6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
1
The
following
parties
filed
the
petition
for
reconsideration
of
the
October
27,
2003
rule:
Natural
Resources
Defense
Council,
Environmental
Defense,
Sierra
Club,
American
Lung
Association,
Communities
for
a
Better
Environment,
United
States
Public
Interest
Research
Group,
Alabama
Environmental
Council,
Clean
Air
Council,
Group
Against
Smog
and
Pollution,
Michigan
Environmental
Council,
The
Ohio
Environmental
Council,
Scenic
Hudson,
and
Southern
Alliance
for
Clean
Energy.
A
subset
of
these
parties
filed
a
petition
to
reconsider
the
December
24,
2003
rule.
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
2060­
AK28
Prevention
of
Significant
Deterioration
(
PSD)
and
Non­
attainment
New
Source
Review
(
NSR):
Equipment
Replacement
Provision
of
the
Routine
Maintenance,

Repair
and
Replacement
Exclusion;
Reconsideration
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Notice
of
reconsideration
of
final
rule;
request
for
public
comment;
notice
of
public
hearing.

SUMMARY:
On
October
27,
2003
and
December
24,
2003,
the
EPA
revised
regulations
governing
the
major
New
Source
Review
(
NSR)
programs
mandated
by
parts
C
and
D
of
title
I
of
the
Clean
Air
Act
(
CAA
or
Act).
Following
these
two
actions,
the
Administrator
received
petitions
for
reconsideration
from
a
collection
of
environmental
and
public
interest
groups1
and
a
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
2
The
states
that
filed
a
petition
for
reconsideration
of
the
December
24,
2003
rule
are
California,
Connecticut,
Illinois,
Massachusetts,
New
Jersey,
and
New
York,
along
with
the
District
of
Columbia.

2
group
of
states.
2
Today,
we,
the
EPA,
are
announcing
our
reconsideration
of
certain
issues
arising
from
the
final
rules
of
October
27,
2003
and
December
24,
2003.
We
are
requesting
public
comment
on
three
issues
for
which
we
are
granting
reconsideration.
The
issues
are
described
in
section
II
of
this
notice.
We
plan
to
issue
a
final
decision
on
these
issues
and
other
issues
raised
in
the
various
petitions
by
[
INSERT
DATE
180
DAYS
FROM
DATE
OF
PUBLICATION].

We
are
only
seeking
comment
on
provisions
of
the
major
NSR
rules
as
specifically
identified
in
this
notice.
We
will
not
respond
to
any
comments
addressing
any
other
provisions
of
the
NSR
rules
or
program.

DATES:
Comments.
Comments
must
be
received
on
or
before
[
INSERT
DATE
60
DAYS
AFTER
PUBLICATION
IN
THE
FEDERAL
REGISTER].

Public
Hearing.
The
public
hearing
will
convene
at
9
a.
m.
EDT
and
will
end
after
all
registered
speakers
have
had
an
opportunity
to
speak
but
no
later
than
10
p.
m.
EDT
on
[
INSERT
DATE
30
DAYS
AFTER
PUBLICATION
IN
THE
FEDERAL
REGISTER].
Because
of
the
need
to
resolve
the
issues
raised
in
this
notice
in
a
timely
manner,
we
will
not
grant
requests
for
extension
beyond
this
date.
For
additional
information
on
the
public
hearing
and
requesting
to
speak,
see
the
SUPPLEMENTARY
INFORMATION
section
of
this
preamble.

ADDRESSES:
Comments.
Comments
may
be
submitted
by
mail
to
U.
S.
Environmental
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
3
Protection
Agency,
EPA
West
(
Air
Docket),
1200
Pennsylvania
Ave.,
NW,
Room:
B108,
Mail
Code:
6102T,
Washington,
DC,
20460,
Attention
E­
Docket
ID
No.
OAR­
2002­
0068
(
Legacy
Docket
ID
No.
A­
2002­
04).
Comments
may
also
be
submitted
electronically,
by
facsimile,

through
hand
delivery/
courier,
or
by
phone.

Public
Hearing.
A
public
hearing
will
be
held
at
___________________________________.

FOR
FURTHER
INFORMATION
CONTACT:
Mr.
David
Svendsgaard,
Information
Transfer
and
Program
Integration
Division
(
C339­
03),
U.
S.
Environmental
Protection
Agency,

Research
Triangle
Park,
NC
27711,
telephone
(
919)
541­
2380,
or
electronic
mail
at
svendsgaard.
dave@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

I.
General
Information
A.
What
are
the
regulated
entities?

Entities
potentially
affected
by
the
subject
rule
include
sources
in
all
industry
groups.
The
majority
of
sources
potentially
affected
are
expected
to
be
in
the
following
groups.

Industry
Group
SICa
NAICSb
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
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
4
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
a
Standard
Industrial
Classification
b
North
American
Industry
Classification
System.

Entities
potentially
affected
by
the
subject
rule
also
include
State,
local,
and
tribal
governments
that
are
delegated
authority
to
implement
these
regulations.

B.
How
can
I
get
copies
of
this
document
and
other
related
information?

1.
Docket.
EPA
has
established
an
official
public
docket
for
this
action
under
E­
Docket
ID
No.
OAR­
2002­
0068
(
Legacy
Docket
ID
No.
A­
2002­
04).
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
EPA
Docket
Center,
(
Air
Docket),
U.
S.
Environmental
Protection
Agency,

1301
Constitution
Ave.,
NW,
Room:
B108,
Mail
Code:
6102T,
Washington,
DC,
20460.
The
EPA
Docket
Center
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
Reading
Room
is
(
202)
566­
1742.

A
reasonable
fee
may
be
charged
for
copying.
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
5
2.
Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
"
Federal
Register"
listings
at
http://
www.
epa.
gov/
fedrgstr/.

An
electronic
version
of
a
portion
of
the
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
Interested
persons
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
submit
or
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
access
those
documents
in
the
public
docket
that
are
available
electronically.
Once
in
the
system,
select
"
search,"
then
key
in
the
appropriate
docket
identification
number.

Certain
types
of
information
will
not
be
placed
in
the
EPA
Dockets.
Information
claimed
as
CBI
and
other
information
whose
disclosure
is
restricted
by
statute,
which
is
not
included
in
the
official
public
docket,
will
not
be
available
for
public
viewing
in
EPA's
electronic
public
docket.
EPA's
policy
is
that
copyrighted
material
will
not
be
placed
in
EPA's
electronic
public
docket
but
will
be
available
only
in
printed,
paper
form
in
the
official
public
docket.
To
the
extent
feasible,
publicly
available
docket
materials
will
be
made
available
in
EPA's
electronic
public
docket.
When
a
document
is
selected
from
the
index
list
in
EPA
Dockets,
the
system
will
identify
whether
the
document
is
available
for
viewing
in
EPA's
electronic
public
docket.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility
identified
in
section
I.
B.
1.
EPA
intends
to
work
towards
providing
electronic
access
to
all
of
the
publicly
available
docket
materials
through
EPA's
electronic
public
docket.

