2024-24281. Prevention of Significant Deterioration (PSD): Paragraph Designation Corrections

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Environmental Protection Agency

1. 40 CFR Parts 51 and 52
2. [EPA-HQ-OAR-2024-0234; FRL-11945-01-OAR]

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is amending its Prevention of Significant Deterioration (PSD) regulations to correct the fourth-level paragraph designations to conform with the Office of the Federal Register (OFR) requirements. This is a ministerial final rule action that involves minor technical corrections.

DATES:

This rule is effective October 22, 2024.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2024-0234. All documents in the docket are listed on the https://www.regulations.gov website. Publicly available docket materials are available either electronically through https://www.regulations.gov or in hard copy at the EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding federal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the Office of Air and Radiation Docket is [phone].

FOR FURTHER INFORMATION CONTACT:

Questions concerning this final rule should be addressed to Mr. Peter Keller, Air Quality Policy Division, Office of Air Quality Planning and Standards (C539-04), U.S. Environmental Protection Agency, Post Office Box 12055, Research Triangle Park, NC 27711; telephone number: [phone]; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

The information presented in this preamble is organized as follows:

I. Does this action apply to me?

II. Background and Rationale for This Action

III. Final Action

IV. Statutory and Executive Order Reviews

V. Statutory Authority

VI. Judicial Review

I. Does this action apply to me?

No entities will be affected by this final action. The EPA is amending its PSD regulations to correct the fourth-level paragraph designations from the Code of Federal Regulations (CFR) to conform with the OFR requirements. The EPA is responsible for making the required paragraph codification corrections in the EPA PSD regulations and communicating those corrections to stakeholders, including state, local, and Tribal (SLT) permitting authorities and regulated entities. SLT permitting authorities are not required to make corresponding corrections to any of their regulations implementing the PSD program including those approved by the EPA into a State Implementation Plan (SIP).

II. Background and Rationale for This Action

Part C of title I of the Clean Air Act (CAA), 42 U.S.C. 7470 et seq., contains the requirements for a component of the major New Source Review (NSR) program known as the PSD program. This program sets forth procedures for the preconstruction review and permitting of new and modified stationary sources of air pollution located in areas meeting the National Ambient Air Quality Standards (NAAQS) (“attainment” areas) and areas for which there is insufficient information to classify an area as either attainment or nonattainment (“unclassifiable” areas). The EPA's PSD regulations are contained in 40 CFR ( print page 84287) 51.166 (applicable to air agencies that issue permits under EPA-approved SIPs) and 40 CFR 52.21 (applicable to permits issued by the EPA or air agencies that have received delegation to implement the federal PSD program).

In 2019, the OFR identified that the paragraph codification scheme of these PSD regulations was inconsistent with OFR requirements, and the EPA committed to correcting this inconsistency. However, recently as part of OFR's review of the proposed rule: “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Regulations Related to Project Emissions Accounting” (RIN 2060-AV62), the OFR determined that the EPA had not yet made the corrections. To resolve the OFR's concerns, the EPA is revising the PSD regulations to conform with the OFR requirements ^[1] through this ministerial final rule action to correct the fourth-level paragraph designations. Specifically, this rule will correct the fourth-level paragraph codification in 40 CFR 51.166 and 40 CFR 52.21 from ( a), et seq., to (A), et seq. In other words, the fourth-level paragraph designations will be changed from lowercase italicized letters to uppercase non-italicized letters.

The error in the fourth-level paragraph codification in the EPA's PSD regulations can be traced back to their inception in the 1970s. On December 5, 1974, the EPA published the first set of PSD regulations under the CAA Amendments of 1970.^[2] These regulations were codified at 40 CFR 52.21 and established a program for protecting areas with air quality either in attainment with the NAAQS or unclassifiable. A comprehensive set of new PSD requirements were later adopted by Congress as part of the CAA Amendments of 1977.^[3] The EPA amended the PSD regulations to incorporate those new statutory requirements on June 19, 1978 (43 FR 26380 and 43 FR 26388). These regulations were codified at 40 CFR 51.24 (minimum requirements for state plans, later codified at 40 CFR 51.166 ^[4] ) and 40 CFR 52.21 (federal PSD regulations). The PSD regulations were subsequently revised numerous times, but the fourth-level paragraph designations have remained inconsistent with the OFR requirements.^[5] This ministerial final rule will correct the paragraph designation inconsistencies that were established decades ago in the EPA's PSD regulations to conform with the OFR requirements.

