[Federal Register Volume 83, Number 96 (Thursday, May 17, 2018)]
[Proposed Rules]
[Pages 22913-22918]
[FR Doc No: 2018-10458]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2016-0603; FRL-9978-11-Region 5]

Air Plan Approval; Minnesota; PSD Infrastructure SIP Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of a state implementation plan (SIP) submission from
Minnesota regarding the infrastructure requirements of section 110 of
the Clean Air Act (CAA) relating to Prevention of Significant
Deterioration (PSD) for the 1997 ozone, 1997 fine particulate
(PM2.5), 2006 PM2.5, 2008 lead (Pb), 2008 ozone,
2010 nitrogen dioxide (NO2), 2010 sulfur dioxide
(SO2), and 2012 PM2.5 National Ambient Air
Quality Standards (NAAQS). The Minnesota Pollution Control Agency
(MPCA) submitted the SIP revision to EPA on October 4, 2016.

DATES: Comments must be received on or before June 18, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2016-0603 at http://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604,<PHONE_NUMBER>,
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:

I. What is the background of this SIP submission?
II. What guidance is EPA using to evaluate this SIP submission?
III. What is the result of EPA's review of this SIP submission?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What is the background of this SIP submission?

    This rulemaking proposes to approve a SIP submission from MPCA
dated October 4, 2016, which addresses infrastructure requirements
relating to PSD for the 1997 ozone, 1997 PM2.5, 2006
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS.
    The requirement for states to make infrastructure SIP submissions
arises out of CAA section 110(a)(1). Pursuant to CAA section 110(a)(1),
states must make SIP submissions ``within 3 years (or such shorter
period as the Administrator may prescribe) after the promulgation of a
national primary ambient air quality standard (or any revision
thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon EPA's taking any action other than promulgating a new
or revised NAAQS. CAA section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA section 110(a)(1) and (2)
as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA. This
specific rulemaking is only taking action on the infrastructure SIP
elements relating to PSD, provided at CAA sections 110(a)(2)(C),
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J).
    In previous rulemakings, EPA addressed Minnesota's infrastructure
obligations under the various NAAQS. On July 13, 2011 (76 FR 41075),
EPA approved most elements of Minnesota's infrastructure SIP submittal
for the 1997 ozone and 1997 PM2.5 NAAQS. On October 29, 2012
(77 FR 65478), EPA approved most elements of Minnesota's infrastructure
SIP submittal for the 2006 PM2.5 NAAQS. On July 16, 2014 (79
FR 41439), EPA approved most elements of Minnesota's infrastructure SIP
submittal for the 2008 Pb NAAQS. Finally, on October 20, 2015 (80 FR
63436), EPA approved most elements of Minnesota's infrastructure SIP
submittal for the 2008 ozone, 2010 NO2, 2010 SO2,
and 2012 PM2.5 NAAQS. However, because Minnesota did not
have an approved

PSD program at the time of these rulemakings, EPA generally disapproved
infrastructure SIP elements relating to PSD in the rulemakings.\1\
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    \1\ States may develop and implement their own PSD programs,
which are evaluated against EPA's requirements for each component.
States may alternatively decline to develop their own program, but
instead directly implement Federal PSD rules. At the time of the
infrastructure rulemakings referenced above, Minnesota had chosen to
implement the Federally promulgated PSD rules at 40 CFR 52.21, and
EPA had delegated to Minnesota the authority to implement these
regulations. The Federally promulgated rules satisfied all
infrastructure requirements relating to PSD. However, as a delegated
program, these infrastructure elements were not approved into the
Minnesota SIP.
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    MPCA's submission dated October 4, 2016, requested that EPA approve
into its SIP Minnesota Rule 7007.3000, which incorporates by reference
the Federal PSD rules at 40 CFR 52.21. On July 10, 2017 (82 FR 31741),
EPA proposed to approve this request, and on September 26, 2017 (82 FR
44734), EPA finalized approval; the change became effective on October
26, 2017. Therefore, Minnesota is now implementing its own SIP-approved
PSD program.
    In this rulemaking, as requested by Minnesota, EPA is proposing to
find that Minnesota has satisfied all infrastructure SIP elements
relating to PSD, at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II),
110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997 ozone, 1997
PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

II. What guidance is EPA using to evaluate this SIP submission?

    EPA's guidance relating to infrastructure SIP submissions can be
found in a guidance document entitled ``Guidance on SIP Elements
Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 \2\ National Ambient Air Quality Standards'' (2007
Guidance).\3\ Further guidance is provided in a September 13, 2013,
document entitled ``Guidance on Infrastructure State Implementation
Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)'' (2013
Guidance).\4\
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    \2\ PM2.5 refers to particles with an aerodynamic
diameter of less than or equal to 2.5 micrometers, oftentimes
referred to as ``fine'' particles.
    \3\ https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20071002_harnett_110(a)_sip_guidance.pdf.
    \4\ https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.
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III. What is the result of EPA's review of this SIP submission?

