
[Federal Register: March 31, 2010 (Volume 75, Number 61)]
[Rules and Regulations]               
[Page 16012-16017]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr10-14]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2004-0014: FRL-9131-9; 2060-AP73]

 
Prevention of Significant Deterioration (PSD) and Nonattainment 
New Source Review (NSR): Inclusion of Fugitive Emissions; Final Rule; 
Stay

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this final action, EPA is issuing a stay for 18 months of 
the inclusion of fugitive emissions requirements in the federal 
Prevention of Significant Deterioration (PSD) program published in the 
Federal Register on December 19, 2008, in the final rule entitled, 
``Prevention of Significant Deterioration (PSD) and Nonattainment New 
Source Review (NSR): Reconsideration of Fugitive Emissions'' 
(``Fugitive Emissions Rule''). The Fugitive Emissions Rule under the 
federal PSD program requires that fugitive emissions be included in 
determining whether a physical or operational change results in a major 
modification only for sources in industries that have been designated 
through rulemaking under section 302(j) of the Clean Air Act (Act or 
CAA). The existing stay is in effect for 3 months; that is, from 
December 31, 2009 until March 31, 2010. This action puts in place an 
additional stay for 18 months, which we believe will allow for 
sufficient time for EPA to propose, take public comment on, and issue a 
final action concerning the inclusion of fugitive emissions in the 
federal PSD program.

DATES: The amendments to 40 CFR parts 51 and 52 in this rule are 
effective from April 1, 2010 through October 3, 2011. Effective April 
1, 2010, the following Code of Federal Regulations sections are 
administratively stayed until October 3, 2011: 40 CFR 
51.165(a)(1)(v)(G), (a)(1)(vi)(C)(3), (a)(1)(ix), (a)(1)(xxviii)(B)(2), 
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), 
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii), 
(a)(6)(iv), and (f)(4)(i)(D); 40 CFR 51.166, (a)(7)(iv)(b), (b)(2)(v), 
(b)(3)(iii)(c), (b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b), 
(b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), 
(b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and (w)(4)(i)(d); 40 CFR part 
51, Appendix S, paragraphs II.A.5(vii), II.A.6(iii), II.A.9, 
II.A.24(ii)(b), II.A.24(ii)(d), II.A.30(i)(a), II.A.30(ii)(a), 
II.A.30(iii), II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and 
IV.K.4(i)(d); and 40 CFR 52.21, (a)(2)(iv)(b), (b)(2)(v), 
(b)(3)(iii)(b), (b)(3)(iii)(c), (b)(20), (b)(41)(ii)(b), 
(b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), 
(b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and (aa)(4)(i)(d).

ADDRESSES: Docket: All documents in the docket are listed in the http:/
/www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC 20460. 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) 566-1742, and the telephone number for the Air Docket is (202) 
566-1744.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Wheeler, Air Quality Policy 
Division, (C504-03), U.S. Environmental Protection Agency, Research 
Triangle Park, NC 27711; telephone number (919) 541-9771; fax

[[Page 16013]]

number (919) 541-5509; or e-mail address: wheeler.carrie@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. The majority of sources potentially affected are 
expected to be in the following groups.

----------------------------------------------------------------------------------------------------------------
              Industry group                               SIC \a\                            NAICS \b\
----------------------------------------------------------------------------------------------------------------
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.
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.
Mining...................................  211, 212, 213..........................  21.
Agriculture, Fishing and Hunting.........  111, 112, 113, 115.....................  11.
----------------------------------------------------------------------------------------------------------------
\a\ Standard Industrial Classification.
\b\ North American Industry Classification System.

    Entities potentially affected by the subject rule for this proposed 
action also include state, local, and tribal governments.

B. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this final rule is also be available on the World Wide Web in the 
regulations and standards section of our NSR home page located at 
http://www.epa.gov/nsr.

