[Federal Register Volume 78, Number 236 (Monday, December 9, 2013)]
[Rules and Regulations]
[Pages 73698-73702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29196]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2006-0605; FRL-9903-84-OAR]
RIN 2060-AR99
Prevention of Significant Deterioration for Particulate Matter
Less Than 2.5 Micrometers--Significant Impact Levels and Significant
Monitoring Concentration: Removal of Vacated Elements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On January 22, 2013, the United States Court of Appeals for
the District of Columbia Circuit (the Court) granted a request from the
EPA to vacate and remand to the EPA portions of two Prevention of
Significant Deterioration (PSD) regulations, promulgated in 2010 under
the authority of the Clean Air Act (CAA), regarding the Significant
Impact Levels (SILs) for particulate matter less than 2.5 micrometers
(PM2.5). The Court further vacated the portions of the PSD
regulations establishing a PM2.5 Significant Monitoring
Concentration (SMC). The EPA is amending its regulations to remove the
vacated PM2.5 SILs and SMC provisions from the PSD
regulations in the Code of Federal Regulations (CFR). This action is
exempt from notice-and-comment rulemaking because it is ministerial in
nature. The EPA will initiate a separate rulemaking in the future
regarding the PM2.5 SILs that will address the Court's
remand.
DATES: This final rule is effective December 9, 2013.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2006-0605. All documents in the docket are
listed on the www.regulations.gov Web site. Publicly available docket
materials are available either electronically through
www.regulations.gov or in hard copy at the EPA Docket Center (Air
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.
FOR FURTHER INFORMATION CONTACT: Mr. Ben Garwood, Office of Air Quality
Planning and Standards (C504-03), U.S. EPA, Research Triangle Park,
North Carolina 27709, telephone number (919) 541-1358, facsimile number
(919) 541-5509, email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Does this regulation apply to me?
The entities potentially affected by this rule include new and
modified major stationary sources in all industry groups. To determine
whether your facility would be affected by this action, you should
carefully examine the applicability criteria in 40 CFR 51.166 and
52.21. Entities potentially affected by this final action also include
state, local and tribal governments that issue PSD permits.
II. Background and Rationale for This Final Action
The PSD permit program applies to any new major stationary source
or major modification at a stationary source located in a designated
attainment or unclassifiable area for any regulated NSR pollutant.\1\
The PSD
[[Page 73699]]
regulations require, among other things, compliance with emission
limitations achievable through installation of best achievable control
technology (BACT); an air quality analysis to show that the newly
constructed source or modification will not cause or contribute to a
violation of any National Ambient Air Quality Standard (NAAQS) or
applicable PSD increment,\2\ including analysis of air quality
monitoring data; an assessment of impacts on visibility and other
conditions in national parks and similar federal lands in certain
areas; an additional impacts analysis as defined by 40 CFR 51.166(o)
and 40 CFR 52.21(o); and an opportunity for public involvement. The EPA
regulations for the PSD program are contained in 40 CFR 51.166
(applicable to air agencies that issue permits under EPA-approved state
implementation plans (SIPs)) and 40 CFR 52.21 (the federal PSD program
applicable to permits issued by the EPA or by delegated air agencies).
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\1\ The PSD program stems from part C of title I of the CAA.
\2\ An ``increment'' is the mechanism used in the PSD program to
define significant deterioration of ambient air quality for a
criteria pollutant. An increment is the maximum allowable increase
in ambient concentrations of a pollutant in an area relative to a
specified baseline concentration. In general, a change in ambient
pollutant concentrations greater than the amount defined by an
increment is thus considered to significantly deteriorate air
quality and cannot be allowed.
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In 1997, the EPA revised its NAAQS for particulate matter to
include standards for a new indicator, PM2.5, 62 FR 38652
(July 18, 1997). The EPA revised the PM2.5 NAAQS in 2006, 71
FR 61144 (October 17, 2006), and also in 2013, 78 FR 103086 (January
15, 2013). On October 20, 2010, the EPA published a final rule
establishing PSD provisions to implement increments, SILs and an SMC
for PM2.5. Prevention of Significant Deterioration (PSD) for
Particulate Matter Less than 2.5 Micrometers (PM2.5)
Increments, Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC), 75 FR 64864 (Oct. 20, 2010). The SILs are
screening tools that have been applied in PSD permitting to demonstrate
that the proposed source's allowable emissions will not cause or
contribute to a violation of the NAAQS or increment (such demonstration
is required to obtain a permit). The SMC has been used to exempt
sources from a requirement in the CAA to collect preconstruction
monitoring data for up to 1 year before submitting a permit application
in order to help determine existing ambient air quality.
