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Federal Register/Vol. 74, No. 10/Thursday, January 15, 2009/Rules and Regulations
process. This 3-year rebuttable
presumption will apply prospectively
from the effective date of this notice. At
that time, we will begin using this 3-
year presumptive timeframe when
reviewing activities that postdate the
effective date of this notice for
aggregation. Furthermore, permitting
authorities may also adopt this
presumptive timeframe as guidance for
their sources.
In applying this presumption, the
time period separating physical or
operational changes should be
calculated based on time of approval
(i.e., minor NSR permit issuance). If a
permit has not been, or will not be,
issued for the physical or operational
changes, the time period should be
based on when construction commences
on the changes.
C. Retention of Current Rule Text
In our 2006 proposal, we proposed to
amend our rule definition for "project"
to provide that "[p]rojects occurring at
the same stationary source that are
dependent on each other to be
economically or technically viable are
considered a single project." As
discussed earlier in this notice, we have
concluded that the terms "economically
viable" and "technically viable," and
what is meant to be economically or
technically dependent, are difficult to
define clearly and should not be
adopted as regulatory bright lines. We
are, therefore, not promulgating the
proposed rule for aggregation,9 nor are
we adopting the descriptions of
technical and economic viability and
dependence that were set forth in the
2006 proposal preamble. We believe the
statements made in this notice better
explain the NSR Aggregation policy and
enable permitting authorities and
sources to better implement the current
rule text without revision.
D. Environmental Impact
We have determined that the
aggregation policy set forth in this
notice will not significantly affect air
quality and not interfere with
achievement of the purposes of the NSR
program. Although this notice aims to
add certainty to some aspects of the
process for making aggregation
decisions, it is very unlikely to change
the aggregation outcomes in the vast
majority of instances.
For example, while this policy clearly
specifies that the basis for aggregation is
a substantial technical or economic
relationship, our experience is that most
prior aggregation and nonaggregation9 Proposed at 51.165(a)(1)(xxix)(A);
51.166(b)(51)(i); and 52.21(b)(52)(i).decisions already relied on technical or
economic relationships to a large degree
even if it was not clearly specified that
this should be the basis, and we expect
that they would have continued to do so
even absent this action. Moreover, even
allowing for the possibility that a future
aggregation or nonaggregation decision
could, absent this notice, theoretically
have been expressed as relying upon
factors other than the technical or
economic interrelationship of activities
(e.g., on timing alone, or the plant's
overall basic purpose), it is not a given
that such an aggregation decision would
have been any different if the reviewing
authority had instead examined the
technical or economic relationship.
Even under the new 3-year rebuttable
presumption for nonaggregation, we do
not expect a significant difference in
outcome compared to how physical or
operational changes would have been
aggregated without the presumption. We
expect that there would be few cases
under the prior aggregation policy
where activities divided by three years
or more would have been aggregated for
purposes of NSR unless there was a
strong technical or economic linkage
between them. This outcome would be
identical under this policy, which
allows for the 3-year presumption to be
rebutted in such cases. Thus, while the
presumption can assist permitting
authorities by streamlining the process
for aggregation decisions, it is not likely
to lead to appreciably different
outcomes.
Therefore, we conclude that there
would be negligible environmental
impact associated with this final action
on aggregation.
IV. Project Netting
In our September 14, 2006 proposal,
we proposed a regulatory change to
enable emissions decreases from a
project to be included in the calculation
of whether a significant emissions
increase will result from the project. We
refer to this NSR concept as "project
netting." o10
We are not taking action on the
proposal rule for project netting at this
time. We are still considering whether
and how to proceed with the project
netting proposal. Until we decide on
how to proceed with the 2006 proposal
for project netting, there is no change in
how the Agency views project netting.
Therefore, nothing in the September
2006 proposed amendments on project
netting should be taken as establishing
any change in the Agency's
interpretation of its current rules, nor10 See 71 FR 54248-9 for a more complete
description of "project netting."should any of the statements in the 2006
preamble characterizing our current
rules be cited as demonstrating the
Agency's interpretation of our current
rules.
V. Statutory and Executive Order
Reviews
A. Executive Order 12866-Regulatory
Planning and Review
This action is not a "significant
regulatory action" under the terms of
Executive Order (EO) 12866 (58 FR
51735, October 4, 1993) and is therefore
not subject to review under the EO.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. We are
not promulgating any new paperwork
requirements (e.g., monitoring,
reporting, recordkeeping) as part of this
proposed action. However, 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. The OMB
control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Analysis
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 will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of this action on small entities, a "small
entity" is defined as: (1) A small
business as defined by the Small
Business Administration's (SBA)
regulations at 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; 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 final action on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
In determining whether a rule has asignificant economic impact on a
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United States. Office of the Federal Register. Federal Register, Volume 74, Number 10, January 15, 2009, Pages 2293-2756, periodical, January 15, 2009; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc132872/m1/98/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.