C. How is this preamble organized?

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related 
information?
    C. How is this preamble organized?
II. This Action
    A. Background
    B. Final Rule
    C. Comments and Responses
    D. Basis for Making This Rule Effective on the Date of 
Publication
III. Statutory and Executive Order Review
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Determination Under Section 307(d)
    L. The Congressional Review Act
    M. Basis for Making This Rule Effective on the Date of 
Publication
IV. Statutory Authority

II. This Action

A. Background

    On December 19, 2008, the EPA (``we'') issued a final rule revising 
our requirements of the major NSR programs regarding the treatment of 
fugitive emissions (``Fugitive Emissions Rule''). 73 FR 77882. The 
final rule required fugitive emissions to be included in determining 
whether a physical or operational change results in a major 
modification only for sources in industries that have been designated 
through rulemaking under section 302(j) of the CAA. The final rule 
amended all portions of the major NSR program regulations: Permit 
requirements, the PSD program, and the emission offset interpretive 
ruling.
    On February 17, 2009, the Natural Resources Defense Council 
submitted a petition for reconsideration of the December 2008 final 
rule as provided for in CAA 307(d)(7)(B).\1\
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    \1\ John Walke, NRDC, EPA-HQ-OAR-2004-0014-0060.
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    On April 24, 2009, we responded to the February 17, 2009 petition 
by letter indicating that we were convening a reconsideration 
proceeding for the inclusion of fugitive emissions challenged in the 
petition and granting a 3-month administrative stay of the rule 
contained in the federal PSD program at 40 CFR parts 51 and 52. The 
letter also indicated that we would publish a notice of proposed 
rulemaking ``in the near future'' to address the specific issues for 
which we are granting reconsideration.\2\
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    \2\ Lisa Jackson, U.S. EPA, EPA-HQ-OAR-2004-0014-0062.
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    The administrative stay of the Fugitive Emissions Rule became 
effective on September 30, 2009. See 74 FR 50115, FR Doc. E9-23503. As 
noted above, our authority under section 307(d)(7)(B) to stay a rule or 
portion thereof solely under the Administrator's discretion is limited 
to 3 months. An interim final determination was made to provide an 
additional stay for 3 months. This additional stay became effective on 
December 31, 2009. See 74 FR 65692.

B. Final Rule

    In this final rule we are staying the Fugitive Emissions Rule for 
18 months. As described above, the same provisions were 
administratively stayed for 3 months; however, that stay ended on 
December 30, 2009. To avoid a gap between the end of the stay and the 
proposed additional stay, an interim final determination was made to 
provide an additional stay for 3 months, ending on March 31, 2010. We 
believe the 18 month additional stay is needed and will provide 
adequate time for EPA to propose, take comment on, and issue a final 
action on issues that are associated with the inclusion of fugitive 
emissions. Therefore, we are issuing this stay of the final Fugitive 
Emissions Rule in the federal PSD program at 40 CFR 51

[[Page 16014]]

and 52 for 18 months, until October 3, 2011.

C. Comments and Responses

    When we proposed this stay on February 11, 2010, we did not take 
comment on any substantive issues concerning the inclusion of fugitive 
emissions in the NSR program as stated in the Fugitive Emissions Rule. 
Comments sought were to be limited to the issue of whether to establish 
this additional stay and how long this stay would be. [75 FR 6823 at 
6825].
    We received three comments on the proposal for this additional stay 
of the Fugitive Emissions Rule. The first commenter supported the 
additional stay for ``18 months, 24 months, or however long it takes 
for the current administration to reverse the rule and return to EPA's 
longstanding, lawful, and more protective approach.''
    One industry coalition commenter opposed the additional 18 month 
stay to ``take substantive action and facilitate resolution of this 
significant permit applicability issue.'' Further, the commenter 
suggested that any delay ``makes compliance with already complex PSD 
and NSR rules just that more difficult.'' No additional detail is 
provided regarding the difficulties with compliance for these rules. We 
agree with the industry coalition commenter that EPA should take 
substantive action to facilitate resolution of this applicability 
issue. However, we believe that 18 months is necessary to allow EPA 
sufficient time to propose, take public comment on, and issue a final 
action concerning the inclusion of fugitive emissions in the federal 
PSD program. The commenter does not provide further details to 
demonstrate how this stay negatively impacts compliance. In our view, 
it is imperative the Fugitive Emissions Rule continue to be stayed 
while we undergo the reconsideration process to reduce confusion. If it 
is effective during this process and the Rule is ultimately changed, it 
would only further complicate compliance with PSD and NSR rules, an 
issue of concern for the commenter.
    The final commenter did not comment specifically on the proposed 
additional stay, but instead stated that ``further reconsideration is 
unnecessary.'' We believe this comment addresses the underlying 
substance of the Fugitive Emissions rule, which is beyond the scope of 
this action.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This action only issues a stay of 
the Fugitive Emissions Rule for 18 months.
    However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulations 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 No. 1230.21]. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule 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 rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any new requirements on small entities. We have 
determined that small businesses will not incur any adverse impacts 
because EPA is taking this action to propose an additional stay to the 
regulations at 40 CFR parts 51 and 52 concerning the inclusion of 
fugitive emissions. No costs are associated with this amendment.

