Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
6560­
50­
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
51
and
52
[
AD­
FRL­__________
;
E­
Docket
ID
No.
OAR­
2002­
0068;
Legacy
Docket
No.
A­
2002­
04]

RIN­

Prevention
of
Significant
Deterioration
(
PSD)
and
Non­
attainment
New
Source
Review
(
NSR):
Equipment
Replacement
Provision
of
the
Routine
Maintenance,
Repair
and
Replacement
Exclusion;
Stay
of
Effective
Date
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
rule.

SUMMARY:
A
December
24,
2003
order
of
the
U.
S.
Court
of
Appeals
for
the
District
of
Columbia
Circuit
stayed
the
effectiveness
of
the
Equipment
Replacement
Provision
(
ERP)
of
the
Clean
Air
Act
(
CAA)
New
Source
Review
(
NSR)
Routine
Maintenance,
Repair,
and
Replacement
(
RMRR)
exclusion.
Today's
action
reflects
this
stay
in
the
Code
of
Federal
Regulations
and
restores
in
a
new
paragraph
the
RMRR
regulatory
language
that
had
been
superseded
by
the
ERP
amendments.
This
document
also
sets
out
EPA's
interpretation
of
the
effect
of
the
stay
on
the
Prevention
of
Significant
Deterioration
(
PSD)
federal
implementation
plans
in
various
state
implementation
plans.
EPA
is
issuing
this
final
rule
without
notice
and
opportunity
for
public
comment
because
there
is
good
cause
to
do
so
within
the
meaning
of
the
Administrative
Procedure
Act.

DATES:
The
effective
date
for
the
amendments
to
40
CFR
Parts
51
and
52
published
at
68
FR
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
2
61276
on
October
27,
2003
has
been
stayed
indefinitely
by
court
order.
Upon
the
court's
termination
of
the
stay,
EPA
will
publish
a
document
in
the
Federal
Register
announcing
any
new
effective
date.
The
effective
date
for
the
amendments
in
this
final
rule
is
on
[
insert
date
of
publication
in
the
Federal
Register].

ADDRESSES:
EPA
has
established
a
docket
for
this
action
under
E­
Docket
ID
No.
OAR­
2002­

0068
(
legacy
docket
number
no.
A­
2002­
04).
This
number
will
also
appear
at
the
top
of
your
FR
document
along
with
the
FRL
assigned
to
your
particular
FR
document].
All
documents
in
the
docket
are
listed
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket.
Although
listed
in
the
index,
some
information
is
not
publicly
available,
i.
e.,
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
in
EDOCKET
or
in
hard
copy
at
the
the
EPA
Docket
Center
(
EPA/
DC),
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC.
This
Docket
Facility
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.

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)
566­
1742.

FOR
FURTHER
INFORMATION
CONTACT:
Mr.
David
Svendsgaard,
Information
Transfer
and
Program
Integration
Division
(
C339­
03),
U.
S.
EPA
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
North
Carolina
27711,
telephone
number
(
919)
541­

2380,
facsimile
number
(
919)
541­
5509,
electronic
mail
address:
svendsgaard.
dave@
epa.
gov.
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
1
For
an
explanation
of
the
development
of
the
ERP
amendments
and
the
reasons
for
them,
see
68
FR
61248
(
October
27,
2003),
and
the
docket
referenced
above.

3
SUPPLEMENTARY
INFORMATION:

I.
Today's
Final
Rule
A.
What
RMRR
Exclusion
is
in
Effect
After
the
Court's
Order?

On
October
27,
2003,
EPA
published
amendments
to
the
regulations
governing
the
PSD
and
NSR
programs
mandated
under
parts
C
and
D
of
title
I
of
the
Clean
Air
Act
(
CAA).
These
amendments
added
an
"
Equipment
Replacement
Provision"
(
ERP)
to
the
Routine
Maintenance,

Repair,
and
Replacement
(
RMRR)
exclusion
from
these
programs.
1
These
amendments
were
scheduled
to
take
effect
on
December
26,
2003.

