[Federal Register: November 7, 2003 (Volume 68, Number 216)]
[Rules and Regulations]
[Page 63021-63029]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07no03-7]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[FRL-7583-7, E-Docket ID No. A-2001-0004 (Legacy Docket ID No. A-90-
37)]
Prevention of Significant Deterioration (PSD) and Non-Attainment
New Source Review (NSR): Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final action on reconsideration; amendment to final
rules.
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SUMMARY: On December 31, 2002 and March 10, 2003, 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 actions, the Administrator received a number of
petitions for reconsideration. On July 30, 2003, EPA announced its
reconsideration of certain issues arising from the final rules of
December 31, 2002. We (the EPA) requested public comment on six issues
for which we granted reconsideration. As a result of this
reconsideration process, we have concluded that two clarifications to
the underlying rules are warranted, which are: To include a definition
of ``replacement unit'' and to clarify that the plantwide applicability
limitation (PAL) baseline calculation procedures for newly constructed
units do not apply to modified units. With respect to all other issues
raised by the petitioners, we deny the requests for reconsideration.
EFFECTIVE DATE: This final action is effective on January 6, 2004.
ADDRESSES: Docket. Docket No. A-90-37 (E-Docket ID No. OAR-2001-0004),
containing supporting information used to develop the proposed rule and
the final rule, is available for public inspection and copying between
8 a.m. and 4:30 p.m., Monday through Friday (except government
holidays) at the Air and Radiation Docket and Information Center
(6102T), Room B108, EPA West Building, 1301 Constitution Avenue, NW.,
Washington, DC 20460; telephone (202) 566-1742, fax (202) 566-1741. A
reasonable fee may be charged for copying docket materials.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of this final action will also be available on the
http://WWW. Following signature, a copy of the notice will be posted on the
EPA's NSR page: http://www.epa.gov/nsr.
FOR FURTHER INFORMATION CONTACT: Ms. Lynn Hutchinson, Information
Transfer and Program Integration Division (C339-03), U.S. Environmental
Protection Agency, Research Triangle Park, NC 27711, telephone (919) 541-5795, or electronic mail at hutchinson.lynn@epa.gov, or Ms. Janet
McDonald, at the same street address, telephone (919) 541-1450, or electronic mail at mcdonald.janet@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. What Are the Regulated Entities?
Entities potentially affected by the subject rule for today's
action include sources in all industry groups. The majority of sources
potentially affected are expected to be in the following groups.
------------------------------------------------------------------------
SIC
Industry Group \a\ NAICS \b\
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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
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\a\ Standard Industrial Classification
\b\ North American Industry Classification System. Entities potentially
affected by the subject rule for today's action also include State,
local, and tribal governments.
[[Page 63022]]
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-2001-0004 (Legacy Docket ID No. A-90-
37). 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, EPA West Building, 1301
Constitution Avenue, 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.
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 additional information about EPA's electronic public docket
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
C. Where Can I Obtain Additional Information?
In addition to being available in the docket, an electronic copy of
this final action will also be available on the http://WWW. Following
signature, a copy of the notice will be posted on the EPA's NSR page:
http://www.epa.gov/nsr.
D. 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?
C. Where can I obtain additional information?
D. How is this preamble organized?
II. Background
III. Today's Action
A. Six Issues for which Reconsideration Was Granted
B. Remaining Issues in Petitions for Reconsideration
IV. 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 Risks and Safety Risks
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
V. Statutory Authority
VI. Judicial Review
II. Background
For a brief history of the NSR rulemaking process that preceded
today's final action, see our discussion at 68 FR 44623 (July 30,
2003). On December 31, 2002, we issued a final rule (67 FR 80186) that
revised regulations governing the major NSR programs (final rules).\1\
The revisions included five major changes to the major NSR program that
will reduce burden, maximize operating flexibility, improve
environmental quality, provide additional certainty, and promote
administrative efficiency. These elements include baseline actual
emissions, actual-to-projected-actual emissions methodology, plantwide
applicability limitations (PALs), Clean Units, and pollution control
projects (PCPs). The final rules also codified our longstanding policy
regarding the calculation of baseline emissions for electric utility
steam generating units (EUSGUs). In addition, the final action: (1)
Responded to comments we received on a proposal to adopt a methodology,
developed by the American Chemistry Council (formerly known as the
Chemical Manufacturers Association (CMA)) and other industry
petitioners, to determine whether a major stationary source has
undertaken a major modification based on its potential emissions; and
(2) included a new section that spells out in one place how a major
modification is determined under the various major NSR applicability
options. This topic had previously been addressed primarily in the
definition section of the major NSR regulations. We also clarified
where to find the provisions in the revised rules and codified a
definition of ``regulated NSR pollutant'' that clarifies which
pollutants are regulated under the Act for purposes of major NSR.