For
public
commenters,
it
is
important
to
note
that
EPA's
policy
is
that
public
comments,
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
6
whether
submitted
electronically
or
in
paper,
will
be
made
available
for
public
viewing
in
EPA's
electronic
public
docket
as
EPA
receives
them
and
without
change,
unless
the
comment
contains
copyrighted
material,
CBI,
or
other
information
whose
disclosure
is
restricted
by
statute.
When
EPA
identifies
a
comment
containing
copyrighted
material,
EPA
will
provide
a
reference
to
that
material
in
the
version
of
the
comment
that
is
placed
in
EPA's
electronic
public
docket.
The
entire
printed
comment,
including
the
copyrighted
material,
will
be
available
in
the
public
docket.

Public
comments
submitted
on
computer
disks
that
are
mailed
or
delivered
to
the
docket
will
be
transferred
to
EPA's
electronic
public
docket.
Public
comments
that
are
mailed
or
delivered
to
the
Docket
will
be
scanned
and
placed
in
EPA's
electronic
public
docket.
Where
practical,
physical
objects
will
be
photographed,
and
the
photograph
will
be
placed
in
EPA's
electronic
public
docket
along
with
a
brief
description
written
by
the
docket
staff.

For
additional
information
about
EPA's
electronic
public
docket
visit
EPA
Dockets
online
or
see
67
FR
38102,
May
31,
2002.

C.
How
and
to
whom
do
I
submit
comments?

You
may
submit
comments
electronically,
by
mail,
by
facsimile,
through
hand
delivery/
courier,
or
by
phone.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
comment.
Please
ensure
that
your
comments
are
submitted
within
the
specified
comment
period.
Comments
received
after
the
close
of
the
comment
period
will
be
marked
"
late."
EPA
is
not
required
to
consider
these
late
comments.
If
you
wish
to
submit
CBI
or
information
that
is
otherwise
protected
by
statute,

please
follow
the
instructions
in
section
I.
D.
Do
not
use
EPA
Dockets
or
e­
mail
to
submit
CBI
or
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
7
information
protected
by
statute.

1.
Electronically.
If
you
submit
an
electronic
comment
as
prescribed
below,
EPA
recommends
that
you
include
your
name,
mailing
address,
and
an
e­
mail
address
or
other
contact
information
in
the
body
of
your
comment.
Also
include
this
contact
information
on
the
outside
of
any
disk
or
CD
ROM
you
submit,
and
in
any
cover
letter
accompanying
the
disk
or
CD
ROM.

This
ensures
that
you
can
be
identified
as
the
submitter
of
the
comment
and
allows
EPA
to
contact
you
in
case
EPA
cannot
read
your
comment
due
to
technical
difficulties
or
needs
further
information
on
the
substance
of
your
comment.
EPA's
policy
is
that
EPA
will
not
edit
your
comment,
and
any
identifying
or
contact
information
provided
in
the
body
of
a
comment
will
be
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.
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.

a.
EPA
Dockets.
Your
use
of
EPA's
electronic
public
docket
to
submit
comments
to
EPA
electronically
is
EPA's
preferred
method
for
receiving
comments.
Go
directly
to
EPA
Dockets
at
http://
www.
epa.
gov/
edocket,
and
follow
the
online
instructions
for
submitting
comments.
To
access
EPA's
electronic
public
docket
from
the
EPA
Internet
Home
Page,
select
"
Information
Sources,"
"
Dockets,"
and
"
EPA
Dockets."
Once
in
the
system,
select
"
search,"
and
then
key
in
either
Docket
ID
No.
A­
2002­
04
or
E­
Docket
ID
No.
OAR­
2002­
0068
(
for
which
A­

2002­
04
is
now
a
legacy
number).
The
system
is
an
"
anonymous
access"
system,
which
means
EPA
will
not
know
your
identity,
e­
mail
address,
or
other
contact
information
unless
you
provide
it
in
the
body
of
your
comment.
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
8
b.
E­
mail.
Comments
may
be
sent
by
electronic
mail
(
e­
mail)
to
a­
and­

rdocket
epamail.
epa.
gov,
Attention
E­
Docket
ID
No.
OAR­
2002­
0068
(
Legacy
Docket
ID
No.

A­
2002­
04).
In
contrast
to
EPA's
electronic
public
docket,
EPA's
e­
mail
system
is
not
an
"
anonymous
access"
system.
If
you
send
an
e­
mail
comment
directly
to
the
Docket
without
going
through
EPA's
electronic
public
docket,
EPA's
e­
mail
system
automatically
captures
your
e­
mail
address.
E­
mail
addresses
that
are
automatically
captured
by
EPA's
e­
mail
system
are
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.

c.
Disk
or
CD
ROM.
You
may
submit
comments
on
a
disk
or
CD
ROM
that
you
mail
to
the
mailing
address
identified
in
section
I.
C.
2.
These
electronic
submissions
will
be
accepted
in
WordPerfect
or
ASCII
file
format.
Avoid
the
use
of
special
characters
and
any
form
of
encryption.

2.
By
Mail.
Send
two
copies
of
your
comments
to:
U.
S.
Environmental
Protection
Agency,
EPA
West
(
Air
Docket),
1200
Pennsylvania
Ave.,
NW,
Room:
B108,
Mail
Code:

6102T,
Washington,
DC,
20460,
Attention
E­
Docket
ID
No.
OAR­
2002­
0068
(
Legacy
Docket
ID
No.
A­
2002­
04).

3.
By
Hand
Delivery
or
Courier.
Deliver
your
comments
to:
EPA
Docket
Center,
(
Air
Docket),
U.
S.
Environmental
Protection
Agency,
1301
Constitution
Ave.,
NW,
Room:
B108,

Mail
Code:
6102T,
Washington,
DC,
20460,
Attention
Docket
ID
No.
A­
2002­
04.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation
as
identified
in
section
I.
B.
1.
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
9
4.
By
Facsimile.
Fax
your
comments
to
the
EPA
Docket
Center
at
(
202)
566­
1741,

Attention
Docket
ID
No.
A­
2002­
0068
(
Legacy
Docket
ID
No.
A­
2002­
04).

5.
By
Phone.
You
may
call
and
leave
oral
comments
on
a
public
comment
phone
line.

The
number
is
(
919)
541­
0211.
EPA
will
log
and
place
in
E­
Docket
ID
No.
OAR­
2002­
0068
(
Legacy
Docket
ID
No.
A­
2002­
04)
any
comments
received
through
this
phone
number.