Shortly
after
publication
of
the
ERP
amendments,
various
parties
filed
petitions
for
review
of
EPA's
action
in
the
U.
S.
Court
of
Appeals
for
the
District
of
Columbia
Circuit
(
State
of
New
York
v.
EPA,
No.
03­
1380
and
consolidated
cases).
Upon
the
motions
of
various
petitioners,
the
Court
ordered
the
ERP
amendments
stayed
pending
the
completion
of
its
review.
The
Court
issued
its
order
on
December
24,
2003.
Therefore,
the
amendments
never
became
effective.

Today's
final
rule
amends
the
RMRR
exclusion
due
to
the
fact
that
the
ERP
amendments
have
been
stayed.
Upon
the
Court
completing
its
review
or
otherwise
terminating
the
stay
order,

EPA
will
publish
an
additional
notice
in
the
Federal
Register
announcing
any
new
effective
date.

The
effect
of
the
Court's
stay
order
keeps
the
RMRR
exclusion
in
effect
as
it
existed
prior
to
the
ERP
amendment
for
an
indefinite
duration.
Nevertheless,
the
former
text
no
longer
appears
in
the
Code
of
Federal
Regulations
(
CFR)
because
it
was
changed
by
the
ERP
amendments.
This
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
4
complicates
matters
for
states,
the
regulated
community,
and
the
public,
especially
in
those
instances
where
state
regulations
reference
those
of
EPA
and
in
states
that
operate
under
the
Federal
PSD
program
in
§
52.21.
In
order
to
restore
the
CFR
text
that
has
been
amended
by
the
ERP,
EPA
is
restoring
the
former
RMRR
text
to
the
CFR
under
a
new
paragraph
different
from
the
paragraphs
affected
by
the
ERP.
See
1
CFR
18.16
(
reinstatement
of
expired
regulations).

B.
What
Amendments
are
Necessary
for
the
PSD
FIPs
due
to
the
Stay?

The
addition
of
a
new
paragraph
to
the
Federal
PSD
program
rule
in
§
52.21
will
not
require
amendments
to
each
Federal
implementation
plan
(
FIP)
for
PSD.
Prior
to
a
recent
amendment,
each
FIP
specified
which
paragraphs
of
§
52.21
were
incorporated
by
listing
such
paragraphs.
Therefore,
each
time
EPA
added
or
deleted
a
paragraph,
EPA
needed
to
promulgate
a
new
regulation
correcting
each
FIP.
On
December
24,
2003,
EPA
promulgated
a
FIP
correction
rule,
which
amended
the
way
in
which
EPA
incorporates
§
52.21
into
each
FIP.
The
new
format
incorporates
revisions
to
§
52.21
without
further
revision
to
each
FIP
in
each
subpart
(
see
68
FR
74483).
EPA's
new
format
for
incorporating
§
52.21
into
each
FIP
states
that
all
of
§
52.21
is
incorporated
except
paragraph
(
a)(
1).
The
efficiency
of
this
format
change
is
evident
in
today's
action.

Parties
to
the
litigation
on
the
ERP,
as
well
as
states
not
involved
in
the
litigation,
asked
whether
somehow
the
FIP
correction
rule
would
make
the
ERP
effective
in
states
with
PSD
FIPs,

notwithstanding
the
stay.
On
January
8,
2004,
EPA,
through
its
litigation
counsel
in
the
Department
of
Justice,
distributed
via
e­
mail
a
message
to
all
parties
to
the
ERP
litigation
expressing
EPA's
opinion
on
how
the
stay
affected
the
particular
PSD
provisions
that
apply
in
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
5
FIP
states.
In
part,
this
message
noted
that
"[
t]
he
FIP
Rule
itself
was
not
stayed,
and
thus,
all
the
sections
of
part
52
which
incorporate
§
52.21
have
been
updated.
See,
e.
g.,
40
CFR
52.499
(
D.
C.
SIP).
Nonetheless,
because
the
FIPs
incorporate
sections
of
52.21
that
have
been
stayed
by
the
court,
these
"
ERP"
sections
are
not
effective
in
the
areas
covered
by
the
FIPs
(
e.
g.,
it
does
not
matter
that
the
FIPs
now
incorporate
§
52.21(
cc)
because
that
section
is
stayed).
It
is
EPA's
opinion
that
this
result
occurs
automatically
due
to
the
Court's
staying
of
the
underlying
rule
changes
at
40
CFR
52.21,
and
that
further
action
by
the
Court
or
EPA
is
not
necessary."