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\1\ The December 31, 2002 final rules did not act on several
issues proposed in 1996. We intend to act on some or all issues from
the 1996 proposal in subsequent Federal Register notices.
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On February 28, 2003, we sent notice to affected States that,
consistent with our proposal in 1996, we were revising the references
to 40 CFR 52.21 in delegated States' plans to reflect the December 31,
2002 changes in the Prevention of Significant Deterioration (PSD)
Federal Implementation Plan (FIP) (40 CFR 52.21(a)(2) and (b) through
(bb)). This FIP applies in any area that does not have an approved PSD
program in the State Implementation Plan (SIP), and in all Indian
country. The notice was subsequently published in the Federal Register
on March 10, 2003 (68 FR 11316).
Following publication of the December 31, 2002 and March 10, 2003
Federal Register notices, and prior to July 2003, the Administrator
received numerous petitions, filed pursuant to section 307(d)(7)(B) of
the CAA,
[[Page 63023]]
requesting reconsideration of many aspects of the final rules.\2\
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\2\ Petitions for reconsideration of the December 31, 2002 final
rule that EPA received before July 2003 were filed by: Northeastern
States (CT, ME, MD, MA, NH, NJ, NY, PA, RI, VT); South Coast Air
Quality Management District (CA); and Environmental Groups (led by
NRDC, Earthjustice, Clean Air Task Force, and Environmental
Defense). Additional petitioners joined existing petitions: The
People of California and California Air Resources Board (joined
South Coast and Northeastern States petitions); Yolo-Solano Air
Quality Management District (CA) (joined South Coast petition);
Santa Barbara, Ventura, and Monterey Air Pollution Control Districts
(CA); and Sacramento Air Quality Management District (CA) (joined
South Coast petition). Petitions for reconsideration of the FIP rule
were filed by: Delegated States (CA, CT, IL, MA, NJ, NY, DC, South
Coast Air Quality Management District (CA), and Santa Barbara Air
Pollution Control District (CA)); and Environmental Groups
(essentially the same groups that filed petitions to reconsider the
December 31, 2002 rule).
On July 11, 2003, we received another petition for
reconsideration filed by Newmont USA Limited, dba Newmont Mining
Corporation. This petition was subsequently joined by the National
Cattlemen's Beef Association and the National Mining Association. We
are not responding to that petition at this time, but will do so in
the near future.
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On July 30, 2003 (68 FR 44624), we granted reconsideration on six
issues raised by petitioners who had filed petitions prior to July
2003.\3\ At that time, we did not act on any of the remaining issues in
those petitions. Instead, we indicated that we planned to announce our
final decision on whether to reconsider the remaining petition issues
no later than 90 days after the publication of the Federal Register
notice.
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\3\ In this notice, the term ``petitioner'' refers only to those
entities that filed petitions for reconsideration with EPA prior to
July 2003.
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The first of the six issues on which we granted reconsideration
involves a document we released in November 2002, entitled
``Supplemental Analysis of the Environmental Impact of the 2002 Final
NSR Improvement Rules.''\4\ Our purpose in granting reconsideration on
this issue was to provide the public an opportunity to comment on our
analysis and to submit any additional information that they believe to
be relevant to the inquiry. The remaining issues for which we granted
reconsideration involved five narrow aspects of the final rule as
follows:
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\4\ Available through our NSR Web site at http://www.epa.gov/nsr
and in Docket ID No. A-90-37, Document IV-A-7.
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[sbull] Using potential-to-emit (PTE) to determine baseline actual
emissions for an emissions unit on which actual construction began
after the 24-month PAL baseline period when establishing a PAL;
[sbull] Eliminating synthetic minor limits [(r)(4) limits] under
the PAL;
[sbull] Including a ``reasonable possibility'' requirement for
triggering recordkeeping and reporting provisions;
[sbull] Using the actual-to-projected-actual test for replacement
units; and,
[sbull] Effect of redesignation of an area from attainment to
nonattainment on Clean Unit status.
We describe these issues at 68 FR 44624. For the reasons indicated
at 68 FR 44624, we did not grant a stay of the final rules pending our
reconsideration of these issues.