    Pursuant to CAA section 110(a), states must provide reasonable
notice and opportunity for public hearing for all infrastructure SIP
submissions. MPCA commenced a public comment period on June 20, 2016,
and closed the public comment period on July 20, 2016. Minnesota
received three comments, and provided a response to comments in its
submittal.
    Minnesota provided a synopsis of how its SIP meets each of the
applicable requirements in CAA sections 110(a)(2)(C),
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J) for the 1997
ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2, and 2012
PM2.5 NAAQS, as applicable. The following review evaluates
the state's submission.

A. CAA Section 110(a)(2)(C)

    States are required to include a program providing for enforcement
of all SIP measures and the regulation of construction of new or
modified stationary sources to meet new source review (NSR)
requirements under PSD and nonattainment NSR (NNSR) programs. Part C of
the CAA (sections 160-169B) addresses PSD, while part D of the CAA
(sections 171-193) addresses NNSR requirements.
    The evaluation of the state's submission addressing the
infrastructure SIP requirements of CAA section 110(a)(2)(C) covers: (i)
Enforcement of SIP measures; (ii) PSD provisions that explicitly
identify oxides of nitrogen (NOX) as a precursor to ozone in
the PSD program; (iii) identification of precursors to PM2.5
and the identification of PM2.5 and PM10 \5\
condensables in the PSD program; (iv) PM2.5 increments in
the PSD program; and, (v) greenhouse gas (GHG) permitting and the
``Tailoring Rule.'' \6\
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    \5\ PM10 refers to particles with an aerodynamic
diameter of less than or equal to 10 micrometers.
    \6\ In EPA's April 28, 2011, proposed rulemaking for
infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS,
we stated that each state's PSD program must meet applicable
requirements for evaluation of all regulated NSR pollutants in PSD
permits (see 76 FR 23757 at 23760). This view was reiterated in
EPA's August 2, 2012, proposed rulemaking for infrastructure SIPs
for the 2006 PM2.5 NAAQS (see 77 FR 45992 at 45998). In
other words, if a state lacks provisions needed to adequately
address NOx as a precursor to ozone, PM2.5 precursors,
PM2.5 and PM10 condensables, PM2.5
increments, or the Federal GHG permitting thresholds, the provisions
of CAA section 110(a)(2)(C) requiring a suitable PSD permitting
program must be considered not to be met irrespective of the NAAQS
that triggered the requirement to submit an infrastructure SIP,
including the 2012 PM2.5 NAAQS.
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Sub-Element 1: Enforcement of SIP Measures
    States are required to include a program providing for enforcement
of all SIP measures and the regulation of construction of new or
modified stationary sources to meet NSR requirements under PSD and NNSR
programs.
    In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR
41439, and 80 FR 634536, EPA determined that Minnesota has met the
enforcement of SIP measures requirements of CAA section 110(a)(2)(C)
with respect to the 1997 ozone, 1997 PM2.5, 2006
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS.
Sub-Element 2: PSD Provisions That Explicitly Identify NOX
as a Precursor to Ozone in the PSD Program
    EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects
of the 1990 Amendments Relating to New Source Review and Prevention of
Significant Deterioration as They Apply in Carbon Monoxide, Particulate
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase
2 Rule) was published on November 29, 2005 (70 FR 71612). Among other
requirements, the Phase 2 Rule obligated states to revise their PSD
programs to explicitly identify NOx as a precursor to ozone (see 70 FR
71612 at 71679, 71699-71704). This requirement was codified at 40 CFR
51.166 and 40 CFR 52.21.
    The Phase 2 Rule required that states submit SIP revisions
incorporating the requirements of the rule, including the provisions
specific to NOX as a precursor to ozone, by June 15, 2007
(see 70 FR 71612 at 71683).
    On September 26, 2017 (82 FR 44734), EPA approved into the
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD
rules fully satisfy the requirements of CAA section 110(a)(2)(C)
regarding NOX as a precursor to ozone. EPA therefore
proposes that Minnesota has met this set of infrastructure SIP
requirements of CAA section 110(a)(2)(C) with respect to the 1997
ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2, and 2012
PM2.5 NAAQS.
Sub-Element 3: Identification of Precursors to PM2.5 and the
Identification of PM2.5 and PM10 Condensables in
the PSD Program
    On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule).
The 2008 NSR Rule finalized several new requirements for SIPs to
address sources