D.
How
should
I
submit
CBI
to
the
Agency?

Do
not
submit
information
that
you
consider
to
be
CBI
electronically
through
EPA's
electronic
public
docket
or
by
e­
mail.
Send
or
deliver
information
identified
as
CBI
only
to
the
following
address:
Mr.
David
Svendsgaard,
c/
o
OAQPS
Document
Control
Officer
(
C339­
03),

U.
S.
Environmental
Protection
Agency,
Research
Triangle
Park,
NC
27711,
Attention
E­
Docket
ID
No.
OAR­
2002­
0068
(
Legacy
Docket
ID
No.
A­
2002­
04).
You
may
claim
information
that
you
submit
to
EPA
as
CBI
by
marking
any
part
or
all
of
that
information
as
CBI.
(
If
you
submit
CBI
on
disk
or
CD
ROM,
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
CBI.)
Information
so
marked
will
not
be
disclosed
except
in
accordance
with
procedures
set
forth
in
40
CFR
part
2.

In
addition
to
one
complete
version
of
the
comment
that
includes
any
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
and
EPA's
electronic
public
docket.
If
you
submit
the
copy
that
does
not
contain
CBI
on
disk
or
CD
ROM,
mark
the
outside
of
the
disk
or
CD
ROM
clearly
that
it
does
not
contain
CBI.
Information
not
marked
as
CBI
will
be
included
in
the
public
docket
and
EPA's
electronic
public
docket
without
prior
notice.
If
you
have
any
questions
about
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
10
CBI
or
the
procedures
for
claiming
CBI,
please
consult
the
person
identified
in
the
FOR
FURTHER
INFORMATION
CONTACT
section.

E.
What
should
I
consider
as
I
prepare
my
comments
for
EPA?

You
may
find
the
following
suggestions
helpful
for
preparing
your
comments.


Explain
your
views
as
clearly
as
possible.


Describe
any
assumptions
that
you
used.


Provide
any
technical
information
and/
or
data
you
used
that
support
your
views.


If
you
estimate
potential
burden
or
costs,
explain
how
you
arrived
at
your
estimate.


Provide
specific
examples
to
illustrate
your
concerns.


Offer
alternatives.


Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.


To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
response.
It
would
also
be
helpful
if
you
provided
the
name,
date,
and
Federal
Register
citation
related
to
your
comments.

F.
What
information
should
I
know
about
the
public
hearing?

The
public
hearing
will
provide
interested
parties
the
opportunity
to
present
data,
views,

or
arguments
concerning
the
issues
raised
in
this
notice.
Person
interested
in
attending
or
presenting
oral
testimony
are
encouraged
to
register
in
advance
by
contacting
Ms.
Chandra
Kennedy,
OAQPS,
Integrated
Implementation
Group,
Information
Transfer
and
Program
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
11
Integration
Division
(
C339­
03),
U.
S.
Environmental
Protection
Agency,
Research
Triangle
Park,

NC
27711;
telephone
number
(
919)
541­
5319
or
e­
mail
kennedy.
chandra@
epa.
gov
no
later
than
[
INSERT
DATE
16
DAYS
AFTER
PUBLICATION
IN
THE
FEDERAL
REGISTER].

Presentations
will
be
limited
to
5
minutes
each.
We
will
assign
speaking
times
to
speakers
who
make
a
timely
request
to
speak
at
the
hearing.
We
will
notify
speakers
of
their
assigned
times
by
[
INSERT
DATE
23
DAYS
AFTER
PUBLICATION
IN
THE
FEDERAL
REGISTER].
We
will
attempt
to
accommodate
all
other
persons
who
wish
to
speak,
as
time
allows.

The
EPA's
planned
seating
arrangement
for
the
hearing
is
theater
style,
with
seating
available
on
a
first
come
first
served
basis
for
about
250
people.
Attendees
should
note
that
the
use
of
pickets
or
other
signs
will
not
be
allowed
on
hotel
property.

As
of
the
date
of
this
announcement,
the
Agency
intends
to
proceed
with
the
hearing
as
announced;
however,
unforeseen
circumstances
may
result
in
a
postponement.
Therefore,

members
of
the
public
who
plan
to
attend
the
hearing
are
advised
to
contact
Ms.
Chandra
Kennedy
at
the
above
referenced
address
to
confirm
the
location
and
date
of
the
hearing.
You
may
also
check
our
New
Source
Review
website
at
http://
www.
epa.
gov/
nsr
for
any
changes
in
the
date
or
location.

The
record
for
this
action
will
remain
open
until
[
INSERT
DATE
30
DAYS
AFTER
PUBLIC
HEARING
DATE,
OR
THE
DEADLINE
FOR
PUBLIC
COMMENTS,

WHICHEVER
IS
LATER]
to
accommodate
submittal
of
information
related
to
the
public
hearing.

G.
Where
can
I
obtain
additional
information?
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
12
In
addition
to
being
available
in
the
docket,
an
electronic
copy
of
today's
notice
is
also
available
on
the
World
Wide
Web
through
the
Technology
Transfer
Network
(
TTN).
Following
signature
by
the
EPA
Administrator,
a
copy
of
today's
notice
will
be
posted
on
the
TTN's
policy
and
guidance
page
for
newly
proposed
or
promulgated
rules
at
http://
www.
epa.
gov/
ttn/
oarpg.

The
TTN
provides
information
and
technology
exchange
in
various
areas
of
air
pollution
control.

If
more
information
regarding
the
TTN
is
needed,
call
the
TTN
HELP
line
at
(
919)
541­
5384.

H.
How
is
this
preamble
organized?

The
information
presented
in
this
preamble
is
organized
as
follows:

I.
General
Information
A.
What
are
the
regulated
entities?
B.
How
can
I
get
copies
of
this
document
and
other
related
information?
1.
Docket
2.
Electronic
Access
C.
How
and
to
whom
do
I
submit
comments?
1.
Electronically
2.
By
Mail
3.
By
Hand
Delivery
or
Courier
4.
By
Facsimile
5.
By
Phone
D.
How
should
I
submit
CBI
to
the
Agency?
E.
What
should
I
consider
as
I
prepare
my
comments
for
EPA?
F.
What
information
should
I
know
about
the
public
hearing?
G.
Where
can
I
obtain
additional
information?
H.
How
is
this
preamble
organized?
II.
Background
A.
ERP
and
PSD
FIP
Rulemakings
B.
Reconsideration
Petitions
B.
Schedule
for
Reconsideration
III.
Discussion
of
Issues
A.
Legal
Basis
B.
The
20
Percent
Replacement
Cost
Threshold
C.
Revisions
to
the
Format
for
Incorporating
the
PSD
FIP
into
State
Plans
IV.
Statutory
and
Executive
Order
Reviews
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
13
A.
Executive
Order
12866
­
Regulatory
Planning
and
Review
B.
Executive
Order
13132
­
Federalism
C.
Executive
Order
13175
­
Consultation
and
Coordination
with
Indian
Tribal
Governments
D.
Executive
Order
13045
­
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
E.
Paperwork
Reduction
Act
F.
Regulatory
Flexibility
Act
(
RFA),
as
Amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
U.
S.
C.
601
et
seq.
G.
Unfunded
Mandates
Reform
Act
of
1995
H.
National
Technology
Transfer
and
Advancement
Act
of
1995
I.
Executive
Order
13211
­
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
J.
Executive
Order
12988
­
Civil
Justice
Reform
V.
Statutory
Authority
II.
Background
A.
ERP
and
PSD
FIP
Rulemakings
On
October
27,
2003,
EPA
published
the
Equipment
Replacement
Provision
("
ERP")

amendments
to
its
regulations
implementing
the
major
NSR
requirements
of
the
CAA.
The
ERP
amended
the
exclusion
from
major
NSR
for
"
routine
maintenance,
repair,
and
replacement"