On August 14, 2003, we held a public hearing on the issues for
which we granted reconsideration. Twenty-two individuals gave oral
presentations at the hearing. The transcript of their comments is
located in Docket OAR-2001-0004 (Legacy Number A-90-37), which can be
accessed on the internet at http://www.epa.gov/edocket.
We provided a public comment period on the reconsideration issues
that ended on August 29, 2003. For issues arising out of the August
14th public hearing, the comment period was extended until September
15, 2003. More than 400 written public comments on the reconsideration
issues were received. The individual comment letters can be found in
Docket OAR-2001-0004 (Legacy Number A-90-37).
III. Today's Action
At this time, we are announcing our final action after
reconsideration of these six issues. We are also announcing our final
decision on reconsideration of the remaining issues that were raised by
the petitioners. Today, we are making available a document entitled,
``Technical Support Document for Prevention of Significant
Deterioration (PSD) and Non-attainment New Source Review (NSR):
Reconsideration,'' EPA 456/R-03-005 (Technical Support Document). This
document contains (1) a summary of comments received on the issues for
which we granted reconsideration and our responses to these comments,
and (2) a summary of petition issues for which we are not granting
reconsideration, and our rationale for denying reconsideration. This
document is available on our Web site at http://www.epa.gov/nsr/; and,
through the National Technical Information Services, 5285 Port Royal
Road, Springfield, VA 22161; telephone (800) 553-6846, e-mail http://www.ntis.gov
; and, from the US EPA, Library Services, MD C267-01,
Research Triangle Park, NC 27711, telephone (919) 541-2777, e-mail library.rtp@epa.gov.
A. Six Issues for Which Reconsideration Was Granted
We received numerous responses to our request for comment on the
``Supplemental Analysis of the Environmental Impact of the 2002 Final
NSR Improvement Rule.'' After carefully considering the information
that was submitted, we have determined that none of the new information
presented leads us to conclude that the analysis was incorrect or
substantially flawed. Therefore, we are re-affirming the validity of
the original conclusions. A summary of the comments received and our
responses to these comments can be found in our Technical Support
Document.
With respect to the five remaining issues on which we granted
reconsideration, we have concluded that two clarifications to the
underlying rules are warranted. These changes relate to issues raised
as a result of our request for comment on: (1) Whether replacement
units should be allowed to use the actual-to-projected-actual
applicability test to determine whether installing a replacement unit
results in a significant emissions increase; and, (2) using potential-
to-emit (PTE) to determine the baseline actual emissions for an
emissions unit on which construction began after the 24-month baseline
period when establishing a PAL. As explained below, while we are not
making any changes to the general approach in the final rules with
respect to these issues, we are making two clarifying changes to the
regulations. First, we are adding a definition of replacement unit to
the final rules. Second, we are clarifying that the potential-to-emit
approach for determining baseline actual emissions when establishing a
PAL is only available to emissions units that are added to the major
stationary source after the 24-month baseline period, and is not
available to emissions units that existed during the baseline period
whether or not they have been modified since that time.
We are not making any changes to the final rules with respect to
eliminating synthetic minor limits [(r)(4) limits] under the PAL, the
``reasonable possibility'' requirement for triggering recordkeeping and
reporting provisions, or the effect of redesignation of an area from
attainment to nonattainment on Clean Unit status. Our reasons for this
conclusion, and our response to significant comments received, are
summarized in our Technical Support Document.
1. Replacement Units
[[Page 63024]]
We have decided to continue to allow the owner or operator of a
major stationary source (you) to use the actual-to-projected-actual
applicability test to determine whether installing a replacement unit
results in a significant emissions increase. However, as we
reconsidered this issue and reviewed comments, we found one commenter
that recommended that EPA include a definition of ``replacement unit''
in the regulations. The commenter asked that this definition describe
how the replacement unit may differ from the replaced unit. The
commenter also recommended that we indicate that the replaced unit must
be removed from the site or rendered permanently inoperable.
We believe that the current rules, as supplemented by the
discussion in the December 2002 preamble, are self-implementing for
replacement units. Nevertheless, we agree with the commenter that a
definition of ``replacement unit'' would render implementation easier.
Thus, today we are adding regulatory language to further clarify our
intentions regarding replacement units. Today's action revises the
definition of ``emissions unit'' to clarify that a replacement unit is
considered an existing emissions unit (e.g., Sec. 51.166(b)(7)(ii))
and therefore is eligible for the actual-to-projected-actual test for
major NSR applicability determinations.