that emit direct PM2.5 and other pollutants that contribute
to secondary PM2.5 formation. One of these requirements is
for NSR permits to address pollutants responsible for the secondary
formation of PM2.5, otherwise known as precursors. In this
rule, EPA identified precursors to PM2.5 for the PSD program
to be SO2 and NOX (unless the state demonstrates
to the Administrator's satisfaction or EPA demonstrates that
NOX emissions in an area are not a significant contributor
to that area's ambient PM2.5 concentrations). The 2008 NSR
Rule also specifies that volatile organic compounds (VOCs) are not
considered to be precursors to PM2.5 in the PSD program
unless the state demonstrates to the Administrator's satisfaction or
EPA demonstrates that emissions of VOCs in an area are significant
contributors to that area's ambient PM2.5 concentrations.
    The explicit references to SO2, NOX, and VOCs
as they pertain to secondary PM2.5 formation are codified at
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of
identifying pollutants that are precursors to PM2.5, the
2008 NSR Rule also required states to revise the definition of
``significant'' as it relates to a net emissions increase or the
potential of a source to emit pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for
PM2.5 to mean the following emissions rates: 10 tons per
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40
tpy of NOX (unless the state demonstrates to the
Administrator's satisfaction or EPA demonstrates that NOX
emissions in an area are not a significant contributor to that area's
ambient PM2.5 concentrations). The deadline for states to
submit SIP revisions to their PSD programs incorporating these changes
was May 16, 2011 (see 73 FR 28321 at 28341).\7\
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    \7\ EPA notes that on January 4, 2013, the U.S. Court of Appeals
for the D.C. Circuit, in Natural Resources Defense Council v. EPA,
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008
NSR Rule in accordance with the CAA's requirements for
PM10 nonattainment areas (Title I, Part D, subpart 4),
and not the general requirements for nonattainment areas under
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250).
As the subpart 4 provisions apply only to nonattainment areas, EPA
does not consider the portions of the 2008 NSR Rule that address
requirements for PM2.5 attainment and unclassifiable
areas to be affected by the court's opinion. Moreover, EPA does not
anticipate the need to revise any PSD requirements promulgated by
the 2008 NSR Rule in order to comply with the court's decision.
Accordingly, EPA's approval of Minnesota's infrastructure SIP as to
elements relating to PSD, provided at CAA sections 110(a)(2)(C),
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), with
respect to the PSD requirements promulgated by the 2008 NSR Rule,
does not conflict with the court's opinion. The Court's decision
with respect to the nonattainment NSR requirements promulgated by
the 2008 NSR Rule also does not affect EPA's action on the present
infrastructure action. EPA interprets the CAA to exclude
nonattainment area requirements, including requirements associated
with a nonattainment NSR program, from infrastructure SIP
submissions due three years after adoption or revision of a NAAQS.
Instead, these elements are typically referred to as nonattainment
SIP or attainment plan elements, which would be due by the dates
statutorily prescribed under subpart 2 through 5 under part D,
extending as far as 10 years following designations for some
elements.
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    The 2008 NSR Rule did not require states to immediately account for
gases that could condense to form particulate matter, known as
condensables, in PM2.5 and PM10 emission limits
in NSR permits. Instead, EPA determined that states had to account for
PM2.5 and PM10 condensables for applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10 in PSD permits beginning on or
after January 1, 2011. This requirement is codified in 40 CFR
51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states'
PSD programs incorporating the inclusion of condensables were required
to be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341).
    On September 26, 2017 (82 FR 44734), EPA approved into the
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD
rules fully satisfy the requirements of CAA section 110(a)(2)(C)
regarding identification of precursors to PM2.5 and the
identification of PM2.5 and PM10 condensables.
EPA therefore proposes that Minnesota has met this set of
infrastructure SIP requirements of CAA section 110(a)(2)(C) with
respect to the 1997 ozone, 1997 PM2.5, 2006
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS.
Sub-Element 4: PM2.5 Increments in the PSD Program
    On October 20, 2010 (75 FR 64864), EPA issued the final rule on the
``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)''
(2010 NSR Rule). This rule established several components for making
PSD permitting determinations for PM2.5, including a system
of ``increments'' which is the mechanism used to estimate significant
deterioration of ambient air quality for a pollutant. These increments
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included
in the table below.