("
RMRR")
activities
at
existing
major
sources.
For
background
on
NSR,
RMRR,
and
the
ERP,

please
see
the
notice
promulgating
the
ERP,
especially
sections
II,
"
Background,"
and
III.
A,

"
Equipment
Replacement
Provision
­
Overview
and
Justification
for
Today's
Final
Action."
68
FR
61248,
61249
­
52
(
Oct.
27,
2003).
Several
parties
sought
judicial
review
of
the
ERP
in
the
US
Court
of
Appeals
for
the
District
of
Columbia
Circuit.
See
State
of
New
York
v.
EPA,
No.
03­

1380
and
consolidated
cases
(
DC
Cir.).
As
a
result
of
a
court
order,
the
ERP
is
"
stayed"
(
i.
e.,
not
in
effect)
until
the
court
decides
this
case.
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
3In
this
notice,
the
term
"
petitioner"
refers
only
to
those
entities
that
filed
petitions
for
reconsideration
with
EPA.

14
On
December
24,
2003,
EPA
published
a
rule
amending
the
PSD
provisions
of
state
programs
that
did
not
have
approved
state
rules
for
PSD.
68
FR
74483.
In
each
of
these
states,

EPA
previously
had
made
the
area
subject
to
the
PSD
rules
in
40
CFR
section
52.21,
the
Federal
Implementation
Plan
("
FIP")
for
PSD.
Please
see
68
FR
74483
(
December
24,
2003),
for
additional
background
on
this
rule.
Parties
have
also
sought
judicial
review
of
this
rule,
and
their
petitions
for
review
have
been
consolidated
with
the
challenges
to
ERP.

B.
Reconsideration
Petitions
On
December
24,
2003,
petitioners3
asked
EPA
to
reconsider
three
aspects
of
the
Equipment
Replacement
Provision
that
we
published
on
October
27,
2003.
Specifically,
the
petitioners
assert
that
our
legal
basis
for
the
ERP
is
flawed,
the
basis
for
the
20
percent
ERP
cost
threshold
is
arbitrary
and
capricious,
and
EPA
has
retroactively
applied
the
ERP.
On
January
16,

2004,
a
subset
of
the
petitioners
on
the
ERP
rule
filed
a
petition
for
reconsideration
of
the
December
24,
2003
rule
that
incorporated
the
ERP
into
the
FIP
portion
of
a
State
plan
where
the
State
does
not
have
an
approved
PSD
State
Implementation
Plan
(
SIP).
This
petition
reiterated
the
issues
raised
in
the
December
24,
2003
petition
concerning
the
ERP.
On
February
23,
2004,
a
group
of
states
and
the
District
of
Columbia
filed
a
petition
for
reconsideration
of
the
December
24,
2003
rule.
This
petition
raised
two
issues.
First,
it
asked
for
reconsideration
on
whether
EPA
needed
to
make
a
finding
of
deficiency
for
the
PSD
portions
of
each
SIP
before
it
amended
the
incorporation
of
the
PSD
FIP
into
the
state
plans.
Second,
it
challenged
whether
EPA
needed
to
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
15
provide
an
opportunity
for
comment
on
the
revised
format
for
incorporating
the
PSD
FIP
into
state
plans,
which
would
automatically
update
the
state
plans
whenever
EPA
amended
the
PSD
FIP.

We
have
decided
to
grant
reconsideration
and
request
comment
on
three
issues
raised
by
petitioners
B
specifically,
the
contentions
that
our
legal
basis
is
flawed,
that
our
selection
of
20
percent
for
the
cost
limit
is
arbitrary
and
capricious
and
lacks
sufficient
record,
and
that
we
should
provide
an
opportunity
for
comment
on
the
revised
format
for
incorporating
the
PSD
FIP
into
state
plans.
Without
prejudging
the
information
that
will
be
provided
in
response
to
this
notice,

we
note
that,
to
date,
petitioners
have
not
provided
information
which
persuades
us
that
our
final
decisions
are
erroneous
or
inappropriate.
While
we
do
not
agree
with
Petitioners'
claims,
we
have
decided
to
grant
reconsideration
on
these
issues
in
an
interest
of
ensuring
a
full
opportunity
for
comment.
Each
of
these
issues
is
described
in
detail
below.

C.
Schedule
for
Reconsideration
Our
final
decision
on
reconsideration
for
all
the
issues
in
the
petitions
for
reconsideration
will
be
issued
no
later
than
the
date
by
which
we
take
final
action
on
the
issues
for
which
we
have
decided
to
grant
reconsideration.
We
plan
to
take
final
action
on
all
issues
approximately
180
days
after
publication
of
today's
notice.

III.
Discussion
of
Issues
A.
Legal
Basis
As
set
forth
in
the
preamble
to
the
final
rule,
we
have
ample
legal
authority
for
our
final
ERP
rule.
See
68
FR
61268­
73.
It
is
a
basic
tenant
of
administrative
law
that
expert
agencies
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
16
have
discretion
to
interpret
ambiguous
statutory
terms.
Chevron,
U.
S.
A.
Inc.
v.
NRDC,
467
U.
S.

837
(
1984).
That
is
exactly
what
we
did
in
the
ERP.
NSR
applies
to
new
and
"
modified"

sources.
The
CAA
defines
"
modification"
as
"
any
physical
change
in,
or
change
in
the
method
of
operation
of,
a
stationary
source
which
increases
the
amount
any
air
pollutant
emitted
from
such
source
of
which
results
in
the
emission
of
any
air
pollutant
not
previously
emitted."
CAA
sec.