While
no
party
objected
to
EPA's
interpretation,
some
parties
asked
that
EPA
present
its
interpretation
in
a
more
formal
announcement.
This
document
satisfies
that
request.

C.
What
is
the
Basis
for
Finding
Good
Cause
to
Make
These
Amendments
Immediately
Effective?

The
EPA
has
determined
that
notice
and
comment
on
this
amendment
to
the
NSR
regulations
is
not
required.
Under
the
Administrative
Procedure
Act
(
5
U.
S.
C.
553(
b)(
3)(
B)),
a
rule
is
exempt
from
notice
and
public
comments
requirements
"
when
the
agency
for
a
good
cause
finds
(
and
incorporates
the
finding
and
a
brief
statements
of
reasons
therefor
in
the
rule
issued)

that
notice
and
public
procedure
thereon
are
impracticable,
unnecessary,
or
contrary
to
the
public
interest."

The
terms
of
the
court
order
prevented
the
ERP
from
coming
into
effect.
In
the
absence
of
the
ERP,
the
prior
regulatory
RMRR
exclusion
remains
in
effect.
Accordingly,
this
rule
is
merely
a
housekeeping
measure
that
conforms
the
regulatory
text
to
reflect
the
court
order.
The
revisions
to
the
regulatory
text
do
not
have
any
substantive
effect.
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
6
Public
comment
could
not
change
the
result
dictated
by
the
court
order,
and
is
therefore
unnecessary
and
impracticable.
In
addition,
delay
in
issuing
this
rule
amending
the
existing
regulations
could
result
in
confusion
on
the
part
of
state
and
local
air
pollution
control
agencies
as
well
as
the
public
regarding
which
RMRR
exclusion
is
in
effect.
Notice
and
comment
would
therefore
be
contrary
to
the
public
interest.
Accordingly,
EPA
has
concluded
that
notice
and
comment
on
this
rule
would
be
impracticable,
unnecessary,
and
contrary
to
the
public
interest,

within
the
meaning
of
5
U.
S.
C.
553(
b)(
3)(
B).

The
EPA
also
believes
that
there
is
good
cause
to
make
today's
rule
effective
immediately,

rather
than
effective
within
30
days,
within
the
meaning
of
5
U.
S.
C.
553(
d)(
3).
For
the
reasons
stated
above,
EPA
has
determined
that
it
is
unnecessary,
impracticable
and
contrary
to
the
public
interest
to
delay
revisions
to
the
text
of
the
regulations
to
incorporate
the
court
order
staying
the
effectiveness
of
the
ERP.
In
addition,
EPA
has
balanced
the
necessity
for
immediate
implementation
against
principles
of
fundamental
fairness,
which
require
that
all
affected
persons
be
afforded
a
reasonable
amount
of
time
to
prepare
for
the
effective
date
of
this
rule.
In
so
doing,

EPA
has
concluded
that,
because
the
court
order
came
into
effect
upon
issuance,
the
benefit
to
the
public
of
making
conforming
changes
to
the
regulatory
text
immediately
outweighs
the
need,

if
any,
to
give
affected
parties
time
to
adjust
their
behavior
accordingly.
Indeed,
EPA
has
determined
that,
on
balance,
making
this
rule
effective
immediately
is
in
the
public
interest
and
affected
parties
will
better
be
served
by
the
avoidance
of
confusion
(
as
a
result
of
a
discrepancy
between
the
provision
in
effect
as
a
result
of
the
court
order
and
the
regulatory
text).