Table 1--PM2.5 Increments Established by the 2010 NSR Rule in Micrograms
                             per Cubic Meter
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                                              Annual
                                            arithmetic      24-hour max
                                               mean
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Class I.................................               1               2
Class II................................               4               9
Class III...............................               8              18
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    The 2010 NSR Rule also established a new ``major source baseline
date'' for PM2.5 as October 20, 2010, and a new trigger date
for PM2.5 as October 20, 2011. These revisions are codified
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR
52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule
revised the definition of ``baseline area'' to include a level of
significance of 0.3 micrograms per cubic meter, annual average, for
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i)
and 40 CFR 52.21(b)(15)(i).
    On September 26, 2017 (82 FR 44734), EPA approved into the
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD
rules fully satisfy the requirements of CAA section 110(a)(2)(C)
regarding PM2.5 increments. EPA therefore proposes that
Minnesota has met this set of infrastructure SIP requirements of CAA
section 110(a)(2)(C) with respect to the 1997 ozone, 1997
PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

Sub-Element 5: GHG Permitting and the ``Tailoring Rule''

    With respect to CAA sections 110(a)(2)(C) and 110(a)(2)(J), EPA
interprets the CAA to require each state to make an infrastructure SIP
submission for a new or revised NAAQS that demonstrates that the air
agency has a complete PSD permitting program meeting the current
requirements for all regulated NSR pollutants. The requirements of CAA
section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the
air agency has a complete PSD permitting program correctly addressing
all regulated NSR pollutants. Minnesota has shown that it currently has
a PSD program in place that covers all regulated NSR pollutants,
including GHGs.
    On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not
treat GHGs as an air pollutant for purposes of determining whether a
source is a major source required to obtain a PSD permit. The Court
also said that the EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs,
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas
Tailoring Rule, but not the regulations that implement Step 1 of that
rule. Coalition for Responsible Regulation, Inc. v. EPA, Nos. 09-
1322,10-073,10-1092, and 10-1167 (D.C. Cir., April 10, 2015) (Amended
Judgement). Step 1 of the Tailoring Rule covers sources that are
required to obtain a PSD permit based on emissions of pollutants other
than GHGs. Step 2 applied to sources that emitted only GHGs above the
thresholds triggering the requirement to obtain a PSD permit. The
amended judgment preserves, without the need for additional rulemaking
by the EPA, the application of the BACT requirement to GHG emissions
from Step 1 or ``anyway'' sources. With respect to Step 2 sources, the
D.C. Circuit's amended judgment vacated the regulations at issue in the
litigation, including 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v), ``to
the extent they require a stationary source to obtain a PSD permit if
greenhouse gases are the only pollutant (i) that the source emits or
has the potential to emit above the applicable major source thresholds,
or (ii) for which there is a significant emission increase from a
modification . . . .'' Id.
    In light of the Supreme Court opinion and subsequent D.C. Circuit
judgement, EPA took steps to revise Federal PSD rules to be consistent
with these court decisions. On May 7, 2015 (80 FR 26183), EPA issued a
final rule that narrowly amended the permit rescission provisions in
the Federal PSD regulations, and on August 19, 2015 (80 FR 50199), EPA
issued a final rule that removed several provisions of the PSD and
title V permitting regulations that were originally promulgated as part
of the 2010 Tailoring Rule and that were vacated by the D.C. Circuit in
its April 10, 2015 judgment.
    On September 26, 2017 (82 FR 44734), EPA approved into the
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as
amended'' the Federal PSD rules at 40 CFR 52.21. Because EPA's May 7,
2015, and August 19, 2015, amendments to 40 CFR 52.21 included updates
to bring the Federal rules into alignment with the Supreme Court
opinion and the D.C. Circuit's amended judgement, Minnesota is
currently operating a PSD program that is consistent with both court
decisions.
    EPA is proposing that Minnesota's SIP is sufficient to satisfy CAA
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) with
respect to GHGs. This is because the PSD permitting program approved by
EPA into the SIP on September 26, 2017, continues to require that PSD
permits issued to ``anyway sources'' contain limitations on GHG
emissions based on the application of BACT.
    For the purposes of infrastructure SIPs, EPA reiterates that NSR
reform regulations are not within the scope of these actions.
Therefore, we are not taking action on existing NSR reform regulations
for Minnesota.
    Certain requirements of CAA section 110(a)(2)(C) overlap with
requirements of CAA sections 110(a)(2)(D)(i)(II) and 110(a)(2)(J).
These links will be discussed in the appropriate areas below.
B. CAA Section 110(a)(2)(D)(i)(II)
    CAA section 110(a)(2)(D)(i)(II) requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one state
from interfering with measures required to prevent significant
deterioration of air quality or to protect visibility in another state.
    EPA notes that Minnesota's satisfaction of the applicable
infrastructure SIP PSD requirements has been detailed in the discussion
of CAA section 110(a)(2)(C). EPA further notes that the proposed
actions in that discussion related to PSD are consistent with the
proposed actions related to PSD for CAA section 110(a)(2)(D)(i)(II),
and are reiterated below.
    EPA previously approved revisions to Minnesota's SIP to meet
certain requirements obligated by the Phase 2 Rule and the 2008 NSR
Rule. These revisions included provisions that: Explicitly identify
NOX as a precursor to ozone; explicitly identify
SO2 and NOX as precursors to PM2.5;
regulate condensable PM2.5 and PM10 in
applicability determinations; and, establish emissions limits. EPA also
previously approved revisions to Minnesota's SIP that incorporate the
PM2.5 increments and the associated implementation
regulations, including the major source baseline date, trigger date,
and level of significance for PM2.5, as required by the 2010
NSR Rule. Therefore, EPA is proposing that Minnesota's SIP contains
provisions that adequately address the infrastructure requirements for
the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb,
2008 ozone, 2010 NO2, 2010 SO2, and 2012
PM2.5 NAAQS.
    States also have an obligation to ensure that sources located in
nonattainment areas do not interfere with a neighboring state's PSD
program. This requirement can be satisfied through an NNSR program
consistent with the CAA that addresses any pollutants for which there
is a designated nonattainment area within the state.
    Minnesota's EPA-approved NNSR regulations are contained in Minn. R.
7007, and are consistent with 40 CFR 51.165 (60 FR 27411, May 24,
1995). Therefore, EPA proposes that Minnesota has met all of the
applicable PSD requirements for the 1997 ozone, 1997 PM2.5,
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS related to CAA section
110(a)(2)(D)(i)(II).