In addition, today's rule revisions add a definition of
``replacement unit'' that codifies longstanding policy and practice. In
the preamble to the 1992 WEPCO rule, we first stated that we would
``consider a unit to be replaced if it would constitute a reconstructed
unit within the meaning of 40 CFR 60.15,'' which is the section of the
New Source Performance Standards (NSPS) General Provisions that governs
reconstruction. See 57 FR 32323, column 1. We have adopted this
threshold in today's rule, by defining ``replacement unit'' to include
reconstructed units, as well as emissions units that completely take
the place of an existing emissions unit. See, e.g., Sec.
51.166(b)(32)(i).
We note that we have never considered ``replacement units'' to
include replacements that significantly change the nature of the
replaced unit; it is this inherent limitation that makes the
application of the actual-to-projected-actual applicability test
appropriate. It is reasonable to compare the baseline actual emissions
from the replaced unit to the projected actual emissions of the
replacement unit because the units are effectively the same existing
emissions unit. Thus, consistent with the recently finalized equipment
replacement exclusion provisions, the limiting principle here is that
the replacement unit must be identical or functionally equivalent and
must not change the basic design parameters of the affected process
unit (e.g., for EUSGUs this might mean heat input and fuel consumption
specifications). See, e.g., Sec. Sec. 51.166(b)(32)(ii) and (iii). We
also believe, however, that we need not and should not treat efficiency
as a basic design parameter, as we do not believe major NSR was
intended to impede industry in making energy and process efficiency
improvements. We believe such improvements, on balance, will be
beneficial both economically and environmentally.
We also believe that it has always been implicit in the concept of
a replacement unit that the replaced unit must cease operation. Today's
rule makes this principle explicit by requiring you to remove or
permanently disable the replaced unit, or take a permit condition to
permanently prohibit its operation. In general, if you bring the
replaced unit back into operation, it must be treated as a new
emissions unit, to which the actual-to-potential emissions test
applies. See, e.g., Sec. 51.166(b)(32)(iv).
Finally, today's rule spells out that you cannot generate an
emissions reduction credit from emissions reductions that are
attributable to the shutdown of the replaced emissions unit. See, e.g.,
Sec. 51.166(b)(32). This provision addresses concerns about the
possible double-counting of emissions reductions that could otherwise
occur. Thus, if you use the baseline actual emissions of the replaced
unit when applying the actual-to-projected-actual emissions test to
measure the emissions increase resulting from the replacement unit, you
cannot subsequently take credit for the emissions reductions that occur
when you shut down the replaced unit. However, this provision is not
intended to prevent you from generating creditable emissions reductions
through other activities at the replacement unit. For example, you may
be able to generate an emissions reduction credit if you reduce
emissions by installing an inherently less-polluting replacement unit
and accept an enforceable emission limitation that is lower than the
baseline actual emissions of the replaced unit. Such an emissions
reduction would be creditable if all other criteria for generating such
credit are met.
2. Emission Units for Which You Began Actual Construction After the PAL
Baseline Period
We have decided to retain the calculation method that uses
potential-to-emit (PTE) to determine the baseline actual emissions for
an emissions unit for which you began actual construction after the 24-
month PAL baseline period when establishing a PAL. As we reconsidered
this issue and reviewed comments, however, we decided it was
appropriate to clarify that this method of calculation applies only to
emissions units initially constructed after the PAL baseline period.
As reflected in the July 30, 2003 Federal Register notice, our
intent was to limit the use of PTE to emissions units that were not in
existence during the baseline period. We explained in the July notice
that we included this provision, and the provision requiring the
emissions of shut down units to be subtracted from the PAL level, ``in
recognition that the set of emissions units at your source at the time
of PAL permit issuance may be different from the set of emissions units
that existed during the baseline period. You may have constructed
additional emissions units, permanently shut down previously existing
emissions units, or both.'' See 68 FR 44625, column 3.
However, in providing for the inclusion of PTE for some units, the
language of the rule referred only to ``units on which actual
construction began'' after the PAL baseline period. See, e.g., 40 CFR
52.21(aa)(6). ``Construction'' is defined as ``any physical change or
change in the method of operation (including fabrication, erection,
installation, demolition, or modification of an emissions unit) which
would result in a change in actual emissions.'' See, e.g., 40 CFR
52.21(b)(8). Because the definition of ``construction'' encompasses
modifications, we are concerned that, in the future, there might be
confusion regarding the intended scope of this provision. It was not
our intention to extend this provision to units that merely undergo a
modification following the baseline period. Therefore, we are changing
the rule language to explicitly exclude such units.