111(
a)(
4)
(
emphasis
added);
CAA
sec.
169(
2)(
C);
CAA
sec.
171(
4).
Unfortunately,
the
CAA
does
not
define
"
change."
We
historically
have
defined
"
change"
as
not
including,
among
other
things,
"
routine
maintenance,
repair,
and
replacement"
of
existing
sources.
See
40
CFR
51.165(
a)(
1)(
v)(
C)(
1);
40
CFR
51.166(
b)(
2)(
iii)(
a);
40
CFR
52.21(
b)(
2)(
iii)(
a).
But
prior
to
our
ERP
rule,
our
regulations
did
not
define
RMRR.
Our
ERP
rule
was
an
exercise
of
our
Chevron
authority
to
define
that
term
and
create
a
brightline
for
determining
whether
or
not
particular
activities
qualify
as
RMRR.

Petitioners
allege
that
we
did
not
afford
an
adequate
opportunity
to
comment
on
the
legal
basis
for
our
ERP
rule.
To
support
their
claim,
petitioners
point
to
the
difference
in
the
length
of
the
legal
analysis
discussion
in
the
final
rule
as
compared
to
the
proposed
rule.
We
disagree
with
petitioners
assertion,
and
believe
that
commenters
had
sufficient
notice
and
opportunity
to
comment
on
our
legal
analysis.
Nevertheless,
we
have
decided
to
solicit
additional
comments
on
our
legal
basis
for
adopting
the
ERP
rule,
as
described
in
preamble
to
the
proposed
rule
and
section
III.
N
of
the
final
rule.
68
FR
61268­
73.

We
have
received
numerous
comments
regarding
our
legal
authority
to
promulgate
the
ERP
rule.
Some
have
suggested
that
we
could
justify
our
rule
under
a
"
Chevron
I"
analysis,
since
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
17
the
statute,
in
their
estimation,
is
clear
on
its
face.
Others
cite
our
de
minimis
authority,
as
articulated
in
Alabama
Power
Co.
v.
Costle,
606
F.
2d
323,
360
­
61
(
D.
C.
Cir.
1979).
At
least
one
commenter
argued
that
the
ERP
rule
was
within
our
recognized
authority
to
establish
"
brightlines"
to
reduce
regulatory
cost
or
establish
certainty.
See
Time
Warner
Entertainment
Co.
LP
v
F.
C.
C.,
240
F.
3d
1126,
1141
(
D.
C.
Cir.
2001).
Several
commenters
questioned
whether
we
have
any
authority
to
exempt
any
"
changes"
from
within
the
scope
of
the
statutory
definition
of
"
modification."
We
invite
comment
on
all
of
these
as
well
as
other
possible
legal
arguments.
With
respect
to
the
issue
of
whether
the
modifier
"
any"
in
the
definition
of
modification
compels
the
agency
to
adopt
the
broadest
possible
construction
of
"
physical
change,"
we
solicit
comments
on
the
recent
Supreme
Court
case,
Nixon
v.
Missouri
Municipal
League,
___
U.
S.
___,
124
S.
Ct.
1555,
1561
(
2004).
That
case
noted
that
Congress's
understanding
of
"
any"
can
differ
depending
upon
the
statutory
setting.
Id.

B.
The
20
Percent
Replacement
Cost
Threshold
In
the
December
31,
2002,
proposed
rule,
EPA
solicited
comments
on
the
ERP
approach.

At
that
time,
we
solicited
comments
on
a
range
of
possible
percentages
of
cost
that
could
serve
as
one
of
the
criteria
that
must
be
met
to
qualify
for
the
RMRR­
ERP
exclusion
from
NSR.
We
solicited
comment
on
percentages
ranging
up
to
50
percent,
the
threshold
for
reconstruction
under
the
NSPS
program.
67
FR
at
80301.

In
the
final
rule
promulgating
the
ERP,
we
presented
policy
arguments
and
data
analyses
supporting
20
percent
of
replacement
costs
of
a
process
unit
as
the
threshold
cost
for
exclusion
from
NSR.
68
FR
at
61255­
58.
In
our
summary
of
the
basis
of
the
rule,
we
discussed
an
analysis
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
18
of
the
cost
of
replacements
in
six
industries
outside
the
electric
generating
sector.
This
analysis,

which
appears
in
Appendix
C
to
the
Regulatory
Impact
Analysis,
was
finalized
in
August
of
2003
and
is
in
the
docket
for
this
rule.
See
docket
entries
OAR­
2002­
0068­
2207
to
2213.

Additionally,
we
compared
the
cost
of
the
improvements
at
issue
in
Wisconsin
Electric
Power
Company
v.
Reilly,
893
F.
2d
901
(
7th
Cir.
1990)
("
WEPCO"),
and
found
that
the
costs
of
the
improvements
at
issue
in
WEPCO
would
have
been
greater
than
the
threshold
established
by
the
ERP.
Furthermore,
we
discussed
analyses
of
comments
provided
by
the
Utility
Air
Regulatory
Group
("
UARG")
and
the
American
Lung
Association.
See
docket
entries
OAR­
2002­
0068­
1150
and
­
1213
through
­
1221.

Petitioners
ask
that
EPA
reconsider
the
20
percent
threshold,
and
claim
that
none
of
EPA's
arguments
supporting
the
threshold
had
appeared
in
the
proposed
rule.
While
the
petitioners'
claim
is
overly
broad,
we
nevertheless
are
soliciting
comment
on
the
data,
our
analyses,
and
the
policy
considerations
supporting
the
20
percent
threshold.
Commenters
should
refer
to
section
III.
C,
"
What
Cost
Limit
Has
Been
Placed
on
the
Equipment
Replacement
Approach?"
in
our
final
rule
for
our
discussion
of
the
data
and
our
analyses.
We
invite
comment
on
the
matters
discussed
therein,
as
well
as
on
the
docket
entries
cited
above.
We
also
request
any
new
data
or
approach
that
supports
or
rejects
a
20
percent
cost
threshold
for
the
ERP.

While
not
discussed
in
the
ERP
final
rule,
we
recently
compared
our
selection
of
a
20
percent
cost
threshold
for
the
ERP
with
another
regulatory
program
in
the
United
States
 
construction
building
codes.
We
believe
that
determining
when
like­
kind
and
functionally
equivalent
equipment
replacements
must
undergo
additional
scrutiny
for
state­
of­
the­
art
controls
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
19
is
similar
to
determining
when,
in
the
process
of
adding
on
to
or
renovating
a
building
structure,

should
an
owner
of
the
building
be
required
to
bring
it
up
to
current
safety
code.
When
a
renovation
meets
certain
criteria,
a
jurisdiction
may
deem
it
necessary
to
mandate
"
supplemental
requirements,"
meaning
the
owner
of
the
building
must
bring
up
to
current
building
code
part
or
all
of
the
existing
structure
in
order
to
receive
a
permit
for
the
renovation.
Consequently,

triggering
applicability
for
a
jurisdiction's
building
code
is
an
important
consideration
in
evaluating
a
renovation
of
an
existing
building,
as
it
can
substantially
increase
the
cost
of
the
renovation.
In
the
same
respect,
triggering
major
NSR
for
replacing
process
equipment
can
cause
a
substantial
increase
in
cost
of
the
project
when
installation
of
state­
of­
the­
art
control
systems
are
determined
necessary.
Thus,
with
this
mutual
dependence
on
cost,
comparing
each
program's
cost
threshold
is
useful.