II.
Statutory
and
Executive
Order
Reviews
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
7
This
final
rule
merely
conforms
the
CFR
to
the
terms
of
the
State
of
New
York
v.
EPA
Court's
order
of
December
24,
2004.
In
so
doing,
this
rule
has
no
substantive
effect.
Therefore,

under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
this
action
is
not
a
"
significant
regulatory
action"
and
is
therefore
not
subject
to
OMB
review.
Because
this
action
is
not
subject
to
notice­
and­
comment
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute,
it
is
not
subject
to
the
Regulatory
Flexibility
Act
(
5
U.
S.
C.
601
et
seq.)
or
sections
202
and
205
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA)
(
Public
Law
104­
4).
In
addition,
this
action
does
not
significantly
or
uniquely
affect
small
governments.
This
rule
does
not
have
tribal
implications,
as
specified
in
Executive
Order
13175
(
63
FR
67249,
November
9,

2000).
This
action
will
not
have
federalism
implications,
as
specified
in
Executive
Order
13132
(
64
FR
43255,
August
10,
1999).
This
action
also
is
not
subject
to
Executive
Order
13045
(
62
FR
19885,
April
23,
1997),
because
it
is
not
economically
significant.
This
action
is
not
subject
to
Executive
Order
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"
(
66
FR
28355
(
May
22,
2001))
because
it
is
not
a
significant
regulatory
action
under
Executive
Order
12866.
This
action
does
not
involve
technical
standards;

thus,
the
requirements
of
section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(
15
U.
S.
C.
272
note)
do
not
apply.
The
Office
of
Management
and
Budget
(
OMB)

approved
the
information
collection
requirements
contained
for
the
NSR
regulations
that
are
in
effect
as
a
result
of
the
court
order
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
and
has
assigned
OMB
control
number
2060­
0003,
EPA
ICR
number
1230.10.
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
8
III.
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
the
Comptroller
General
of
the
United
States.
EPA
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.

House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
Federal
Register.
This
rule
is
not
a
"
major
rule"
as
defined
by
5
U.
S.
C.
804(
2).
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
9
List
of
Subjects
in
40
CFR
Parts
51
and
52
Environmental
protection,
Administrative
practices
and
procedures,
Air
pollution
control,

Intergovernmental
relations,
Reporting
and
recordkeeping
requirements.

___________________
______________________________________

Dated:
Michael
O.
Leavitt
Administrator
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
10
PART
51
­
[
AMENDED]

1.
The
authority
citation
for
part
51
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
7401­
7671q.

2.
Section
51.165
is
amended
to:

a.
stay
paragraphs
(
a)(
1)(
v)(
C)(
1),
(
a)(
1)(
xliii)
through
(
xlvi),
and
(
h);
and
b.
by
adding
paragraph
(
a)(
1)(
v)(
C)(
10),
to
read
as
follows:

§
51.165
Permit
Requirements.

(
a)
*
*
*

(
1)
*
*
*

(
v)
*
*
*

(
C)
*
*
*

(
10)
Routine
maintenance,
repair,
and
replacement.

3.
Section
51.166
is
amended
to:

a.
stay
paragraphs
(
b)(
2)(
iii)(
a),
(
b)(
53)
through
(
56),
and
(
y);
and
b.
by
adding
paragraph
(
b)(
2)(
iii)(
l),
to
read
as
follows:
Deliberative
Draft
­
5/
27/
04
­
FRN
announcing
ERP
stay
­
DO
NOT
QUOTE
OR
CITE
11
§
51.166
Prevention
of
Significant
Deterioration.

(
b)
*
*
*

(
2)
*
*
*

(
iii)
*
*
*

(
l)
Routine
maintenance,
repair,
and
replacement.

PART
52
­
[
AMENDED]

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

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

2.
Section
52.21
is
amended:

a.
to
stay
paragraphs
(
b)(
2)(
iii)(
a),
(
b)(
55)
through
(
58),
and
(
cc);
and
b.
by
adding
paragraph
(
b)(
2)(
iii)(
l),
to
read
as
follows:

§
52.21
Prevention
of
significant
deterioration
of
air
quality.

(
b)
*
*
*

(
2)
*
*
*

(
iii)
*
*
*

(
l)
Routine
maintenance,
repair,
and
replacement.
