
[Federal Register: May 14, 2009 (Volume 74, Number 92)]
[Rules and Regulations]               
[Page 22693-22696]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my09-11]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2003-0064; FRL-8904-5]
RIN 2060-AP49

 
Prevention of Significant Deterioration (PSD) and Nonattainment 
New Source Review (NSR): Aggregation

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action on a rule that amends and delays the effective date for the rule 
addressing ``aggregation'' under the Prevention of Significant 
Deterioration (PSD) and the nonattainment New Source Review 
(nonattainment NSR) programs (collectively, ``NSR''). The ``NSR 
Aggregation Amendments'' were published in the Federal Register on 
January 15, 2009, and described when a source must combine nominally-
separate physical changes and changes in the method of operation for 
the purpose of determining whether they are a single change resulting 
in a significant emissions increase.
    On January 30, 2009, the Natural Resources Defense Council (NRDC) 
submitted a petition for reconsideration (the ``NRDC Petition'') of the 
NSR Aggregation Amendments. In response to the NRDC Petition, EPA 
announced on February 13, 2009, that it would convene a reconsideration 
proceeding for the NSR Aggregation Amendments and would delay the 
effective date of the rule from February 17, 2009 until May 18, 2009. 
On March 18, 2009, EPA proposed an additional delay of the effective 
date and solicited comment on the duration of the additional delay.
    By this rule, EPA is delaying the effective date of the NSR 
Aggregation Amendments for an additional 12 months, which will allow 
for sufficient time to conduct the reconsideration proceeding. The new 
effective date of the rule is May 18, 2010.

DATES: The effective date of FR Doc. E9-815, published in the Federal 
Register on January 15, 2009 (74 FR 2376), and delayed on February 13, 
2009 (74 FR 7284), is further delayed to May 18, 2010.

ADDRESSES: Docket: The final rule, the petition for reconsideration, 
comments on the March 18, 2009 proposal, and all other documents in the 
record for the NSR Aggregation rulemaking are in Docket ID. No. EPA-HQ-
OAR-2003-0064. All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation Docket 
and Information Center, EPA/DC, EPA West Building, Room 3334, 1301 
Constitution Ave., NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744.

FOR FURTHER INFORMATION CONTACT: Mr. David J. Svendsgaard, Air Quality 
Policy Division, Office of Air Quality Planning and Standards (C504-
03), U.S. Environmental Protection Agency, Research Triangle Park, NC 
27711, telephone (919) 541-2380, fax number (919) 541-5509, e-mail 
address: svendsgaard.dave@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this action include sources in all 
industry groups and state, local, and tribal governments.

B. How is this preamble organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. How is this preamble organized?
II. Background
III. Summary of Public Comments Received
IV. Additional Twelve Month Delay of Effectiveness
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Analysis
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12899: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Judicial Review
VI. Statutory Authority

II. Background

    On January 15, 2009, the EPA (we) issued a final rule amending our 
PSD and nonattainment NSR regulations implementing the definition of 
``modification'' in the Clean Air Act (CAA) 111(a)(4). The amendments 
addressed when a source must combine (aggregate) nominally-separate 
physical changes and changes in the method of operation (known as 
``activities'') for the purpose of determining whether they are a 
single change resulting in a significant emission increase. The 
amendments retained the rule language for aggregation but interpreted 
that rule text to mean that sources and permitting authorities should 
combine emissions when activities are ``substantially related.'' The 
rule also adopted a rebuttable presumption that activities at a plant 
can be presumed not to be substantially related if they occur three or 
more years apart. Collectively, this rulemaking is known as the ``NSR 
Aggregation Amendments.'' For further information on the NSR 
Aggregation Amendments, please see 74 FR 2376 (January 15, 2009).
    On January 30, 2009, NRDC submitted a petition for reconsideration 
of the NSR Aggregation Amendments as provided for in CAA 
307(d)(7)(B).\1\\\ Under that CAA provision, the Administrator may 
commence a reconsideration proceeding if the petitioner raises an 
objection to a rule that was impracticable to raise during the comment 
period or if the grounds for the objection arose after the comment 
period. In either case, the objection must be of central relevance to 
the outcome of the rule. The Administrator may stay the effectiveness 
of the rule for up to three months during such reconsideration.
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    \1\ John Walke, Natural Resources Defense Council, EPA-HQ-OAR-
2003-0064-0116.1.
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    On February 13, 2009, we issued notices announcing the convening of 
a