In
our
investigation,
we
found
that
primary
responsibility
for
codes
governing
building
construction
appears
to
reside
with
local
governments.
While
states
may
adopt
broad
levels
of
codes,
they
generally
delegate
the
permitting
and
inspecting
authority
to
counties
and
cities.

Many
jurisdictions
use
a
nationally
developed
model
code
but
then
tailor
it
to
local
conditions.

We
also
found
that
determining
when
building
code
applicability
is
triggered
is
not
directed
by
any
national
governing
body;
rather,
state
or
local
governments
use
their
own
best
judgment
in
determining
appropriate
criteria
or
thresholds
for
code
applicability.

Some
jurisdictions
specify
a
percentage
threshold
for
determining
what
constitutes
a
building
"
improvement,"
and
require
such
improvements
to
comply
with
the
current
code.
Some
codes
differentiate
between
types
of
improvements,
with
separate
requirements
for
each
type.
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
20
Jurisdictions
establish
a
threshold
for
"
substantial
improvements,"
for
which
an
activity
will
trigger
the
applicability
of
current
codes
to
an
entire
building.
The
most
common
threshold
is
50
percent,
based
on
cost
of
the
improvement
as
compared
to
the
pre­
improvement
building
value.

Such
a
finding
persuades
us
that
establishing
a
percentage­
based
threshold
for
determining
RMRR
applicability
is
not
arbitrary,
and
that
selection
of
a
20
percent
cost
threshold
(
with
the
possibility
that
higher
cost
activities
can
be
RMRR
if
the
conditions
of
the
multifactor
test
are
met)
for
protection
of
health
is
comparable
in
magnitude
to
an
absolute
50
percent
cost
threshold
used
when
upgrading
buildings
for
safety
purposes.
We
sampled
a
diverse
array
of
governments
that
utilize
a
percent
threshold
for
triggering
applicable
building
codes,
but
we
cannot
predict
whether
the
sample
is
representative
of
all
jurisdictions
or
whether
use
of
a
noncost
threshold
to
trigger
code
applicability
is
more
often
used.

Additional
information
on
our
research
into
building
codes
is
in
our
docket.
See
Docket
OAR­
2002­
0068;
Document
No.
_____.
We
solicit
comment
on
the
accuracy
and
representation
of
this
information
and
whether
it
is
appropriate
to
consider
approaches
used
in
building
code
applicability
when
establishing
criteria
for
RMRR
determinations.

C.
Revisions
to
the
Format
for
Incorporating
the
PSD
FIP
into
State
Plans
The
December
24,
2003,
final
rule
revised
the
PSD
provision
in
each
state
plan
that
lacked
an
approved
state
regulation
concerning
PSD.
In
lieu
of
an
approved
PSD
SIP,
each
of
these
state
plans
contained
a
reference
incorporating
the
relevant
provisions
of
40
CFR
52.21,
the
PSD
FIP,
that
applied
within
the
state.
Prior
to
the
December
24th
rule,
we
incorporated
the
relevant
paragraphs
of
40
CFR
52.21
by
referring
to
the
range
of
paragraphs
from
the
first
paragraph
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
21
incorporated
to
the
last
paragraph.
For
example,
the
March
10,
2003
referred
to
the
incorporated
paragraphs
of
section
52.21
as
  (
a)(
2)
and
(
b)
to
(
bb).''
This
format
required
updates
every
time
we
added
paragraphs
to
section
52.21.
These
periodic
updates
introduced
the
possibility
of
typographical
errors
in
the
CFR
and
confusion
during
the
period
between
updates.
The
December
24th
rule
adopted
a
different
cross­
referencing
format­­  
40
CFR
52.21
except
paragraph
(
a)(
1).''

Under
the
new
format,
the
cross­
references
would
automatically
update
whenever
new
sections
were
added
to
the
PSD
FIP.

A
group
of
petitioners
seek
reconsideration
of
the
new
format.
We
seek
comment
on
the
new
format
for
referencing
the
PSD
FIP.
We
seek
comment
only
on
the
issue
of
the
new
format
and
its
ability
to
automatically
update
whenever
EPA
modifies
the
PSD
FIP.
At
this
time,
we
do
not
seek
comment
on
a
second
issue
raised
in
the
petition
for
reconsideration,
which
is
whether
EPA
must
make
a
new
finding
of
deficiency
regarding
the
SIP
before
updating
the
state
plans
to
reflect
the
ERP.

IV.
Statutory
and
Executive
Order
Reviews
On
October
27,
2003,
we
finalized
rule
changes
to
the
regulations
governing
the
NSR
programs
mandated
by
parts
C
and
D
of
title
I
of
the
Act.
With
today's
action
we
are
proposing
no
changes
to
the
final
rules,
and
are
seeking
additional
comments
on
some
of
the
provisions
finalized
in
the
October
2003
Federal
Register
notice
(
68
FR
61248).
Accordingly,
we
believe
that
the
rationale
provided
with
the
final
rules
is
still
applicable
and
sufficient.

A.
Executive
Order
12866
­
Regulatory
Planning
and
Review
Under
Executive
Order
12866
[
58
Federal
Register
51,735
(
October
4,
1993)],
we
must
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
22
determine
whether
the
regulatory
action
is
"
significant"
and
therefore
subject
to
review
by
the
Office
of
Management
and
Budget
(
OMB)
and
the
requirements
of
the
Executive
Order.
The
Executive
Order
defines
"
significant
regulatory
action"
as
one
that
is
likely
to
result
in
a
rule
that
may:

(
1)
Have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
tribal
governments
or
communities;

(
2)
Create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;

(
3)
Materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs,
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
Raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

Pursuant
to
the
terms
of
Executive
Order
12866,
OMB
has
notified
us
that
it
considers
this
an
"
economically
significant
regulatory
action"
within
the
meaning
of
the
Executive
Order.

We
have
submitted
this
action
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.
All
written
comments
from
OMB
to
EPA
and
any
written
EPA
response
to
any
of
those
comments
are
included
in
the
docket
listed
at
the
beginning
of
this
notice
under
ADDRESSES.

B.
Executive
Order
13132
­
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
23
us
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications."
"
Policies
that
have
federalism
implications"
are
defined
in
the
Executive
Order
to
include
regulations
that
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."

