation of the PSD 
program and includes tribes, along with state and local governments, to 
make it clear that tribes, as well as states and local governments, may 
voluntarily request and assume direct delegation of the NSR program in 
areas that are currently attaining the national ambient air quality 
standards (NAAQS). This final rule does not create any new 
requirements.

DATES: This final rule is effective April 21, 2014.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2010-0943. All documents in the docket are 
listed on the www.regulations.gov Web site. 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 
www.regulations.gov or in hard copy at the EPA's Docket Center, Public 
Reading Room, EPA West, Room 3334, 1301

[[Page 22029]]

Constitution Avenue NW., Washington, DC 20004. 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.

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 address: [email protected].

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

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document?
II. Background Information for This Final Rule
    A. What is the New Source Review Program?
    B. What is the statutory authority and regulatory approach for 
this final rule?
    C. Why is this final action needed?
III. Summary of Final Rule
IV. Summary of Impacts of the Amendments
V. Summary of Public Comments and the EPA Responses
VI. 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
    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

    Generally, this final rule applies only to tribal governments. It 
removes a restriction relating to delegation of the federal NSR PSD 
program to tribes 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 any significant impact on new or 
modified sources.

B. 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 This Final Rule

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 (CAA or Act) is a preconstruction review and permitting 
program applicable to new major sources and major modifications at 
existing sources. In areas designated as meeting the NAAQS 
(``attainment'' areas) or for which there is insufficient information 
to determine whether they meet the NAAQS (``unclassifiable'' or 
``unclassifiable/attainment'' 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 the 
PSD program in portions of the country that do not have approved state 
or tribal PSD programs. This final rule amends 40 CFR 52.21.

B. What is the statutory authority and regulatory approach for this 
final rule?

    The authority for this proposed action is the CAA section 301(a). 
The EPA notes that CAA section 301(d) (which postdates the original 
regulation that established Sec.  52.21(u), a provision that is being 
amended by this rule) 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.
    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 the 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 their own 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 amending 
40 CFR 52.21 to remove a restriction that has prevented the 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 the 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 air 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 final action needed?

    This final action enables the 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 to states, and 
makes that opportunity available to interested tribes.

[[Page 22030]]

III. Summary of Final Rule

    This rule amends 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 provisions stated 
that the delegate agency shall consult with the appropriate state and 
local air pollution control agency. We have included tribes along with 
state and local air pollution control agencies in this provision to 
provide equivalent involvement for tribal air pollution control 
agencies. Paragraph (u)(3) was deleted to remove the restriction that 
stated the Administrator shall not redelegate review authority to 
anyone other than an EPA Regional Office except where the state has 
assumed jurisdiction over such land. This restriction had prevented the 
EPA from delegating the PSD program to interested tribes and will no 
longer be in effect once paragraph (u) is amended. Paragraph (u)(4) was 
designated as the new paragraph (u)(3). These changes 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 the Amendments

    This final 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 that the EPA must 
implement the program where delegation does not occur and thus should 
not have a significant impact on new or modified sources.
    The EPA has administered the delegation process under Sec.  
52.21(u) for the federal PSD Program and the EPA intends to continue 
using the same approach when applying this provision to tribal 
governments. The provision now designated as Sec.  52.21(u) has been in 
place, in one form or another, since the federal Prevention of 
Significant Air Quality Deterioration rule was first promulgated in 
1974. (See 39 FR 42510, 42517, December 5, 1974; 45 FR 33290, May 19, 
1980.) Over time, the EPA has used that provision to successfully 
delegate authority to implement the Federal PSD Program to numerous 
state and local air pollution control agencies. See e.g. 46 FR 9580, 
Jan. 29, 1981 (delegations to states in Region 5). Those delegations 
are authorized by the EPA's Regional Offices. The process for 
delegating programs varies somewhat from Region to Region. Regardless 
of the exact process used, however, the specifics of the delegation are 
embodied in a formal delegation agreement. The agreement becomes 
effective when signed by the Regional Administrator and the state or 
local agency. The EPA believes that the many prior successful 
delegations carried out under Sec.  52.21(u) provide an appropriate 
background of experience for the Agency as it moves forward with 
including interested tribes as potential delegate agencies for purposes 
of the PSD program. The EPA expects that the same procedures that have 
been used with state and local agencies will prove relevant and equally 
successful as tribes begin to seek administrative delegation of the 
Federal PSD Program. Precise details and functions at issue with any 
particular delegation will--as they have been with states and local 
agencies--be memorialized in an applicable written delegation agreement 
between the EPA and the delegated tribal governing body.
    The EPA notes that it has since written additional regulations that 
include somewhat more detailed delegation provisions. With regard to 
delegations to tribes, these include, for instance, the Federal Air 
Rules for Indian Reservations in Idaho, Oregon and Washington and the 
rule titled Review of New Sources and Modifications in Indian Country. 
In those cases, the EPA was establishing new regulatory programs for 
areas of Indian country, including newly-established administrative 
delegation opportunities and procedures. In each case, the EPA provided 
a discussion of the delegation process that was appropriate for the new 
programs. By contrast, as discussed above in the case of Sec.  
52.21(u), the EPA already has a substantial body of experience and 
history applying the provision that one can look to for guidance. The 
EPA believes the various provisions the EPA has established for 
administrative delegations are appropriate for the particular programs 
in which they are included. As a result, some of the more recent 
delegation provisions differ from Sec.  52.21(u) in some respects.