On December 17, 2010, the Sierra Club petitioned the Court to
review the 2010 PM2.5 SILs and SMC final rule. On January
22, 2013, the Court granted a request from the EPA to vacate and remand
to the EPA portions of the PSD regulations (40 CFR 51.166(k)(2) and
52.21(k)(2)) establishing the SILs for PM2.5 so that the EPA
could reconcile the inconsistency between the regulatory text and
certain statements in the preamble to the 2010 final rule. Sierra Club
v. EPA, 705 F.3d 458, 463-64 (D.C. Cir. 2013). The Court further
vacated the portions of the PSD regulations (40 CFR 51.166(i)(5)(i)(c)
and 52.21(i)(5)(i)(c)) establishing a PM2.5 SMC, finding
that the EPA lacked legal authority to adopt and use the
PM2.5 SMC to exempt permit applicants from the statutory
requirement to compile and submit ambient monitoring data. Id. at 468-
69.
III. Final Action
This final action removes from the CFR the affected
PM2.5 SILs and SMC provisions vacated by the Court's
decision. Because the Court specifically vacated and remanded the
PM2.5 SILs in sections 51.166(k)(2) and 52.21(k)(2), the EPA
is removing the text and reserving the paragraphs in sections
51.166(k)(2) and 52.21(k)(2). The Court explicitly declined to vacate
the PM2.5 ``significance levels'' at section 51.165(b)(2),
and accordingly we are not taking any final action to make any change
to that section. The EPA will initiate a separate rulemaking in the
future regarding the PM2.5 SILs that will address the
remand.
Moreover, because the Court vacated the SMC provisions in 40 CFR
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), the EPA is revising the
existing concentration for the PM2.5 SMC listed in sections
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms per cubic
meter (0 [mu]g/m\3\). The EPA is not entirely removing PM2.5
as a listed pollutant in the SMC provisions because to do so might lead
to the issuance of permits that contradict the holding of the Court as
to the statutory monitoring requirements. Both sections
51.166(i)(5)(iii) and 52.21(i)(5)(iii) permit the reviewing authority
to exempt a permit applicant from the monitoring requirements if
``[t]he pollutant is not listed in paragraph (i)(5)(i) of this
section.'' Were EPA to completely remove PM2.5 from the list
of pollutants in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) of
the PSD regulations, PM2.5 would no longer be a listed
pollutant and the paragraph (iii) provision could be interpreted as
giving reviewing authorities the discretion to exempt permit applicants
from the requirement to conduct monitoring for PM2.5, in
contravention of the Court's decision and the CAA. Instead, the EPA is
revising the concentration listed in sections 51.166(i)(5)(i)(c) and
52.21(i)(5)(i)(c) to 0 [mu]g/m\3\. This means that there is no air
quality impact level below which a reviewing authority has the
discretion to exempt a source from the PM2.5 monitoring
requirements. By continuing to include PM2.5 as a pollutant
in the list contained in sections 51.166(i)(5)(i) and 52.21(i)(5)(i),
with the numerical value replaced with 0 [mu]g/m\3\, we avoid any
concern that paragraph (iii) of the two affected sections could be
applied to excuse permit applicants from adequately addressing the
monitoring requirement for PM2.5.
The EPA is taking this action as a final rule without providing an
opportunity for public comment or a public hearing because the EPA
finds that the Administrative Procedure Act (APA) good cause exemption
applies here. In general, the APA requires that general notice of
proposed rulemaking shall be published in the Federal Register. Such
notice must provide an opportunity for public participation in the
rulemaking process. However, the APA does provide an avenue for an
agency to directly issue a final rulemaking in certain specific
instances. This may occur, in particular, when an agency for good cause
finds (and incorporates the finding and a brief statement of reasons in
the rule issued) that notice and public procedure thereon are
impracticable, unnecessary or contrary to the public interest. See 5
USC 553(b)(3)(B). The EPA has determined that it is not necessary to
provide a public hearing or an opportunity for public comment on this
action because the amendment of the regulations to remove the affected
provisions for the PM2.5 SILs and SMC is a necessary
ministerial act. As the Court vacated the PM2.5 SILs and SMC
provisions, the EPA no longer has the authority to allow the use of the
affected provisions after the Court's final decision. Therefore, in as
much as this action to remove the affected regulatory text simply
implements the decision of the Court, it would serve no useful purpose
to provide an opportunity for public comment or a public hearing on
this issue.