Today's
action
does
not
have
federalism
implications.
Nevertheless,
as
described
in
section
II.
C
of
the
October
27,
2003
notice,
in
developing
the
ERP,
we
consulted
with
affected
parties
and
interested
stakeholders,
including
State
and
local
authorities,
to
enable
them
to
provide
timely
input
in
the
development
of
this
rule.
Today's
action
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
State
and
local
programs,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
We
expect
the
ERP
will
result
in
some
expenditures
by
the
States,
we
expect
those
expenditures
to
be
limited
to
$
580,000
for
the
estimated
112
affected
reviewing
authorities.
This
estimate
reflects
the
small
increase
in
burden
imposed
upon
reviewing
authorities
in
order
for
them
to
revise
their
State
Implementation
Plans
(
SIP).
However,
this
revision
provides
sources
permitted
by
the
States
greater
certainty
in
application
of
the
program,
which
should
in
turn
reduce
the
overall
burden
of
the
program
on
State
and
local
authorities.
Thus,
the
requirements
of
Executive
Order
13132
do
not
apply
to
this
rule.

C.
Executive
Order
13175
­
Consultation
and
Coordination
with
Indian
Tribal
Governments
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
24
Executive
Order
13175,
entitled
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
(
65
FR
67249,
November
6,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications."
We
believe
that
this
rule
does
not
have
tribal
implications
as
specified
in
Executive
Order
13175.
Thus,
Executive
Order
13175
does
not
apply.

The
purpose
of
the
ERP
is
to
add
greater
flexibility
to
the
existing
major
NSR
regulations.

These
changes
will
benefit
reviewing
authorities
and
the
regulated
community,
including
any
major
source
owned
by
a
tribal
government
or
located
in
or
near
tribal
land,
by
providing
increased
certainty
as
to
when
the
requirements
of
the
major
NSR
program
apply.
Taken
as
a
whole,
the
ERP
should
result
in
no
added
burden
or
compliance
costs
and
should
not
substantially
change
the
level
of
environmental
performance
achieved
under
the
previous
rules
and
guidance.

We
anticipate
that
initially
these
changes
will
result
in
a
small
increase
in
the
burden
imposed
upon
reviewing
authorities
in
order
for
them
to
be
included
in
the
State's
SIP.

Nevertheless,
these
options
and
revisions
will
ultimately
provide
greater
operational
flexibility
to
sources
permitted
by
the
States,
which
will
in
turn
reduce
the
overall
burden
on
the
program
on
State
and
local
authorities
by
reducing
the
number
of
required
permit
modifications.
In
comparison,
no
tribal
government
currently
has
an
approved
Tribal
Implementation
Plan
(
TIP)

under
the
CAA
to
implement
the
NSR
program.
The
Federal
government
is
currently
the
NSR
reviewing
authority
in
Indian
country.
Thus,
tribal
governments
should
not
experience
added
burden,
nor
should
their
laws
be
affected
with
respect
to
implementation
of
this
rule.

Additionally,
although
major
stationary
sources
affected
by
the
ERP
could
be
located
in
or
near
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
25
Indian
country
and/
or
be
owned
or
operated
by
tribal
governments,
such
affected
sources
would
not
incur
additional
costs
or
compliance
burdens
as
a
result
of
this
rule.
Instead,
the
only
effect
on
such
sources
should
be
the
benefit
of
the
added
certainty
and
flexibility
provided
by
the
rule.

We
recognize
the
importance
of
including
tribal
outreach
as
part
of
the
rulemaking
process.
In
addition
to
affording
tribes
an
opportunity
to
comment
on
the
ERP,
on
which
two
tribes
did
submit
comments,
we
have
also
alerted
tribes
of
this
action
through
our
website
and
quarterly
newsletter.
EPA
specifically
solicits
additional
comments
on
today's
notice
from
tribal
officials.

D.
Executive
Order
13045
­
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
Executive
Order
13045,
"
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks"
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that
(
1)
is
determined
to
be
"
economically
significant"
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
we
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonable
alternatives
that
we
considered.

This
notice
is
not
subject
to
Executive
Order
13045,
because
we
do
not
have
reason
to
believe
the
environmental
health
or
safety
risks
addressed
by
this
action
present
a
disproportionate
risk
to
children.
We
believe
that,
based
on
our
analysis
of
electric
utilities,
this
rule
as
a
whole
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
26
will
result
in
equal
or
better
environmental
protection
than
currently
provided
by
the
existing
regulations,
and
do
so
in
a
more
streamlined
and
effective
manner.

E.
Paperwork
Reduction
Act
This
action
does
not
impose
any
new
information
collection
burden.
We
are
not
proposing
any
new
paperwork
(
e.
g.,
monitoring,
reporting,
recordkeeping)
as
part
of
today's
notice.
With
this
action
we
are
seeking
additional
comments
on
some
of
the
provisions
finalized
in
two
Federal
Register
notices,
the
ERP
(
68
FR
61248
(
Oct.
27,
2003)),
and
the
related
FIP
update
(
68
FR
74483
(
Dec.
24,
2003)).
However,
the
information
collection
requirements
in
the
ERP
have
been
submitted
for
approval
to
OMB
under
the
requirements
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
An
ICR
document
has
been
prepared
by
EPA
(
ICR
No.

1230.14),
and
a
copy
may
be
obtained
from
Susan
Auby,
U.
S.
Environmental
Protection
Agency,

Office
of
Environmental
Information,
Collection
Strategies
Division
(
2822T),
1200
Pennsylvania
Avenue,
NW,
Washington,
DC
20460­
0001,
by
e­
mail
at
auby.
susan@
epa.
gov,
or
by
calling
(
202)
566­
1672.
A
copy
may
also
be
downloaded
off
the
internet
at
http://
www.
epa.
gov/
icr.
The
information
requirements
included
in
ICR
No.
1230.14
are
not
enforceable
until
OMB
approves
them.

The
information
that
ICR
No.
1230.14
covers
is
required
for
the
submittal
of
a
complete
permit
application
for
the
construction
or
modification
of
all
major
new
stationary
sources
of
pollutants
in
attainment
and
nonattainment
areas,
as
well
as
for
applicable
minor
stationary
sources
of
pollutants.
This
information
collection
is
necessary
for
the
proper
performance
of
EPA's
functions,
has
practical
utility,
and
is
not
unnecessarily
duplicative
of
information
we
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
27
otherwise
can
reasonably
access.
We
have
reduced,
to
the
extent
practicable
and
appropriate,
the
burden
on
persons
providing
the
information
to
or
for
EPA.
In
fact,
we
feel
that
this
rule
will
result
in
less
burden
on
industry
and
reviewing
authorities
since
it
streamlines
the
process
of
determining
whether
a
replacement
activity
is
RMRR.