C. CAA Section 110(a)(2)(D)(ii)

    CAA section 110(a)(2)(D)(ii) requires that each SIP contain
adequate provisions requiring compliance with the applicable
requirements of CAA sections 126 and 115 (relating to interstate and
international pollution abatement, respectively).
    CAA section 126(a) requires new or modified sources to notify
neighboring

states of potential impacts from the source. The statute does not
specify the method by which the source should provide the notification.
States with SIP-approved PSD programs must have a provision requiring
such notification by new or modified sources. A lack of such a
requirement in state rules would be grounds for disapproval of this
element. Minnesota has provisions in its EPA-approved PSD program in
Minn. R. 7007.3000 requiring new or modified sources to notify
neighboring states of potential negative air quality impacts, and has
referenced this program as having adequate provisions to meet the
requirements of CAA section 126(a). EPA is proposing that Minnesota has
met the infrastructure SIP requirements of CAA section 126(a) with
respect to the 1997 ozone, 1997 PM2.5, 2006
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS. Minnesota does not
have any obligations under any other subsection of CAA section 126, nor
does it have any pending obligations under CAA section 115. EPA,
therefore, is proposing that Minnesota has met all applicable
infrastructure SIP requirements of CAA section 110(a)(2)(D)(ii).

D. CAA Section 110(a)(2)(J)

    The evaluation of Minnesota's submission addressing the
infrastructure SIP requirements of CAA section 110(a)(2)(J) covers: (i)
Consultation with government officials; (ii) public notification; (iii)
PSD; and, (iv) visibility protection.
Sub-Element 1: Consultation With Government Officials
    States must provide a process for consultation with local
governments and Federal Land Managers (FLMs) carrying out NAAQS
implementation requirements.
    In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR
41442, and 80 FR 63450, EPA determined that Minnesota has met the
consultation with government officials requirements of CAA section
110(a)(2)(J) with respect to the 1997 ozone, 1997 PM2.5,
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS.
Sub-Element 2: Public Notification
    CAA section 110(a)(2)(J) also requires states to notify the public
if NAAQS are exceeded in an area and to enhance public awareness of
measures that can be taken to prevent exceedances.
    In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR
41442, and 80 FR 63450, EPA determined that Minnesota has met the
public notification requirements of CAA section 110(a)(2)(J) with
respect to the 1997 ozone, 1997 PM2.5, 2006
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS.
Sub-Element 3: PSD
    States must meet applicable requirements of CAA section
110(a)(2)(C) related to PSD. Minnesota's PSD program in the context of
infrastructure SIPs has already been discussed above in the paragraphs
addressing CAA sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA
notes that the proposed actions for those CAA sections are consistent
with the proposed actions for this portion of CAA section 110(a)(2)(J).
    Therefore, EPA proposes that Minnesota has met all of the
infrastructure SIP requirements for PSD associated with CAA section
110(a)(2)(D)(J) for the 1997 ozone, 1997 PM2.5, 2006
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2, and 2012 PM2.5 NAAQS.
Sub-Element 4: Visibility Protection
    With regard to the applicable requirements for visibility
protection, states are subject to visibility and regional haze program
requirements under part C of the CAA (which includes CAA sections 169A
and 169B). In the event of the establishment of a new NAAQS, however,
the visibility and regional haze program requirements under part C do
not change. Therefore, no new visibility obligation is ``triggered''
under CAA section 110(a)(2)(J) when a new NAAQS becomes effective. In
other words, the visibility protection requirements of CAA section
110(a)(2)(J) are not germane to infrastructure SIPs.

IV. What action is EPA taking?

    EPA is proposing to approve a submission from Minnesota certifying
that its current SIP is sufficient to meet the infrastructure SIP
requirements relating to PSD, at CAA sections 110(a)(2)(C),
110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997
ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2, and 2012
PM2.5 NAAQS.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: May 4, 2018.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2018-10458 Filed 5-16-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 100 (Friday, May 22, 2020)]
[Notices]
[Page 31178]
[FR Doc No: 2020-11118]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 14635-001]

Village of Gouverneur, New York; Notice of Application Accepted
for Filing and Soliciting Motions To Intervene and Protests

    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection.
    a. Type of Application: Original Minor License.
    b. Project No.: 14635-001.
    c. Date filed: September 20, 2019.
    d. Applicant: Village of Gouverneur, New York.
    e. Name of Project: Gouverneur Hydroelectric Project.
    f. Location: On the Oswegatchie River, in the Village of
Gouverneur, St. Lawrence County, New York. The project does not occupy