In addition, notice and comment would be contrary to the public
interest because it would unnecessarily delay the removal of the
unlawful PM2.5 SIL and SMC provisions from the CFR, which
could result in confusion on the part of the regulated industry and
state, local and tribal air agencies about how the Court's decision
affects the PSD regulations and PSD permitting. Promulgation of this
rule soon after the Court's decision serves to clarify that
[[Page 73700]]
sources cannot continue to rely on the PSD PM2.5 SILs and
SMC as was previously allowed. Given the substantial costs to the
owner/operator of projects associated with delays and uncertainty, it
is in the public interest for the EPA to amend the CFR without delay.
For these reasons, the EPA finds good cause to issue a final
rulemaking pursuant to section 553 of the APA, 5 U.S.C. 553(b)(B).
Therefore, the requirements of CAA section 307(d), including the
requirement for public comment and hearing on proposed rulemakings, do
not apply to this action.
IV. Implementation
The Court's vacatur of the PM2.5 SILs in 40 CFR
51.166(k)(2) and 52.21(k)(2) and the SMC provisions in sections
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) means that these provisions
can no longer be relied upon by either permit applicants or permitting
authorities. The EPA has already stopped relying on sections
52.21(k)(2) and 52.21(i)(5)(i)(c) of the federal PSD regulations when
we issue PSD permits. We have also advised state and local air agencies
to which we have delegated our authority to issue permits under the
federal PSD program (codified at section 52.21) not to rely on these
provisions. Permitting authorities with EPA-approved SIPs containing
any or all of the affected PM2.5 SIL and SMC provisions
previously allowed by sections 51.166(k)(2) and 51.166(i)(5)(i)(c)
should remove their corresponding SILs provisions and revise the
numerical value of the PM2.5 SMC to 0 [mu]g/m\3\ (or make
equivalent changes) as soon as feasible, which may be in conjunction
with the next otherwise planned SIP revision. Furthermore, the EPA
advises that these provisions as reflected in the existing state and
local EPA-approved SIPs are unlawful and may not be applied even prior
to their removal from the SIPs.
The Agency has provided a question and answer document regarding
the implications of the Court's decision in various contexts (Guidance
on the Applicability of the January 22, 2013 Circuit Court Decision on
PM2.5 Significant Impact Levels and Significant Monitoring
Concentration). This document is available on the agency's Web site
located at http://www.epa.gov/nsr/guidance.html.
V. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning 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 Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has previously approved
the information collection requirements for the PSD program, including
the requirements addressed by this rule, under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB
control number 2060-0003.
Pursuant to title I, part C, of the Act, the PSD program requires
the owner or operator to obtain a permit prior to either constructing a
new major stationary source or making a major modification to an
existing major stationary source. The information collection for
sources under PSD results from the requirement for owners or operators
to submit applications for NSR permits. For reviewing authorities, the
information collection results from the requirement to process permit
applications and issue permits, and to transmit associated information
to the EPA. The EPA oversees the PSD program, and the information
collected by sources and reviewing authorities is used to ensure that
the program is properly implemented.
We anticipate that some sources currently in the permitting process
will no longer be able to apply the PM2.5 SMC to assert an
exemption from the statutory requirement to submit air quality
monitoring data as defined by CAA section 165(e)(2). The air quality
monitoring data required to be submitted by permit applicants is often
readily available as part of existing representative ambient air
quality data available for public review. We also anticipate that some
sources currently in the permitting process will no longer be able to
apply the PM2.5 SIL as an automatic ``safe harbor'' to
satisfy the statutory requirement to show that the proposed source will
not cause or contribute to a violation of the NAAQS or increment under
CAA section 165(a)(3). Some sources may be required to conduct a more
comprehensive air quality analysis in order to make the demonstration
required by the statute where, for example, background air quality is
close to the level of the NAAQS.