D. Unfunded Mandates Reform Act

    This action does not contain a federal mandate under the provisions 
of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538 for state, local, and tribal governments, in the 
aggregate, or the private sector in any one year. This action only 
proposes to put in place an additional stay of the regulations at 40 
CFR parts 51 and 52 concerning the inclusion of fugitive emissions. 
Thus, this rule is not subject to the requirements of sections 202 or 
205 of the Unfunded Mandates Reform Act (UMRA).
    This final rule is also not subject to the requirements of section 
203 of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This final rule 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 EO 13132. This action only stays the regulations at 40 
CFR parts 51 and 52 concerning the inclusion of fugitive emissions.

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

    This action does not have tribal implications, as specified in EO 
13175 (65 FR 67249, November 9, 2000). This action will not impose any 
new obligations or enforceable duties on tribal governments. Thus, EO 
13175 does not apply to this action.

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

    EPA interprets EO 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 EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because this proposal only proposes to put in place an additional 
stay of the regulations at 40 CFR parts 51 and 52 concerning the 
inclusion of fugitive emissions.

[[Page 16015]]

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

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

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 (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This final rulemaking does not involve technical standards. 
Therefore, EPA is not using any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority and/or low income populations. This rule stays the 
regulations at 40 CFR parts 51 and 52 concerning the inclusion of 
fugitive emissions.

K. Determination Under Section 307(d)

    Pursuant to sections 307(d)(1)(J) and 307(d)(1)(V) of the CAA, the 
Administrator determines that this action is subject to the provisions 
of section 307(d). Section 307(d)(1)(V) provides that the provisions of 
section 307(d) apply to ``such other actions as the Administrator may 
determine.''

L. The 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 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. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective April 1, 2010.

M. Basis for Making This Rule Effective on the Date of Publication

    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b), generally provides that rules may not take effect earlier than 
30 days after they are published in the Federal Register. However, 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 the date of 
publication. APA section 553(d)(3) 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. A gap between the current stay that ends on March 31, 
2010 and the effective date of this stay could result in administrative 
and regulatory confusion if the stayed provisions came back into 
effect, only to be stayed again a short time later. In order to avoid 
this potential gap, this rule is effective upon publication.

IV. Statutory Authority

    The statutory authority for this action is provided by section 
301(a) of the CAA as amended (42 U.S.C. 7601(a)). 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

    Administrative practices and procedures, Air pollution control, 
Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Transportation, Volatile 
organic compounds.

40 CFR Part 52

    Administrative practices and procedures, Air pollution control, 
Carbon monoxide, Fugitive emissions, Incorporation by reference, 
Intergovernmental relation, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Transportation, Volatile organic compounds.

    Dated: March 24, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons discussed in the preamble, the EPA amends 40 CFR parts 
51 and 52 as follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401- 7671q.


Sec.  51.165  [Amended]

    2. Effective April 1, 2010, 40 CFR 51.165(a)(1)(v)(G), 
(a)(1)(vi)(C)(3), (a)(1)(ix), (a)(1)(xxviii)(B)(2), 
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), 
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii), 
(a)(6)(iv), and (f)(4)(i)(D) are stayed until October 3, 2011.
    3. Effective April 1, 2010 through October 3, 2011, amend 40 CFR 
51.165 to add paragraph (a)(4) to read as follows:


Sec.  51.165  Permit requirements.