III. Final Action

The EPA is promulgating this rule as a final rule without prior notice or opportunity for public comment pursuant to the good cause exemption under the Administrative Procedure Act (APA) section 553(b)(B). 5 U.S.C. 553(b)(B). Generally, the APA requires that general notice of proposed rulemaking be published in the Federal Register and such notice must provide an opportunity for public participation in the rulemaking process. However, the APA also allows an agency to directly promulgate a final rulemaking 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. 5 U.S.C. 553(b)(3)(B).

The EPA has determined that this final action meets the “unnecessary” basis for using the good cause exemption since amendments promulgated in this action are very minor and do not substantively alter the regulation in any way that would be of interest to the regulated community or the public. This final action involves purely ministerial revisions to the PSD regulations in 40 CFR 51.166 and 40 CFR 52.21 involving minor structural corrections to conform with the OFR paragraph designation requirements. Specifically, the fourth-level paragraph designations will be corrected from lowercase italicized letters to uppercase non-italicized letters. The OFR paragraph designation requirements are established by the OFR; therefore, EPA has no discretion but to correct the affected paragraph designations in the EPA PSD regulations. Notice and comment requirements are unnecessary because seeking public comment on this issue would neither inform the public of agency action that may be of interest nor provide the agency with information that would be helpful in developing a final rule.

IV. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/​laws-regulations/​laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review

This action is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 14094, and was, therefore, not subject to Executive Order 12866 review.

B. Paperwork Reduction Act (PRA)

This action involves very minor technical corrections and does not impose any new information collection burden under the PRA. The Office of Management and Budget (OMB) has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0003.

C. Regulatory Flexibility Act (RFA)

This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice and comment requirements because the Agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action implements mandate(s) specifically and explicitly set forth in 44 U.S.C. 15 and 1 CFR chapter I without the exercise of any policy discretion by the EPA.

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.

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

This action does not have tribal implications, as specified in Executive Order 13175. This action only makes very minor technical amendments to correct non-substantive errors in existing regulations. None of these very minor technical amendments has a substantial direct effect on any tribal ( print page 84288) land. Thus, Executive Order 13175 does not apply to this action.

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

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. Therefore, this action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. Since this action does not concern human health, EPA's Policy on Children's Health also does not apply.

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

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations and Executive Order 14096: Revitalizing Our Nation's Commitment to Environmental Justice for All

The EPA finds that this action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on communities with environmental justice concerns. This action changes the fourth-level paragraph designation of the EPA's PSD regulations contained in 40 CFR 51.166 and 40 CFR 52.21 to conform with OFR requirements. This action makes very minor technical amendments to correct non-substantive errors in existing rules.

K. Congressional Review Act (CRA)

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest. 5 U.S.C. 808(2). The EPA has made a good cause finding for this rule as discussed in the Final Action section of this rulemaking, including the basis for that finding.

V. Statutory Authority

Statutory authority to issue the amendments finalized in this action is provided by the same CAA provisions that provided authority to issue the regulations being amended: 42 U.S.C. 7401 et seq. Statutory authority for the rulemaking procedures followed in this action is provided by APA section 553, 5 U.S.C. 553.

VI. Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the D.C. Circuit within 60 days from October 22, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (section 307(b)(2) of the CAA).

List of Subjects in 40 CFR Parts 51 and 52

• Environmental protection
• Administrative practices and procedures
• Air pollution control
• New source review
• Preconstruction permitting
• Prevention of significant deterioration

Michael S. Regan,

Administrator.

For the reasons stated in the preamble, title 40, Chapter I of the Code of Federal Regulations is amended as follows:

PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS

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—Review of New Sources and Modifications

§ 51.166

[Amended]

2. In § 51.166 revise the paragraph level designation for the 4th paragraph level from lowercase italic letters to uppercase non-italic letters.

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart A—General Provisions

§ 52.21

[Amended]

4. In § 52.21, revise the paragraph level designation for the 4th paragraph level from lowercase italic letters to uppercase non-italic letters.

Footnotes

1.  Document Drafting Handbook, August 2018 Edition (Revised 2.1, dated October 2023), Office of the Federal Register, National Archives and Records Administration.

2.  CAA Amendments of 1970, Public Law 91-604, 84 Stat. 1676 (1970); 39 FR 42510.

3.  CAA Amendments of 1977, Public Law 95-95, 91 Stat. 685 (1977).

4.  51 FR 40656 (November 7, 1986).

5.  See 40 CFR 51.166 and 40 CFR 52.21 (July 1, 2023).