any federal land.
    g. Filed Pursuant to: Federal Power Act 16 U.S.C. 791(a)-825(r).
    h. Applicant Contact: Ronald P. McDougall, Mayor, Village of
Gouverneur, 33 Clinton Street, Gouverneur, NY 13642;<PHONE_NUMBER>.
    i. FERC Contact: Jody Callihan,<PHONE_NUMBER> or
<EMAIL_ADDRESS>    j. Deadline for filing motions to intervene and protests: 60 days
from the issuance date of this notice.
    The Commission strongly encourages electronic filing. Please file
motions to intervene and protests using the Commission's eFiling system
at http://www.ferc.gov/docs-filing/efiling.asp. For assistance, please
contact FERC Online Support at<EMAIL_ADDRESS>(866) 208-
3676 (toll free), or<PHONE_NUMBER> (TTY).
    The Commission's Rules of Practice require all intervenors filing
documents with the Commission to serve a copy of that document on each
person on the official service list for the project. Further, if an
intervenor files comments or documents with the Commission relating to
the merits of an issue that may affect the responsibilities of a
particular resource agency, they must also serve a copy of the document
on that resource agency.
    k. This application has been accepted for filing but is not ready
for environmental analysis.
    l. The Gouverneur Project consists of the following existing
facilities: (1) A 250-foot-long concrete gravity dam, including two
bridge piers, which separate the dam into three spillways that range in
crest elevation from 403.4 to 403.7 feet North American Vertical Datum
of 1988 (NAVD88); (2) an impoundment with a surface area of 109 acres
at the normal pool elevation of 403.8 feet NAVD88; (3) a concrete
intake structure containing two trash rack bays separated by a 2-foot-
wide center pier; (4) a 20-foot-long by 36-foot-wide powerhouse that is
integral with the dam and contains two vertical bulb turbines rated at
100 kilowatts each and two 100-kilovolt-ampere Westinghouse generators
with a power factor of 0.8; and (5) appurtenant facilities.
    The Village proposes to continue operating the project in a run-of-
river mode. In addition, the Village proposes to release a minimum flow
of 110 cubic feet per second over the project's spillways. The project
generated an annual average of 1,195 megawatt-hours between 2014 and
2017.
    m. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested individuals an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (www.ferc.gov) using the
eLibrary link. At this time, the Commission has suspended access to the
Commission's Public Access Room due to the proclamation declaring a
National Emergency concerning the Novel Coronavirus Disease (COVID-19),
issued by the President on March 13, 2020. For assistance, contact FERC
at<EMAIL_ADDRESS>or call toll-free,<PHONE_NUMBER> or TTY,
(202) 502-8659.
    You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances
related to this or other pending projects. For assistance, contact FERC
Online Support.
    n. Any qualified applicant desiring to file a competing application
must submit to the Commission, on or before the specified intervention
deadline date, a competing development application, or a notice of
intent to file such an application. Submission of a timely notice of
intent allows an interested person to file the competing development
application no later than 120 days after the specified intervention
deadline date. Applications for preliminary permits will not be
accepted in response to this notice.
    A notice of intent must specify the exact name, business address,
and telephone number of the prospective applicant, and must include an
unequivocal statement of intent to submit a development application. A
notice of intent must be served on the applicant(s) named in this
public notice.
    Anyone may submit comments, a protest, or a motion to intervene in
accordance with the requirements of Rules of Practice and Procedure, 18
CFR 385.210, .211, and .214. In determining the appropriate action to
take, the Commission will consider all protests or other comments
filed, but only those who file a motion to intervene in accordance with
the Commission's Rules may become a party to the proceeding. Any
comments, protests, or motions to intervene must be received on or
before the specified comment date for the particular application.
    When the application is ready for environmental analysis, the
Commission will issue a public notice requesting comments,
recommendations, terms and conditions, or prescriptions.
    All filings must (1) bear in all capital letters the title PROTEST
or MOTION TO INTERVENE, NOTICE OF INTENT TO FILE COMPETING APPLICATION,
or COMPETING APPLICATION; (2) set forth in the heading the name of the
applicant and the project number of the application to which the filing
responds; (3) furnish the name, address, and telephone number of the
person protesting or intervening; and (4) otherwise comply with the
requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain
copies of the application directly from the applicant. A copy of any
protest or motion to intervene must be served upon each representative
of the applicant specified in the particular application.
    o. Procedural schedule: The application will be processed according
to the following schedule. Revisions to the schedule will be made as
appropriate.

