[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Proposed Rules]
[Pages 82234-82238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33592]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2010-0943; FRL-9614-6]
RIN 2060-AQ55
Amendments to Delegation of Authority Provisions in the
Prevention of Significant Deterioration Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is taking action to propose amendments to the New
Source Review (NSR) Prevention of Significant Deterioration (PSD)
program that would correct certain outdated language that currently
limits EPA's ability to delegate the Federal PSD program to interested
Indian tribes. This action proposes changes that would provide
consistency with the current Federal PSD regulatory requirements by
allowing the EPA to delegate the PSD program to interested tribes for
their attainment areas. The regulations already authorize
administrative delegation, and EPA has in the past delegated
administration of the PSD program to states and local governments for
their attainment areas. The EPA is proposing to delete a restriction on
tribes' ability to take delegation of the PSD program and to include
tribes, along with state and locals, in another section to make it
clear that tribes may voluntarily take direct delegation of the NSR
program in areas that are currently attaining the national ambient air
quality standards (NAAQS). The rule would not impose any new
requirements. The EPA is also proposing to correct a minor
typographical error.
DATES: Comments must be received on or before February 28, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0943, by one of the following methods:
www.regulations.gov. Follow the on-line instructions for
submitting comments.
Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2010-0943 in the subject line of the message.
Fax: Send comments to (202) 566-9744, attention Docket ID
No. EPA-HQ-OAR-2010-0943.
Mail: Amendments to Delegation of Authority Provisions in
the PSD program Docket, Environmental Protection Agency, Mailcode:
6102T, 1200 Pennsylvania Ave. NW., Washington, DC 20460, Attention
Docket ID No. EPA-HQ-OAR-2010-0943.
Hand Delivery: The EPA Docket Center, Public Reading Room,
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460,
Attention Docket ID No. EPA-HQ-OAR-2010-0943. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0943. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means the EPA will not know
your identity or contact information unless you provide it in the body
of your
[[Page 82235]]
comment. If you send an email comment directly to the EPA without going
through http://www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, the EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If the EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses.
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., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Amendments to
Delegation of Authority Provisions in the PSD Program Docket, EPA/DC,
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 564-1742.
FOR FURTHER INFORMATION CONTACT: Regina Chappell, Outreach and
Information Division, Office of Air Quality Planning and Standards,
Mail Code C-304-03, Environmental Protection Agency, Research Triangle
Park, NC 27711; telephone number: (919) 541-3650; fax number: (919)
541-0942; email: [email protected].
SUPPLEMENTARY INFORMATION: The supplementary information in this
preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my comments to the EPA?
1. Submitting CBI
2. Tips for Preparing Your Comments
C. Where can I get a copy of this document?
II. Background Information for Proposed Rule
A. What is the New Source Review Program?
B. What is the statutory authority and regulatory approach for
this proposed action?
C. Why is this action needed?
III. Summary of Proposed Amendments
IV. Summary of Impacts of Proposed Amendments
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory 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 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. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. Does this action apply to me?
Generally, this rule only applies to tribal governments. It removes
a restriction relating to delegation of the Federal NSR PSD program and
allows, but does not require, interested tribes to request such
delegation for sources in their attainment areas. It does not make
changes to the underlying Federal PSD program requirements and thus
should not have significant impact on new or modified sources.
B. What should I consider as I prepare my comments to the EPA?
1. Submitting CBI. Do not submit this information to the EPA
through http://www.regulations.gov or email. Clearly mark the part or
all of the information that you claim to be CBI. For CBI information in
a disk or CD-ROM that you mail to the EPA, mark the outside of the disk
or CD-ROM as CBI and then identify electronically within the disk or
CD-ROM the specific information that is claimed as CBI. In addition to
one complete version of the comment that includes information claimed
as CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
Send or deliver information identified as CBI only to the following
address: Roberto Morales, OAQPS Document Control Officer (C404-02),
Office of Air Quality Planning and Standards, Environmental Protection
Agency, Research Triangle Park, North Carolina 27711, Attention Docket
ID No. EPA-HQ-OAR-2010-0943.
2. Tips for Preparing Comments. When submitting comments, remember
to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where can I get a copy of this document?
In addition to being available in the docket, an electronic copy of
this action will also be available on the Worldwide Web (WWW).