Any burden anticipated as a result of this rule has already been
addressed in the analysis conducted for the final rule establishing PSD
provisions to implement increments, SILs and a SMC for
PM2.5. Prevention of Significant Deterioration (PSD) for
Particulate Matter Less than 2.5 Micrometers (PM2.5)
Increments, Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC), 75 FR 64864 (Oct. 20, 2010). In that rule, over
the 3-year period covered by the ICR,\3\ we estimated an average annual
burden totaling about 29,000 hours and $2.8 million for all industry
entities that would be affected by the final rule. In addition, burden
was calculated for state and local agencies to revise their SIPs to
incorporate the changes. Over the 3-year period covered by the ICR for
the 2010 rule, we estimated that the average annual burden for all
State and local reviewing authorities will total about 7,500 hours and
$581,000. Burden is defined at 5 CFR 1320.3(b). The burden calculated
in the 2010 rule was a conservative estimate as the analysis assumed
that the same number of sources would collect and submit air quality
monitoring data and conduct a comprehensive air quality analysis
despite the promulgation of the PM2.5 SMC and SILs in that
rule. Therefore, the current rule does not add any further burden that
was not already anticipated and addressed by the previous 2010 rule and
ICR.
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\3\ Information Collection Required for Changes to 40 CFR parts
51 and 52: Prevention of Significant Deterioration (PSD) for
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant
Monitoring Concentration (SMC) June 2010.
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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 Act
Today's good cause final rule is not subject to the Regulatory
Flexibility Act (RFA), which generally requires an agency to prepare a
regulatory flexibility analysis for any rule that will have a
significant economic impact on a substantial number of small entities.
The RFA applies only to rules subject to notice-and-comment rulemaking
requirements under the APA or any other statute. This rule is not
subject to notice-and-comment requirements under the APA or any other
statute
[[Page 73701]]
because although the rule is subject to the APA, the agency has invoked
the ``good cause'' exemption under 5 USC 553(b), and therefore it is
not subject to the notice-and-comment requirement.
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.
The 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 good cause
final action addresses the Court's vacatur of certain PSD regulations.
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. This good cause final action
addresses the Court's vacatur of certain PSD regulations. Thus,
Executive Order 13132 does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have
substantial direct effects on tribal governments, on the relationship
between the federal government and Indian tribes or on the distribution
of power and responsibilities between the federal government and Indian
tribes, as specified in Executive Order 13175. This good cause final
action addresses the Court's vacatur of certain PSD regulations. Thus,
Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The 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 it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions 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 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 the EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, the
EPA did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, 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 good cause final 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.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of 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 on December 9, 2013.
VI. Statutory Authority
The statutory authority for this action is provided by sections
165-169 and 301 of the Act as amended (42 U.S.C. 7475-7479 and 7601).
VII. Judicial Review
Under section 307(b)(1) of the Act, judicial review of this 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 February
7, 2014. Under section 307(b)(2) of the CAA, the requirements that are
the subject of this final rule may not be challenged later in civil or
criminal proceedings brought by us to enforce these requirements.
List of Subjects
40 CFR Part 51
Administrative practices and procedures, Air pollution control,
Environmental protection, Intergovernmental relations.
40 CFR Part 52
Administrative practices and procedures, Air pollution control,
Environmental protection, Incorporation by reference, Intergovernmental
relations.
Dated: November 26, 2013.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows.
[[Page 73702]]
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
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.
0
2. Section 51.166 is amended as follows:
0
a. By removing the words ``4 [mu]g/m\3\, 24-hour average,'' and adding
in their place ''0 [mu]g/m\3\'' in paragraph (i)(5)(i)(c).
0
b. By adding a note to paragraph (i)(5)(i)(c).
0
c. By removing and reserving paragraph (k)(2).
The addition reads as follows:
Sec. 51.166 Prevention of significant deterioration of air quality.
* * * * *
(i) * * *
(5) * * *
(i) * * *
(c) Note to paragraph (i)(5)(i)(c): In accordance with Sierra Club
v. EPA, 706 F.3d 428 (D.C. Cir. 2013), no exemption is available with
regard to PM2.5.
* * * * *
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
3. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
4. Section 52.21 is amended as follows:
0
a. By removing the words ``4 [mu]g/m\3\, 24-hour average,'' and adding
in their place ''0 [mu]g/m\3\'' in paragraph (i)(5)(i)(c).
0
b. By adding a note to paragraph (i)(5)(i)(c).
0
c. By removing and reserving paragraph (k)(2).
The addition reads as follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
* * * * *
(i) * * *
(5) * * *
(i) * * *
(c) Note to paragraph (i)(5)(i)(c): In accordance with Sierra Club
v. EPA, 706 F.3d 428 (DC Cir. 2013), no exemption is available with
regard to PM2.5.
* * * * *
[FR Doc. 2013-29196 Filed 12-6-13; 8:45 am]
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