------------------------------------------------------------------------
               Milestone                           Target date
------------------------------------------------------------------------
Issue Additional Information Request...  May 2020.
Responses to Additional Information      June 2020.
 Request.
Issue Scoping Document 1 for comments..  June 2020.
Comments on Scoping Document 1.........  July 2020.
Issue Notice of Ready for Environmental  July 2020.
 Analysis.
Issue Scoping Document 2...............  September 2020.
Commission issues EA...................  January 2021.
Comments on EA.........................  February 2021.
------------------------------------------------------------------------

    Dated: May 18, 2020.
Kimberly D. Bose,
 Secretary.
[FR Doc. 2020-11118 Filed 5-21-20; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register Volume 88, Number 173 (Friday, September 8, 2023)]
[Rules and Regulations]
[Pages 61964-61969]
[FR Doc No: 2023-18929]

=======================================================================
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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 120

[EPA-HQ-OW-2023-0346; FRL-11132-01-OW]
RIN 2040-AG32

Revised Definition of ``Waters of the United States''; Conforming

AGENCY: Department of the Army, Corps of Engineers, Department of
Defense; and Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) and the Department
of the Army (``the agencies'') are amending the Code of Federal
Regulations (CFR) to conform the definition of ``waters of the United
States'' to a 2023 Supreme Court decision. This conforming rule amends
the provisions of the agencies' definition of ``waters of the United
States'' that are invalid under the Supreme Court's interpretation of
the Clean Water Act in the 2023 decision.

DATES: This final rule is effective on September 8, 2023.

ADDRESSES: The agencies have established a docket for this action under
Docket ID No. EPA-HQ-OW-2023-0346. All documents in the docket are
listed on the https://www.regulations.gov/ website. Although listed in
the index, some information is not publicly available, e.g.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Whitney Beck, Oceans, Wetlands and
Communities Division, Office of Water (4504T), Environmental Protection
Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone
number:<PHONE_NUMBER>; email address: [email protected], and Stacey
Jensen, Office of the Assistant Secretary of the Army for Civil Works,
Department of the Army, 108 Army Pentagon, Washington, DC 20310-0104;
telephone number:<PHONE_NUMBER>; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Why are the agencies issuing this final rule?