    (a) * * *
    (4) Each plan may provide that the provisions of this paragraph do 
not apply to a source or modification that would be a major stationary 
source or major modification only if fugitive emission to the extent 
quantifiable are considered in calculating the potential to emit of the 
stationary source or modification and the source does not belong to any 
of the following categories:
    (i) Coal cleaning plants (with thermal dryers);
    (ii) Kraft pulp mills;
    (iii) Portland cement plants;

[[Page 16016]]

    (iv) Primary zinc smelters;
    (v) Iron and steel mills;
    (vi) Primary aluminum ore reduction plants;
    (vii) Primary copper smelters;
    (viii) Municipal incinerators capable of charging more than 250 
tons of refuse per day;
    (ix) Hydrofluoric, sulfuric, or citric acid plants;
    (x) Petroleum refineries;
    (xi) Lime plants;
    (xii) Phosphate rock processing plants;
    (xiii) Coke oven batteries;
    (xiv) Sulfur recovery plants;
    (xv) Carbon black plants (furnace process);
    (xvi) Primary lead smelters;
    (xvii) Fuel conversion plants;
    (xviii) Sintering plants;
    (xix) Secondary metal production plants;
    (xx) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol by 
natural fermentation included in NAICS codes 325193 or 312140;
    (xxi) Fossil-fuel boilers (or combination thereof) totaling more 
than 250 million British thermal units per hour heat input;
    (xxii) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (xxiii) Taconite ore processing plants;
    (xxiv) Glass fiber processing plants;
    (xxv) Charcoal production plants;
    (xxvi) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (xxvii) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
* * * * *


Sec.  51.166  [Amended]

0
4. Effective April 1, 2010, 40 CFR 51.166(a)(7)(iv)(b), (b)(2)(v), 
(b)(3)(iii)(c), (b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b), 
(b)(40)(ii)(d), (b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), 
(b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and (w)(4)(i)(d) are stayed 
until March 31, 2010.

0
5. Effective April 1, 2010 through October 3, 2011, amend 40 CFR 51.166 
to add paragraph (i)(l)(ii) to read as follows:


Sec.  51.166  Prevention of significant deterioration of air quality.

* * * * *
    (i) * * *
    (1) * * *
    (ii) The source or modification would be a major stationary source 
or major modification only if fugitive emissions, to the extent 
quantifiable, are considered in calculating the potential to emit of 
the stationary source or modification and such source does not belong 
to any following categories:
    (a) Coal cleaning plants (with thermal dryers);
    (b) Kraft pulp mills;
    (c) Portland cement plants;
    (d) Primary zinc smelters;
    (e) Iron and steel mills;
    (f) Primary aluminum ore reduction plants;
    (g) Primary copper smelters;
    (h) Municipal incinerators capable of charging more than 250 tons 
of refuse per day;
    (i) Hydrofluoric, sulfuric, or nitric acid plants;
    (j) Petroleum refineries;
    (k) Lime plants;
    (l) Phosphate rock processing plants;
    (m) Coke oven batteries;
    (n) Sulfur recovery plants;
    (o) Carbon black plants (furnace process);
    (p) Primary lead smelters;
    (q) Fuel conversion plants;
    (r) Sintering plants;
    (s) Secondary metal production plants;
    (t) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol by 
natural fermentation included in NAICS codes 325193 or 312140;
    (u) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (v) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (w) Taconite ore processing plants;
    (x) Glass fiber processing plants;
    (y) Charcoal production plants;
    (z) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (aa) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act; or
* * * * *

Appendix S to 40 CFR part 51 [Amended]

0
6. Effective April 1, 2010, 40 CFR part 51, Appendix S, paragraphs 
II.A.5(vii), II.A.6(iii), II.A.9, II.A.24(ii)(b), II.A.24(ii)(d), 
II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii), II.A.30(iv), IV.I.1(ii), 
IV.J.3, IV.J.4, and IV.K.4(i)(d) are stayed until October 3, 2011.