Following signature, a copy of this final action will be posted in the
regulations and standards section of the NSR home page located at
http://www.epa.gov/nsr/, on the Tribal air home page at http://www.epa.gov/oar/tribal and on the Technology Transfer Network (TTN)
policy and guidance page for newly proposed or promulgated rules at the
following address: http://www.epa.gov/ttn/oarpg/. The TTN provides
information and technology exchange in various areas of air pollution
control.
II. Background Information for Proposed Amendments
A. What is the New Source Review Program
The major NSR program contained in parts C and D of title I of the
Clean Air Act is a preconstruction review and permitting program
applicable to new major sources and major modifications at such
sources. In areas meeting the
[[Page 82236]]
NAAQS (``attainment'' areas) or for which there is insufficient
information to determine whether they meet the NAAQS
(``unclassifiable'' areas), the NSR requirements under part C of title
I of the Act apply. We call this portion of the major NSR program the
``Prevention of Significant Deterioration'' or PSD program. In areas
not meeting the NAAQS and in ozone transport regions (OTR), the major
NSR program is implemented under the requirements of part D of title I
of the Act. We call this program the ``nonattainment'' major NSR
program. We have promulgated rules in 40 CFR 52.21 to implement PSD in
portions of the country that do not have approved state or tribal PSD
programs. This proposed action makes corrections to the PSD program in
40 CFR 52.21.
B. What is the statutory authority and regulatory approach for this
proposed action?
The authority for this proposed action is Clean Air Act Section
301(a). EPA notes that Clean Air Act Section 301(d) (which postdates
the original regulation that established 52.21(u)) and its implementing
regulations under the Tribal Authority Rule (TAR) at 40 CFR 49.6 and
49.7 allow tribes to seek approval for such programs covering their
reservations or other areas within their jurisdiction. These provisions
also establish the criteria tribes must meet and the types of
information that must be included in tribal applications to obtain
eligibility to administer tribal programs, including Tribal
Implementation Plans and tribal NSR programs. The TAR allows tribes to
seek approval for such programs covering their reservations or other
areas within their jurisdiction.
However, although section 301(d) of the Act and the TAR authorize
the EPA to review and approve tribal programs, neither the Act nor the
regulations require EPA approval of tribal programs as the sole
mechanism available for tribal agencies to take on permitting
responsibilities. Some tribes may choose not to develop tribal NSR
programs for submission to the EPA for approval under the TAR, but may
still wish to assist the EPA in implementing all or some portion of the
Federal PSD program for their area of Indian country. Accordingly, we
are exercising our discretion to propose corrections for 40 CFR 52.21,
which will remove a restriction that had prevented EPA from delegating
administration of the Federal PSD program to interested tribal agencies
for their attainment areas. By administering the Federal program
through a delegation, tribal agencies may remain appropriately involved
in implementation of an important air quality program and may develop
their own capacity to manage such programs in the future should they
choose to do so. Removing this restriction is consistent with EPA's
existing and well-established procedures for delegating administration
of Federal CAA programs, including existing provisions at 40 CFR 52.21
(u)--which already provides for administrative delegation to state and
local agencies, but which currently prevents delegation to interested
tribes--40 CFR 71.4(j) and 71.10 (Federal operating permits), 40 CFR
49.122 (Federal air rules for Indian reservations in the Pacific
Northwest), and 40 CFR 49.161 and 49.173 (NSR rules for Indian
country).
C. Why is this action needed?
This action will enable EPA to delegate the Federal PSD program (40
CFR 52.21(u)) to interested Indian tribes. This action is consistent
with existing PSD regulatory requirements, which already provide for
delegation of administration of the program, and makes that opportunity
available to tribes by allowing EPA to delegate administration of the
PSD program to interested tribes.
III. Summary of Proposed Amendments
We are proposing to amend the NSR PSD program provisions at 40 CFR
52.21, paragraph (u) Delegation of Authority. In paragraph (u)(1), we
are correcting an erroneous cross reference and deleting a cross
reference that is no longer needed. In paragraph (u)(2)(i), the current
provisions state that the delegate agency shall consult with the
appropriate state and local air pollution control agency. We are
proposing to include tribes along with state and local air pollution
control agencies in this provision to provide equivalent involvement
for tribal air pollution control agencies. The paragraph (u)(3)
provision for reviewing a source or modification located on an Indian
Reservation states that the review authority shall not be redelegated
other than to an EPA Regional Office except where the state has assumed
jurisdiction over such land would no longer be in effect upon EPA
amending subsection (u). We are proposing to delete paragraph (u)(3) to
remove this restriction which had prevented EPA from delegating the PSD
program to interested tribes, and to redesignate current paragraph
(u)(4) as new paragraph (u)(3). These amendments will provide
appropriate opportunities for interested tribes to seek delegation of
the Federal PSD program over relevant sources and modifications in
their areas.