B. Remaining Issues in Petitions for Reconsideration
We deny the petitioners' requests for reconsideration on the
remaining issues raised in the petitions, because they have failed to
meet the standard for reconsideration under section 307(d)(7)(B) of the
CAA. Specifically,
[[Page 63025]]
the petitioners have failed to show: That it was impracticable to raise
their objections during the comment period, or that the grounds for
their objections arose after the close of the comment period; and/or
that their concern is of central relevance to the outcome of the rule.
We discuss our reasons for denying reconsideration in the Technical
Support Document, which is available on our Web site at http://www.epa.gov/nsr
.
IV. Statutory and Executive Order Reviews
On December 31, 2002, 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 promulgating two minor clarifications
to the final rules. 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 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The 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
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order. EPA has submitted this action to
OMB for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
We are not promulgating any new paperwork (e.g., monitoring, reporting,
recordkeeping) as part of today's final action. The OMB has previously
approved the information collection requirements contained in the
existing 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, EPA ICR number 1230.11. A copy of the OMB
approved Information Collection Request (ICR) may be obtained from
Susan Auby, Collection Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Avenue, NW., Washington,
DC 20460 or by calling (202) 566-1672.
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 purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search 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 in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Analysis
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with this final rule.
For purposes of assessing the impacts of today's action on small
entities, a small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (see 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; or (3) a small organization that is any not-for-profit
enterprise that is independently owned and operated and is not dominant
in its field.
After considering the economic impacts of today's action on small
entities, EPA has concluded 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 the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 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. A
Regulatory Flexibility Act Screening Analysis (RFASA), developed as
part of a 1994 draft Regulatory Impact Analysis (RIA) and incorporated
into the September 1995 ICR renewal analysis, showed that the changes
to the NSR program due to the 1990 Clean Air Act amendments would not
have an adverse impact on small entities. This analysis encompassed the
entire universe of applicable major sources that were likely to also be
small businesses (approximately 50 ``small business'' major sources).
Because the administrative burden of the NSR program is the primary
source of the NSR program's regulatory costs, the analysis estimated a
negligible ``cost to sales'' (regulatory cost divided by the business
category mean revenue) ratio for this source group. Currently, and as
reported in the current ICR, there is no economic basis for a different
conclusion.
We believe the rule changes in the December 31, 2002 final rule
will reduce the regulatory burden associated with the major NSR program
for all sources, including all small businesses, by improving the
operational flexibility of owners and operators, improving the clarity
of requirements, and providing alternatives that sources may take
advantage of to further improve their operational flexibility. Today's
action consists of two minor clarifications to the December 31, 2002
final rule and does not change our overall assessment of regulatory
burden. We have therefore concluded that the rule changes in December
31, 2002 final rule, as clarified by today's action, will relieve
regulatory burden for all small entities.
[[Page 63026]]
D. Unfunded Mandates Reform Act
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 the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and 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
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA 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 EPA 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 as to why
that alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it 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 EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
We have determined that today's action does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any 1 year. Although initially the changes in the December
31, 2002 final rule are expected to result in a small increase in the
burden imposed upon reviewing authorities in order for them to be
included in the State's SIP, as well as other small increases in burden
discussed under ``Paperwork Reduction Act'' in the preamble to the
December 31, 2002 final rule, those revisions will ultimately provide
greater operational flexibility to sources permitted by the States,
which will in turn reduce the overall burden of the program on State
and local authorities by reducing the number of required permit
modifications. In addition, we believe the 2002 rule changes will
actually reduce the regulatory burden associated with the major NSR
program by improving the operational flexibility of owners and
operators, improving the clarity of requirements, and providing
alternatives that sources may take advantage of to further improve
their operational flexibility. Today's action does not increase
regulatory burden but merely clarifies two aspects of the 2002 rule
changes. Thus, today's action is not subject to the requirements of
sections 202 and 205 of the UMRA. For the same reasons stated above, we
have determined that today's action contains no regulatory requirements
that might significantly or uniquely affect small governments. Thus,
today's action is not subject to the requirements of section 203 of the
UMRA.
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.''
Today's 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. While the final rule published
on December 31, 2002 will result in some expenditures by the States, we
expect those expenditures to be limited to $331,250 per year. This
figure includes the small increase in the burden imposed upon reviewing
authorities in order for them to revise the State's SIP. However, the
revisions contained in the December 31, 2002 final rule provide greater
operational flexibility to sources permitted by the States, which will
in turn reduce the overall burden of the program on State and local
authorities by reducing the number of required permit modifications.
