Prevention of Significant Deterioration (PSD): Paragraph Designation Corrections

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Parts 51 and 52</CFR> <DEPDOC>[EPA-HQ-OAR-2024-0234; FRL-11945-01-OAR]</DEPDOC> <SUBJECT>Prevention of Significant Deterioration (PSD): Paragraph Designation Corrections</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective October 22, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">https://www.regulations.gov</E> website. Publicly available docket materials are available either electronically through <E T="03">https://www.regulations.gov</E> 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 (202) 566-1744, and the telephone number for the Office of Air and Radiation Docket is (202) 566-1742. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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: (919) 541-2065; email address: <E T="03">keller.peter@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> The information presented in this preamble is organized as follows: <EXTRACT> <FP SOURCE="FP-2">I. Does this action apply to me?</FP> <FP SOURCE="FP-2">II. Background and Rationale for This Action</FP> <FP SOURCE="FP-2">III. Final Action</FP> <FP SOURCE="FP-2">IV. Statutory and Executive Order Reviews</FP> <FP SOURCE="FP-2">V. Statutory Authority</FP> <FP SOURCE="FP-2">VI. Judicial Review</FP> </EXTRACT> <HD SOURCE="HD1">I. Does this action apply to me?</HD> 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). <HD SOURCE="HD1">II. Background and Rationale for This Action</HD> Part C of title I of the Clean Air Act (CAA), 42 U.S.C. 7470 <E T="03">et seq.,</E> 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 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  <SU>1</SU> <FTREF/> 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 ( <E T="03">a</E> ), <E T="03">et seq.,</E> to (A), <E T="03">et seq.</E> In other words, the fourth-level paragraph designations will be changed from lowercase italicized letters to uppercase non-italicized letters. <FTNT> <SU>1</SU>  Document Drafting Handbook, August 2018 Edition (Revised 2.1, dated October 2023), Office of the Federal Register, National Archives and Records Administration. </FTNT> 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. <SU>2</SU> <FTREF/> 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. <SU>3</SU> <FTREF/> 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  <SU>4</SU> <FTREF/> ) 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. <SU>5</SU> <FTREF/> 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. <FTNT> <SU>2</SU>  CAA Amendments of 1970, Public Law 91-604, 84 Stat. 1676 (1970); 39 FR 42510. </FTNT> <FTNT> <SU>3</SU>  CAA Amendments of 1977, Public Law 95-95, 91 Stat. 685 (1977). </FTNT> <FTNT> <SU>4</SU>  51 FR 40656 (November 7, 1986). </FTNT> <FTNT> <SU>5</SU>  See 40 CFR 51.166 and 40 CFR 52.21 (July 1, 2023). </FTNT> <HD SOURCE="HD1">III. Final Action</HD> 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 <E T="04">Federal Register</E> 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. <HD SOURCE="HD1">IV. Statutory and Executive Order Reviews</HD> Additional information about these statutes and Executive Orders can be found at <E T="03">https://www2.epa.gov/laws-regulations/laws-and-executive-orders.</E> <HD SOURCE="HD2">A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review</HD> 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. <HD SOURCE="HD2">B. Paperwork Reduction Act (PRA)</HD> 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. <HD SOURCE="HD2">C. Regulatory Flexibility Act (RFA)</HD> This action is not subject to the RFA. The RFA applies only to rules ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 17k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━