IV. Summary of Impacts of Proposed Amendments
This action will allow, but not require, interested tribes to take
direct delegation of the Federal PSD program. It does not make changes
to the underlying Federal requirement (meaning the requirement that the
EPA must implement the program where delegation does not occur) and
thus should not have a significant impact on new or modifying sources.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory 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 Orders 12866 and
13563 (76 FR 3281, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This action only allows tribes to implement an existing program. This
action does not change the underlying Federal requirements; it will
allow interested tribes to accept delegation. However, the Office of
Management and Budget (OMB) has previously approved the information
collection requirements contained in the existing regulations 40 CFR
52.21 under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., and has assigned OMB control number 2060-0003. The OMB
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR
part 9.
C. Regulatory Flexibility 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 would not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
For the 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 regulations at 13 CFR 121.201;
(2) a small
[[Page 82237]]
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 proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Small
entities will not incur any adverse impacts as a result of this rule
because this action does not create any new requirements or burdens. No
costs are associated with these amendments to part 52. This proposed
rule will not impose any requirements on small entities. We continue to
be interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. This action imposes no enforceable duty on any state, local or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 and 205 of the UMRA.
This action 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. This action will
allow tribes to voluntarily take delegation of the PSD requirements but
does not require them to do so.
E. Executive Order 13132: Federalism
This 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. The EPA has implementing authority
for 40 CFR part 52 for Indian country. This action allows interested
tribes to take delegation of the Federal program if they choose; it
does not modify the responsibility of the EPA to implement the program
where no delegation occurs. Thus, EO 13132 does not apply to this
action.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between the EPA and state and local
governments, the EPA specifically solicits comment on this proposed
action from state and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by tribal governments, or
the EPA consults with tribal officials early in the process of
developing the proposed regulation and develops a tribal summary impact
statement.
The EPA has concluded that this action will have tribal
implications. However, it will neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law. This
proposed rule does not impose any requirements on tribes so it does not
impose substantial direct costs. However, it does support tribal self-
governance by enabling tribes to implement the Federal PSD program as
the EPA's delegate, if they choose.
The EPA consulted with tribal officials early in the process of
developing this regulation to permit them to have meaningful and timely
input into its development. Tribal consultation was offered in a
consultation letter to all federally recognized tribes on November 10,
2011. We will provide consultation to those tribes who request
consultation. We have also participated in various tribal meetings
attended by tribal environmental professionals, i.e., National Tribal
Air Association (NTAA), National Tribal Forum (NTF). We have received
no adverse comments when this proposal was presented at those various
meetings. The EPA specifically solicits additional comment on this
proposed action from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA Interprets Executive Order 13045 (62 FR 19885, April 23,
1977) as applying to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the 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 specification, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs the EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, the EPA is not considering the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 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.
The EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This proposed rule imposes no new requirements but does
allow interested tribes to accept delegation of the existing Federal
program.
[[Page 82238]]
List of Subjects in 40 CFR Part 52
Air pollution control, Environmental protection, Indians, Indians--
law, and Indians--tribal government.
Dated: December 22, 2011.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble, the Environmental
Protection Agency proposes to amend 40 CFR part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Amend Sec. 52.21 by revising paragraphs (u)(1) and (u)(2)(i)
and by removing paragraph (u)(3) and redesignating paragraph (u)(4) as
paragraph (u)(3) to read as follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
* * * * *
(u) Delegation of authority. (1) The Administrator shall have the
authority to delegate his responsibility for conducting source review
pursuant to this section, in accordance with paragraph (u)(2) of this
section.
(2) * * *
(i) Where the delegate agency is not an air pollution control
agency, it shall consult with the appropriate state, tribe, and local
air pollution control agency prior to making any determination under
this section. Similarly, where the delegate agency does not have
continuing responsibility for managing land use, it shall consult with
the appropriate state, tribe, and local agency primarily responsible
for managing land use prior to making any determination under this
section.
* * * * *
[FR Doc. 2011-33592 Filed 12-29-11; 8:45 am]
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