Today's action does not increase regulatory burden but merely clarifies
two aspects of the December 31, 2002 final rule. Thus, Executive Order
13132 does not apply to today's action.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' Today's action does not have
tribal implications as specified in Executive Order 13175. Thus,
Executive Order 13175 does not apply to this action.
The purpose of the December 31, 2002 final rule is to add greater
flexibility to the existing major NSR regulations. Those changes will
benefit permitting 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 NSR program apply. Taken as a whole, the December
31, 2002 final rule should result in no added burden or compliance
costs and should not substantially change the level of environmental
performance achieved under the previous rules.
EPA anticipates that initially the changes in the December 31, 2002
final rule 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, those revisions will ultimately provide greater
operational flexibility to sources permitted by the States, which will
in turn reduce the overall burden of 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 Clean Air Act to implement the NSR
program. The Federal government is currently the NSR permitting
authority in Indian country. Thus, tribal governments should not
experience added burden from the December 31, 2002 final rule, nor
should their laws be affected with respect to implementation of that
rule. Additionally, although major stationary sources affected by the
December 31, 2002 final rule could be located in or near Indian country
and/or be owned or operated by tribal governments, such sources would
not incur additional costs or compliance burdens as a result of that
rule. Instead, the only effect on such sources should
[[Page 63027]]
be the benefit of the added certainty and flexibility provided by that
rule. For the reasons stated above, we do not believe that today's
action, which clarifies two aspects of the December 31, 2002 final
rule, would increase burden for tribal governments. In addition, we do
not anticipate that today's action would have substantial direct
effects on sources located in or near Indian country or sources owned
or operated by tribal governments.
In our July 30, 2003 notice, EPA specifically solicited additional
comment on today's final action from tribal officials.
G. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, entitled ``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, the Agency 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 reasonably feasible alternatives considered by the Agency.
Today's action is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. We believe that the December 31,
2002 final rule as a whole will result in equal or better environmental
protection than provided by earlier regulations, and do so in a more
streamlined and effective manner. Similarly, today's action merely
clarifies two aspects of the December 31, 2002 final rule and does not
change substantially the level of environmental protection provided by
that rule. As a result, today's action is not expected to present a
disproportionate environmental health or safety risk for children.
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Today's action 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
December 31, 2002 final rule improves the ability of sources to
undertake pollution prevention or energy efficiency projects, switch to
less polluting fuels or raw materials, maintain the reliability of
production facilities, and effectively utilize and improve existing
capacity. That rule also includes a number of provisions to streamline
administrative and permitting processes so that facilities can quickly
accommodate changes in supply and demand. It provides several
alternatives that are specifically designed to reduce administrative
burden for sources that use pollution prevention or energy efficient
projects. Today's action merely clarifies two aspects of the December
31, 2002 final rule and thus is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
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.
Today's action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, Sec. 5 U.S.C. 801, et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. The EPA will submit a report containing
the final rule and other required information to the United States
Senate, the United States House of Representatives, and the Comptroller
General of the United States prior to publication of the final 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. Sec. 804(2). The rule will be
effective November 7, 2003.
V. Statutory Authority
The statutory authority for this action is provided by sections
101, 111, 114, 116, 301, and 307 of the CAA as amended (42 U.S.C. 7401,
7407, 7411, 7414, 7416, and 7601).
VI. Judicial Review
Under section 307(b)(1) of the Act, judicial review of the December
31, 2002 final rule is available only by the filing of a petition for
review in the U.S. Court of Appeals for the District of Columbia
Circuit by March 3, 2003. Any such judicial review is limited to only
those objections that are raised with reasonable specificity in timely
comments. Under section 307(b)(2) of the Act, the requirements that are
the subject of the December 31, 2002 final rule may not be challenged
later in civil or criminal proceedings brought by us to enforce these
requirements.
List of Subjects in 40 CFR Parts 51 and 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Hydrocarbons, Intergovernmental
relations, Lead, Nitrogen oxides, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides.
Dated: October 30, 2003.
Marianne Horinko,
Acting Administrator.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended 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.
Subpart I--[Amended]
0
2. Section 51.165 is amended:
0
a. By revising paragraph (a)(1)(vii)(B).
0
b. By adding paragraph (a)(1)(xxi).
0
c. By revising paragraph (f)(6).
The revisions read as follows:
Sec. 51.165 Permit requirements.