[[Page 22694]]

reconsideration proceeding in response to the NRDC petition and an 
administrative stay of the NSR Aggregation Amendments, which delayed 
the effective date of the NSR Aggregation Rule for 90 days from 
February 17, 2009 until May 18, 2009. See 74 FR 7193 and 74 FR 7284 
(February 13, 2009).
    As noted above, our authority to delay the effective date of a rule 
solely under the Administrator's discretion is limited to three months. 
On occasion, however, we have found three months to be insufficient to 
complete the necessary steps in the reconsideration process. Therefore, 
when we have issued similar administrative stays in the past, it has 
often been our practice to also propose an additional extension of the 
stay of effectiveness through a rulemaking process. An additional 
extension enables us to take comment on issues that are in question and 
complete any revisions of the rule that become necessary as a result of 
the reconsideration process.
    Since we expect to take comment on a broad range of legal and 
policy issues as part of the NSR Aggregation Amendments 
reconsideration, on March 18, 2009 (74 FR 11509), we proposed to 
further delay the effective date of the NSR Aggregation Amendments 
until November 18, 2009. We also solicited comment on longer periods 
for a delay of effectiveness: (1) Until February 18, 2010, and (2) May 
18, 2010.

III. Summary of Public Comments Received

    We received five comments from interested parties on our March 18, 
2009 proposal to delay the effective date of the NSR Aggregation 
Amendments. Most of the commenters requested that we not further delay 
the effective date of the rule after May 18, 2009. These commenters 
expressed concerns that sources need more clarity and certainty on the 
issue of aggregation, and leaving the NSR Aggregation Amendments in 
place during the reconsideration proceeding would provide greater 
clarity to sources even if we ultimately decide to change the rule.
    While it is understandable that commenters may perceive a need for 
more clarity in the program, we are concerned that making effective a 
rule that may later change may actually result in more confusion for 
both sources and permitting authorities. We also are concerned that 
portions of the legal basis for the final rule did not undergo comment 
solicitation, so we would be remiss to let the rule become effective 
prior to letting the public comment fully on the basic authority for 
the rule. Furthermore, a few of the issues raised in the NRDC Petition 
demonstrate that there are aspects of the final rule that still cause 
confusion, such as whether states must adopt the new rule and whether 
SIPs must be amended. These issues were not adequately addressed in the 
final rule. An additional delay of effectiveness that allows us to 
address these defects is necessary and prudent.
    One commenter claimed it would be inappropriate for EPA to use 
section 705 of the Administrative Procedures Act (APA) to further 
postpone the effective date of the rule. However, because we do not 
rely on that statutory provision for this extension notice, the 
question is not relevant to this rule.
    This commenter also suggested that the January 21, 2009 memorandum 
from the Director of the Office of Management and Budget (OMB) created 
an outside limit of 60 days for reconsideration of rules published 
prior to January 20, 2009.\2\ However, nothing in the OMB memorandum 
supersedes the procedural and substantive requirements of the CAA. For 
example, section 307(d) provides the public the procedural right to 
present oral testimony and a minimum period for parties to comment on 
the testimony. The time frame allowed by the statute would be difficult 
to reconcile with the period in the memorandum.
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    \2\ OMB Memorandum M-09-08, ``Implementation of Memorandum 
Concerning Regulatory Review'' (January 21, 2009). See http://
www.whitehouse.gov/omb/assets/agencyinformation_memoranda_2009_
pdf/m09-08.pdf.
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    Another commenter stated we lack authority to extend the effective 
date more than 90 days under the specific provisions of CAA section 
307(d). The commenter argues that we can only amend the effective date 
in a new ``substantive'' rulemaking. We disagree with the commenter's 
analysis of the statute.
    First, the provision allowing for a three month stay of 
effectiveness of the rule is an authority that either a court or EPA 
may use at its discretion without notice or an opportunity for comment. 
While CAA section 307(d)(7)(B) provides that this type of a stay may 
not ``exceed three months,'' this limitation is best understood as 
applying to the plenary authority to grant a stay without notice and 
comment. There is nothing in this CAA provision indicating that it 
strips EPA of the authority to amend any provision it establishes 