However,
according
to
ICR
No.
1230.14,
we
do
anticipate
an
initial
increase
in
burden
for
reviewing
authorities
as
a
result
of
the
rule
changes,
to
account
for
revising
state
implementation
plans
to
incorporate
these
rule
changes.
As
discussed
above,
we
expect
those
one­
time
expenditures
to
be
limited
to
$
580,000
for
the
estimated
112
affected
reviewing
authorities.
For
the
number
of
respondent
reviewing
authorities,
the
analysis
uses
the
112
reviewing
authorities
count
used
by
other
permitting
ICR's
for
the
one­
time
tasks
(
for
example,
SIP
revisions).

Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purpose
of
responding
to
the
information
collection;
adjust
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
respond
to
a
collection
of
information;
search
existing
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.

An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to,
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
are
listed
in
40
CFR
part
9
and
48
CFR
chapter
15.
We
will
continue
to
present
OMB
control
numbers
in
a
consolidated
table
format
to
be
codified
in
40
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
28
CFR
part
9
of
the
Agency's
regulations,
and
in
each
CFR
volume
containing
EPA
regulations.

The
table
lists
the
section
numbers
with
reporting
and
recordkeeping
requirements,
and
the
current
OMB
control
numbers.
This
listing
of
the
OMB
control
numbers
and
their
subsequent
codification
in
the
CFR
satisfy
the
requirements
of
the
Paperwork
Reduction
Act
(
44
U.
S.
C.
3501
et
seq.)
and
OMB's
implementing
regulations
at
5
CFR
part
1320.

F.
Regulatory
Flexibility
Act
(
RFA),
as
Amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
U.
S.
C.
601
et
seq.

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
the
ERP
on
small
entities,
small
entity
is
defined
as:
(
1)
any
small
business
employing
fewer
than
500
employees;
(
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
today's
action
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.

In
determining
whether
a
rule
has
a
significant
economic
impact
on
a
substantial
number
of
small
entities,
the
impact
of
concern
is
any
significant
adverse
economic
impact
on
small
entities,
since
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
29
the
primary
purpose
of
the
regulatory
flexibility
analyses
is
to
identify
and
address
regulatory
alternatives
"
which
minimize
any
significant
economic
impact
of
this
rule
on
small
entities."
5
U.
S.
C.
Sections
603
and
604.
Thus,
an
agency
may
conclude
that
a
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
if
the
rule
relieves
regulatory
burden,
or
otherwise
has
a
positive
economic
effect
on
all
of
the
small
entities
subject
to
the
rule.

The
ERP
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
because
it
will
decrease
the
regulatory
burden
of
the
existing
regulations
and
have
a
positive
effect
on
all
small
entities
subject
to
the
rule.
The
ERP
improves
operational
flexibility
for
owners
or
operators
of
major
stationary
sources
and
clarifies
applicable
requirements
for
determining
if
a
change
qualifies
as
a
major
modification.
We
have
therefore
concluded
that
the
ERP
will
relieve
regulatory
burden
for
all
small
entities.
We
do
not
expect
that
today's
action
will
change
our
overall
assessment
of
regulatory
burden
so
substantially
as
to
result
in
a
significant
adverse
impact
on
any
source.
As
a
result,
we
do
not
expect
that
today's
action
will
result
in
a
significant
adverse
impact
on
any
entity.

We
continue
to
be
interested
in
the
potential
impacts
of
today's
action
on
small
entities
and
welcome
comments
on
issues
related
to
such
impacts.

G.
Unfunded
Mandates
Reform
Act
of
1995
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Public
Law
104­
4,

establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
tribal
governments
and
the
private
sector.
Under
section
202
of
UMRA,
we
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
30
final
rules
with
"
Federal
mandates"
that
may
result
in
expenditures
to
State,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector
of
$
100
million
or
more
in
any
one
year.

Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
us
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
us
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective,
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.

Before
we
establish
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
tribal
governments,
we
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
our
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.

We
believe
the
ERP
will
actually
reduce
the
regulatory
burden
associated
with
the
major
NSR
program
by
improving
the
operational
flexibility
of
owners
or
operators
and
clarifying
the
requirements.
Because
we
are
proposing
no
changes
to
the
final
rule,
we
believe
that
the
same
is
true
for
today's
notice.
Because
the
program
changes
provided
in
the
rule
are
not
expected
to
result
in
a
significant
increase
in
the
expenditure
by
State,
local,
and
tribal
governments,
or
the
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
31
private
sector,
we
have
not
prepared
a
budgetary
impact
statement
or
specifically
addressed
the
selection
of
the
least
costly,
most
cost­
effective,
or
least
burdensome
alternative.
Because
small
governments
will
not
be
significantly
or
uniquely
affected
by
this
rule,
we
are
not
required
to
develop
a
plan
with
regard
to
small
governments.
Therefore,
this
rule
is
not
subject
to
the
requirements
of
section
203
of
the
UMRA.

H.
National
Technology
Transfer
and
Advancement
Act
of
1995
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(
NTTAA),
Public
Law
No.
104­
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
us
to
use
voluntary
consensus
standards
(
VCS)
in
our
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
VCS
are
technical
standards
(
for
example,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
us
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
VCS.

Although
the
ERP
does
involve
the
use
of
technical
standards,
it
does
not
preclude
the
State,
local,
and
tribal
reviewing
agencies
from
using
VCS.
The
ERP
is
an
improvement
of
the
existing
NSR
permitting
program.
As
such,
it
only
ensures
that
promulgated
technical
standards
are
considered
and
appropriate
controls
are
installed,
prior
to
the
construction
of
major
sources
of
air
emissions.
Therefore,
we
are
not
considering
the
use
of
any
VCS
in
the
ERP.

I.
Executive
Order
13211
­
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
32
This
notice
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,

"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"

(
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.

The
ERP
improves
the
ability
of
sources
to
maintain
the
reliability
of
production
facilities,

and
effectively
utilize
and
improve
existing
capacity.

J.
Executive
Order
12988
­
Civil
Justice
Reform
This
final
rule
does
not
have
any
preemptive
or
retroactive
effect.
This
action
meets
applicable
standards
in
sections
3(
a)
and
3(
b)(
2)
of
Executive
Order
12988,
Civil
Justice
Reform,

to
minimize
litigation,
eliminate
ambiguity,
and
reduce
burden.

V.
Statutory
Authority
The
statutory
authority
for
this
action
is
provided
by
sections
101,
111,
114,
116,
and
301
of
the
CAA
as
amended
(
42
U.
S.
C.
7401,
7411,
7414,
7416,
and
7601).
This
rulemaking
is
also
subject
to
section
307(
d)
of
the
CAA
(
42
U.
S.
C.
7407(
d)).
6­
22­
04
Draft
of
ERP
Reconsideration
FRN
 
Do
Not
Quote,
Cite,
or
Release
33
List
of
Subjects
in
40
CFR
Parts
51
and
52
Environmental
protection,
Administrative
practices
and
procedures,
Air
pollution
control,

Intergovernmental
relations.

___________________
______________________________________

Michael
O.
Leavitt
Administrator