(a) * * *
[[Page 63028]]
(1) * * *
(vii) * * *
(B) An existing emissions unit is any emissions unit that does not
meet the requirements in paragraph (a)(1)(vii)(A) of this section. A
replacement unit, as defined in paragraph (a)(1)(xxi) of this section,
is an existing emissions unit.
* * * * *
(xxi) Replacement unit means an emissions unit for which all the
criteria listed in paragraphs (a)(1)(xxi)(A) through (D) of this
section are met. No creditable emission reductions shall be generated
from shutting down the existing emissions unit that is replaced.
(A) The emissions unit is a reconstructed unit within the meaning
of Sec. 60.15(b)(1) of this chapter, or the emissions unit completely
takes the place of an existing emissions unit.
(B) The emissions unit is identical to or functionally equivalent
to the replaced emissions unit.
(C) The replacement does not alter the basic design parameters (as
discussed in paragraph (h)(2) of this section) of the process unit.
(D) The replaced emissions unit is permanently removed from the
major stationary source, otherwise permanently disabled, or permanently
barred from operation by a permit that is enforceable as a practical
matter. If the replaced emissions unit is brought back into operation,
it shall constitute a new emissions unit.
* * * * *
(f) * * *
(6) Setting the 10-year actuals PAL level. (i) Except as provided
in paragraph (f)(6)(ii) of this section, the plan shall provide that
the actuals PAL level for a major stationary source shall be
established as the sum of the baseline actual emissions (as defined in
paragraph (a)(1)(xxxv) of this section) of the PAL pollutant for each
emissions unit at the source; plus an amount equal to the applicable
significant level for the PAL pollutant under paragraph (a)(1)(x) of
this section or under the Act, whichever is lower. When establishing
the actuals PAL level, for a PAL pollutant, only one consecutive 24-
month period must be used to determine the baseline actual emissions
for all existing emissions units. However, a different consecutive 24-
month period may be used for each different PAL pollutant. Emissions
associated with units that were permanently shut down after this 24-
month period must be subtracted from the PAL level. The reviewing
authority shall specify a reduced PAL level(s) (in tons/yr) in the PAL
permit to become effective on the future compliance date(s) of any
applicable Federal or State regulatory requirement(s) that the
reviewing authority is aware of prior to issuance of the PAL permit.
For instance, if the source owner or operator will be required to
reduce emissions from industrial boilers in half from baseline
emissions of 60 ppm NOX to a new rule limit of 30 ppm, then
the permit shall contain a future effective PAL level that is equal to
the current PAL level reduced by half of the original baseline
emissions of such unit(s).
(ii) For newly constructed units (which do not include
modifications to existing units) on which actual construction began
after the 24-month period, in lieu of adding the baseline actual
emissions as specified in paragraph (f)(6)(i) of this section, the
emissions must be added to the PAL level in an amount equal to the
potential to emit of the units.
* * * * *
0
3. Section 51.166 is amended:
0
a. By revising paragraph (b)(7)(ii).
0
b. By adding paragraph (b)(32).
0
c. By revising paragraph (w)(6).
The revisions read as follows:
Sec. 51.166 Prevention of significant deterioration of air quality.
(b) * * *
(7) * * *
(ii) An existing emissions unit is any emissions unit that does not
meet the requirements in paragraph (b)(7)(i) of this section. A
replacement unit, as defined in paragraph (b)(32) of this section, is
an existing emissions unit.
* * * * *
(32) Replacement unit means an emissions unit for which all the
criteria listed in paragraphs (b)(32)(i) through (iv) of this section
are met. No creditable emission reductions shall be generated from
shutting down the existing emissions unit that is replaced.
(i) The emissions unit is a reconstructed unit within the meaning
of Sec. 60.15(b)(1) of this chapter, or the emissions unit completely
takes the place of an existing emissions unit.
(ii) The emissions unit is identical to or functionally equivalent
to the replaced emissions unit.
(iii) The replacement does not change the basic design parameter(s)
(as discussed in paragraph (y)(2) of this section) of the process unit.
(iv) The replaced emissions unit is permanently removed from the
major stationary source, otherwise permanently disabled, or permanently
barred from operation by a permit that is enforceable as a practical
matter. If the replaced emissions unit is brought back into operation,
it shall constitute a new emissions unit.