through notice and comment rulemaking by a subsequent notice and 
comment rulemaking. See National Cable & Telecomms. Ass'n v. Brand X 
Internet Servs., 125 S. Ct. 2688, 2700 (2005). That is the procedure we 
have undertaken in this action.
    Second, the commenter recognizes that a new ``substantive'' rule 
following the rulemaking procedures of CAA section 307(d) could shift 
an effective date. We find no distinction in CAA section 307(d) between 
what the commenter terms a ``substantive'' amendment and an amendment 
modifying when the rule becomes effective, especially when such a 
rulemaking is completed before the original rule becomes effective. The 
commenter's interpretation of the statute would require as a matter of 
law the irrational result that EPA would have to allow a defective rule 
to nevertheless go into effect even if it could complete a rulemaking 
revising the effective date in time, or if it could not complete a 
potentially more complicated rulemaking amendment to address the rule's 
shortcomings in the same amount of time. However, EPA need not even 
have to find that a rule is defective before it can undertake notice 
and comment to revise any part of the rule, as long as the basis for 
the revisions is reasonable. Thus, like any other provision of a CAA 
section 307(d) rule, we are authorized to change the effective date of 
the final rule through rulemaking.
    While most commenters were opposed to a further extension of the 
effective date of the NSR Aggregation Amendments, we note that one 
commenter concurred entirely with the objections raised in the NRDC 
petition and specifically pointed out a lack of tribal outreach in the 
development of the rule. The commenter requested a delay of three 
months to allow for tribal outreach, and a notice-and-comment 
rulemaking before a final action on aggregation takes effect. Since the 
issue of state, local, and tribal involvement under Executive Order 
12866 will be addressed as part of our reconsideration proceeding, we 
will fully respond to this commenter's concern through our 
reconsideration.

IV. Additional Twelve Month Delay of Effectiveness

    As noted above, we solicited comment on three potential periods of 
delay for the effective date of the NSR Aggregation Amendments. We now 
believe that allowing 12 additional months is more appropriate than a 
delay of six months, which was the preferred option at proposal, or 
nine months. This schedule allows for drafting and publishing a notice 
that focuses comment on specific issues to be reconsidered, provides a 
sufficient

[[Page 22695]]

opportunity for public comment on the reconsideration in accordance 
with the requirements of CAA section 307(d), and gives us an 
opportunity to evaluate and respond to such comments.
    We note that, over the recent past, reconsideration of NSR 
rulemakings like the Equipment Replacement Provision required nearly a 
year between the notice opening the comment period for reconsideration 
and the final action on reconsideration. See 69 FR 40278 (July 1, 2004) 
(opening of comments) and 70 FR 33838 (June 10, 2005) (final action). 
Given the degree of complexity with the issues under review here, the 
likelihood of significant public interest in this reconsideration, and 
our experience from recent NSR reconsiderations, we believe the delay 
we are adopting today is consistent with a realistic and achievable 
schedule for the reconsideration. While it is possible that we may 
require less time to complete the reconsideration, we believe extending 
the effective date by a full 12 months is reasonable and prudent.
    Section 553(d) of the APA, 5 U.S.C. Chapter 5, generally provides 
that rules may not take effect earlier than 30 days after they are 
published in the Federal Register. EPA is issuing this final rule under 
section 307(d)(1) of the CAA, which states: ``The provisions of section 
553 through 557 * * * of Title 5 shall not, except as expressly 
provided in this section, apply to actions to which this subsection 
applies.'' Thus, section 553(d) of the APA does not apply to this rule. 
EPA is nevertheless acting consistently with the policies underlying 
APA section 553(d) in making this rule effective on May 14, 2009. APA 
section 553(d) provides an exception when the agency finds good cause 
exists for a period less than 30 days before effectiveness. We find 
good cause exists to make this rule effective upon publication because 
doing so alleviates any potential confusion and implementation 
difficulties that could arise were the NSR Aggregation Amendments to go 
into effect for a 30 day period and then be stayed during 
reconsideration or modified as a result of the reconsideration process.
    The effective date of the NSR Aggregation Amendments, FR Doc. E9-
815, published in the Federal Register on January 15, 2009 (74 FR 
2376), is hereby delayed to May 18, 2010.

V. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    This final action is not a ``significant regulatory action'' under 
the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This final action does not impose any new information collection. 
However, OMB has previously approved the information collection 
requirements contained in the existing NSR regulations (40 CFR parts 51 
and 52) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., and has assigned OMB control number 2060-0003. The OMB 
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR 
part 9.

C. Regulatory Flexibility Analysis

    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 APA or any other 
statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of this final action on small 
entities, a ``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 final action will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act

    This final action contains no Federal mandates under the provisions 
of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538 for state, local, or tribal governments or the private 
sector. This final action will not increase the burden imposed upon 
reviewing authorities. Therefore, this final action is not subject to 
the requirements of sections 202 and 205 of the UMRA.
    This final action is also not subject to the requirements of 
section 203 of the UMRA because it contains no regulatory requirements 
that might significantly or uniquely affect small governments. As 
described above, this final action does not impose any new requirements 
on small governments.

E. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA 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'' is 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.''
    This final 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. This action simply stays the 
effective date of the January 15, 2009 rule for an additional 12 
months, pending a reconsideration proceeding. Thus, Executive Order 
13132 does not apply to this final action.

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

    This final action does not have tribal implications, as specified 
in Executive Order 13175 (65 FR 67249, November 9, 2000). This action 
simply stays the effective date of the January 15, 2009 rule for an 
additional 12 months, pending a reconsideration proceeding. Thus, 
tribal governments should not experience added burden from this final 
action, nor should their laws be affected with respect to 
implementation of this final action. Thus, Executive Order 13175 does 
not apply to this final action.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
final action is not subject to Executive Order 13045 because it does 
not establish an

[[Page 22696]]

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

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note), 
directs 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 (for example, materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This final action does not involve technical standards; therefore, 
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, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final action 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. Therefore, Executive Order 12898 does not apply to this 
final action.

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. EPA submitted 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This final action is not a ``major rule'' as defined by 5 
U.S.C. 804(2). Therefore, this final action will be effective on May 
14, 2009.

L. Judicial Review

    Under CAA section 307(b), judicial review of this final action is 
available only by filing a petition for review in the U.S. Court of 
Appeals for the District of Columbia Circuit on or before July 13, 
2009. Under CAA section 307(d)(7)(B), only those objections to the 
final rule that were raised with specificity during the period of 
public comment may be raised during judicial review. Moreover, under 
CAA section 307(b)(2), the requirements established by this final rule 
may not be challenged separately in any civil or criminal proceedings 
brought by EPA to enforce these requirements.

VI. Statutory Authority

    The statutory authority for this action is provided by sections 
307(d)(7)(B), 101, 111, 114, 116, and 301 of the CAA as amended (42 
U.S.C. 7401, 7411, 7414, 7416, and 7601). This notice is also subject 
to section 307(d) of the CAA (42 U.S.C. 7407(d)).

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Baseline emissions, Intergovernmental relations, 
Aggregation, Major modifications, Reporting and recordkeeping 
requirements.

40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Baseline emissions, Incorporation by reference, 
Intergovernmental relations, Aggregation, Major modifications, 
Reporting and recordkeeping requirements.

    Dated: May 8, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-11271 Filed 5-13-09; 8:45 am]

BILLING CODE 6560-50-P