0
7. Effective April 1, 2010 through October 3, 2011, amend Appendix S to 
part 51 to add II.F to read as follows:

Appendix S to Part 51--Emission Offset Interpretative Ruling

* * * * *

II. * * *

    F. Fugitive emission sources. Section IV.A. of this Ruling shall 
not apply to a source or modification that would be a major 
stationary source or major modification only if fugitive emissions, 
to the extent quantifiable, are considered in calculating the 
potential to emit of the stationary source or modification and such 
source does not belong to any following categories:
    (1) Coal cleaning plants (with thermal dryers);
    (2) Kraft pulp mills;
    (3) Portland cement plants;
    (4) Primary zinc smelters;
    (5) Iron and steel mills;
    (6) Primary aluminum ore reduction plants;
    (7) Primary copper smelters;
    (8) Municipal incinerators capable of charging more than 250 
tons of refuse per day;
    (9) Hydrofluoric, sulfuric, or nitric acid plants;
    (10) Petroleum refineries;
    (11) Lime plants;
    (12) Phosphate rock processing plants;
    (13) Coke oven batteries;
    (14) Sulfur recovery plants;
    (15) Carbon black plants (furnace process);
    (16) Primary lead smelters;
    (17) Fuel conversion plants;
    (18) Sintering plants;
    (19) Secondary metal production plants;
    (20) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol 
by natural fermentation included in NAICS codes 325193 or 312140;
    (21) Fossil-fuel boilers (or combination thereof) totaling more 
than 250 million British thermal units per hour heat input;
    (22) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (23) Taconite ore processing plants;
    (24) Glass fiber processing plants;
    (25) Charcoal production plants;
    (26) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (27) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
* * * * *

PART 52--[AMENDED]

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

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


Sec.  52.21  [Amended]

0
9. Effective April 1, 2010, 40 CFR 52.21, (a)(2)(iv)(b), (b)(2)(v), 
(b)(3)(iii)(b), (b)(3)(iii)(c), (b)(20),(b)(41)(ii)(b), (b)(41)(ii)(d), 
(b)(48)(i)(a),(b)(48)(ii)(a), (b)(48)(iii), (b)(48)(iv), (r)(6)(iii), 
(r)(6)(iv), and (aa)(4)(i)(d) are stayed until October 3, 2011.

[[Page 16017]]


0
10. Effective April 1, 2010 through October 3, 2011, amend 40 CFR 52.21 
to add (i)(l)(vii) to read as follows:


Sec.  52.21  Prevention of significant deterioration of air quality.

* * * * *
    (i) * * *
    (1) * * *
    (vii) The source or modification would be a major stationary source 
or major modification only if fugitive emissions, to the extent 
quantifiable, are considered in calculating the potential to emit of 
the stationary source or modification and the source does not belong to 
any of the following categories:
    (a) Coal cleaning plants (with thermal dryers);
    (b) Kraft pulp mills;
    (c) Portland cement plants;
    (d) Primary zinc smelters;
    (e) Iron and steel mills;
    (f) Primary aluminum ore reduction plants;
    (g) Primary copper smelters;
    (h) Municipal incinerators capable of charging more than 250 tons 
of refuse per day;
    (i) Hydrofluoric, sulfuric, or nitric acid plants;
    (j) Petroleum refineries;
    (k) Lime plants;
    (l) Phosphate rock processing plants;
    (m) Coke oven batteries;
    (n) Sulfur recovery plants;
    (o) Carbon black plants (furnace process);
    (p) Primary lead smelters;
    (q) Fuel conversion plants;
    (r) Sintering plants;
    (s) Secondary metal production plants;
    (t) Chemical process plants--The term chemical processing plant 
shall not include ethanol production facilities that produce ethanol by 
natural fermentation included in NAICS codes 325193 or 312140;
    (u) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (v) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (w) Taconite ore processing plants;
    (x) Glass fiber processing plants;
    (y) Charcoal production plants;
    (z) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (aa) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act; or
* * * * *
[FR Doc. 2010-7036 Filed 3-30-10; 8:45 am]
BILLING CODE 6560-50-P