* * * * *
(w) * * *
(6) Setting the 10-year actuals PAL level. (i) Except as provided
in paragraph (w)(6)(ii) of this section, the plan shall provide that
the actuals PAL level for a major stationary source shall be
established as the sum of the baseline actual emissions (as defined in
paragraph (b)(47) of this section) of the PAL pollutant for each
emissions unit at the source; plus an amount equal to the applicable
significant level for the PAL pollutant under paragraph (b)(23) of this
section or under the Act, whichever is lower. When establishing the
actuals PAL level, for a PAL pollutant, only one consecutive 24-month
period must be used to determine the baseline actual emissions for all
existing emissions units. However, a different consecutive 24-month
period may be used for each different PAL pollutant. Emissions
associated with units that were permanently shut down after this 24-
month period must be subtracted from the PAL level. The reviewing
authority shall specify a reduced PAL level(s) (in tons/yr) in the PAL
permit to become effective on the future compliance date(s) of any
applicable Federal or State regulatory requirement(s) that the
reviewing authority is aware of prior to issuance of the PAL permit.
For instance, if the source owner or operator will be required to
reduce emissions from industrial boilers in half from baseline
emissions of 60 ppm NOX to a new rule limit of 30 ppm, then
the permit shall contain a future effective PAL level that is equal to
the current PAL level reduced by half of the original baseline
emissions of such unit(s).
(ii) For newly constructed units (which do not include
modifications to existing units) on which actual construction began
after the 24-month period, in lieu of adding the baseline actual
emissions as specified in paragraph (w)(6)(i) of this section, the
emissions must be added to the PAL level in an amount equal to the
potential to emit of the units.
* * * * *
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
0
2. Section 52.21 is amended:
0
a. By revising paragraph (b)(7)(ii).
0
b. By adding paragraph (b)(33).
0
c. By revising paragraph (aa)(6).
[[Page 63029]]
The revisions read as follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
(b) * * *
(7) * * *
(ii) An existing emissions unit is any emissions unit that does not
meet the requirements in paragraph (b)(7)(i) of this section. A
replacement unit, as defined in paragraph (b)(33) of this section, is
an existing emissions unit.
* * * * *
(33) Replacement unit means an emissions unit for which all the
criteria listed in paragraphs (b)(33)(i) through (iv) of this section
are met. No creditable emission reductions shall be generated from
shutting down the existing emissions unit that is replaced.
(i) The emissions unit is a reconstructed unit within the meaning
of Sec. 60.15(b)(1) of this chapter, or the emissions unit completely
takes the place of an existing emissions unit.
(ii) The emissions unit is identical to or functionally equivalent
to the replaced emissions unit.
(iii) The replacement does not alter the basic design parameters
(as discussed in paragraph (cc)(2) of this section) of the process
unit.
(iv) The replaced emissions unit is permanently removed from the
major stationary source, otherwise permanently disabled, or permanently
barred from operation by a permit that is enforceable as a practical
matter. If the replaced emissions unit is brought back into operation,
it shall constitute a new emissions unit.
* * * * *
(aa) * * *
(6) Setting the 10-year actuals PAL level. (i) Except as provided
in paragraph (aa)(6)(ii) of this section, the plan shall provide that
the actuals PAL level for a major stationary source shall be
established as the sum of the baseline actual emissions (as defined in
paragraph (b)(48) of this section) of the PAL pollutant for each
emissions unit at the source; plus an amount equal to the applicable
significant level for the PAL pollutant under paragraph (b)(23) of this
section or under the Act, whichever is lower. When establishing the
actuals PAL level, for a PAL pollutant, only one consecutive 24-month
period must be used to determine the baseline actual emissions for all
existing emissions units. However, a different consecutive 24-month
period may be used for each different PAL pollutant. Emissions
associated with units that were permanently shut down after this 24-
month period must be subtracted from the PAL level. The reviewing
authority shall specify a reduced PAL level(s) (in tons/yr) in the PAL
permit to become effective on the future compliance date(s) of any
applicable Federal or State regulatory requirement(s) that the
reviewing authority is aware of prior to issuance of the PAL permit.
For instance, if the source owner or operator will be required to
reduce emissions from industrial boilers in half from baseline
emissions of 60 ppm NOX to a new rule limit of 30 ppm, then
the permit shall contain a future effective PAL level that is equal to
the current PAL level reduced by half of the original baseline
emissions of such unit(s).
(ii) For newly constructed units (which do not include
modifications to existing units) on which actual construction began
after the 24-month period, in lieu of adding the baseline actual
emissions as specified in paragraph (aa)(6)(i) of this section, the
emissions must be added to the PAL level in an amount equal to the
potential to emit of the units.
[FR Doc. 03-28104 Filed 11-6-03; 8:45 am]
BILLING CODE 6560-50-P