V. Summary of Public Comments and the EPA Responses

    The EPA received a total of five public comments during the 60-day 
open comment period of the proposed rule. Specifically, two were from 
tribes, one from an industry party and two were from private citizens. 
The tribes and private citizens that commented on the proposed rule 
were very supportive of this action. They stated that it was a 
practical rule that would not only allow interested tribes to seek 
delegation of the program but also provide additional opportunities for 
self governance for tribal communities. One industry party commented 
that they support the EPA's efforts to build tribal capacity for 
implementing and enforcing CAA programs and that it is important to 
provide opportunities to tribes to be involved with the implementation 
of CAA programs on tribal lands.
    We agree that this rule is important to increase opportunities for 
involvement of interested tribes in air program implementation and to 
promote self governance for tribal communities. It is designed to 
eliminate a prior limitation on tribal involvement and expand the 
Agency's ability to work with interested tribes on implementation of 
the federal PSD program.
    One tribe commented that there should be agency support and 
outreach to tribes that may not have been involved with this rulemaking 
process to assist them with the implementation of the program. 
Following promulgation, we intend to hold additional conference calls 
and trainings to assist those interested tribes in the delegation 
process.
    We also received comments from one industry party focusing on the 
overall delegation of administrative authority to include legal and 
tribal authority, delegation process and agreement, and TAS 
applicability. This company commented that the CAA does not give the 
EPA legal authority to delegate its federal authority to a state or 
tribe to administer the EPA's federal regulations. We disagree, and 
believe that section 301(a) of the CAA provides clear legal authority 
for administrative delegation as discussed in the Tribal Authority 
rule. They further stated that the Agency's administrative delegation 
provisions in the federal PSD rules must clearly explain that tribal 
law needs only to authorize the applicable tribal agency to administer 
the federal PSD rules and provisions for which it is delegated 
responsibility. The EPA notes that where the Agency delegates 
administration of the federal PSD program to a state, local agency or 
tribe, the program remains applicable to the regulated sources under 
federal legal authority established under the CAA and the EPA's 
regulations.
    Industry commented that the rule must clearly describe the 
delegation process and what the delegation agreement does and does not 
do. The EPA anticipates being consistent with prior delegations to 
states and local agencies, to include processes, scope and limitations, 
and that these would be reflected in a formal delegation agreement. 
Industry also commented that TAS is not required for a delegation

[[Page 22031]]

of administrative authority. The EPA agrees. This amendment will put 
tribes on an equal footing with state and local air pollution control 
agencies for purposes of taking delegation to assist the EPA with 
administration of the federal PSD program.
    The full text of public comments and the EPA's responses to those 
comments can be found in the Amendments to Delegation of Authority 
Provisions in the PSD Program docket (EPA-HQ-OAR-2010-0943).

VI. 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 allows 
interested tribes to accept delegation. 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 the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's 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 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 final 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 this final rule amending part 52. This final 
rule will not impose any requirements on small entities.

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, 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 allows 
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 final 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, E.O. 13132 does not apply 
to this action.

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

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000) the 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 
final rule does not impose any new 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 provided consultation to 17 tribes who requested it. 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 received no adverse comments 
when this action was presented at those various meetings. The EPA 
specifically solicited additional comment on this proposed action from 
tribal officials.
    During development of the proposal, the EPA notified tribes in the 
summer of 2011 of our intent to propose amendments to the delegation of 
authority provisions in the PSD program during a regularly scheduled 
meeting with the NTAA. These NTAA meetings update members of upcoming 
EPA policies and regulations and to receive input from them on the 
effects of these efforts in Indian country.
    The Agency held a consultation call on January 11, 2012, with one 
tribe. Another consultation call was held on January 30, 2012, with 16 
tribes. Tribal comments received during consultations on the proposed 
rule were: tribes indicated they were in favor of the rule; described 
the proposal as a responsible use of an Agency rulemaking; and 
described the proposal as supporting tribal self-governance. The EPA 
considered the additional input from these consultation calls and 
coordination activities, in conjunction with public comments, in this 
final rule development.

[[Page 22032]]

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 only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the E.O. has the potential to influence the regulation. This action is 
not subject to E.O. 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 
E.O. 12866.

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 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 specifications, 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 action does not involve technical standards. Therefore, the 
EPA did not consider 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.
    The EPA has determined that this final 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 final rule imposes no new requirements but does allow 
interested tribes to accept delegation of the existing federal program.

K. 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. The EPA will submit a report containing 
this final rule and other required information to the United States 
Senate, the United States 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 upon 
publication in the Federal Register.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Indians, Indians-
law, and Indians-tribal government; Incorporation by reference.

    Dated: April 11, 2014.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, 40 CFR part 52 is amended 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

0
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. 2014-08919 Filed 4-18-14; 8:45 am]
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