    This action amends Code of Federal Regulations (CFR) provisions
promulgated in ``Revised Definition of `Waters of the United States,'
'' 88 FR 3004 (January 18, 2023) (``2023 Rule''), to conform to the
2023 Supreme Court decision in Sackett v. EPA, 598 U.S._, 143 S. Ct.
1322 (2023) (``Sackett''). The Administrative Procedure Act (APA)
provides that, when an agency for good cause finds that public notice
and comment procedures are impracticable, unnecessary, or contrary to
the public interest, the agency may issue a rule without providing
notice and an opportunity for public comment. 5 U.S.C. 553(b)(B). The
Environmental Protection Agency (EPA) and the Department of the Army
(``the agencies'') have determined that there is good cause under APA
section 553(b)(B) to issue this final rule without prior proposal and
opportunity for comment because such notice and opportunity for comment
is unnecessary. Certain provisions of the 2023 Rule are invalid under
the Supreme Court's interpretation of the Clean Water Act in Sackett.
The effect of the Sackett decision was to render these provisions
immediately inconsistent with the Supreme Court's interpretation of the
Clean Water Act. Consistent with the agencies' previously stated intent
regarding the severability of the 2023 Rule in the event that
provisions of that rule were held invalid, see 88 FR 3135, the agencies
are conforming the 2023 Rule's definition of the term ``waters of the
United States'' to the Supreme Court's decision. Specifically, the
agencies are revising 40 CFR 120.2(a)(1)(iii), (a)(3) through (5), and
(c)(2) and (6), and 33 CFR 328.3(a)(1)(iii), (a)(3) through (5), and
(c)(2) and (6) to amend aspects of the definition as needed to conform
to the Supreme Court's interpretation of the Clean Water Act in
Sackett. Because the sole purpose of this rule is to amend these
specific provisions of the 2023

Rule to conform with Sackett, and such conforming amendments do not
involve the exercise of the agencies' discretion, providing advance
public notice and seeking comment is unnecessary. A notice and comment
process would neither provide new information to the public nor inform
any agency decision-making regarding the aspects of the regulations
defining ``waters of the United States'' that are invalid as
inconsistent with the Clean Water Act under Sackett.
    For similar reasons, there is good cause under the APA to make this
rule immediately effective, 5 U.S.C. 553(d)(3), because this rule does
not impose any burdens on the regulated community; rather, it merely
conforms the 2023 Rule to the Supreme Court's decision in Sackett by
amending the provisions of the 2023 Rule that are invalid under the
Supreme Court's interpretation of the Clean Water Act. Making the rule
immediately effective will also provide more clarity and certainty to
the regulated community and the public following the Sackett decision.
Many States and industry groups challenging the 2023 Rule have
advocated in litigation for quick action by the agencies in light of
Sackett, citing the need for regulatory certainty and less delay in
processing approved jurisdictional determinations and certain Clean
Water Act permits. A delayed effective date for amendments to
regulations defining ``waters of the United States'' to conform to
Sackett would prolong confusion and potentially result in project
delays for prospective permittees that seek approved jurisdictional
determinations to evaluate whether their projects will result in
discharges to ``waters of the United States.'' Making the rule
immediately effective also avoids delaying provision of clarity to aid
States and authorized Tribes administering Clean Water Act permitting
programs and to members of the general public who seek to understand
which waters are subject to the Clean Water Act's requirements. It is
thus appropriate for the agencies to revise the affected provisions in
40 CFR 120.2 and 33 CFR 328.3 to conform to Sackett as quickly as
possible and to make those revisions immediately effective.
    In 1972, Congress enacted the Federal Water Pollution Control Act
Amendments of 1972, Public Law 92-500, 86 Stat. 816, as amended, 33
U.S.C. 1251 et seq. (``Clean Water Act'' or ``Act''). Central to the
framework and protections provided by the Clean Water Act is the term
``navigable waters,'' defined in the Act as ``the waters of the United
States, including the territorial seas.'' 33 U.S.C. 1362(7). On January
18, 2023, the final ``Revised Definition of `Waters of the United
States' '' rule was published in the Federal Register, and the rule
took effect on March 20, 2023.\1\
---------------------------------------------------------------------------

    \1\ As a result of litigation, the 2023 Rule is enjoined in 27
States as of the date this final rule was signed. See Texas v. EPA,
Nos. 23-00017 & 23-00020 (S.D. Tex. March 19, 2023); West Virginia
v. EPA, No. 23-00032 (D.N.D. April 12, 2023); Commonwealth of
Kentucky v. EPA, Nos. 23-5343/5345 (6th Cir. May 10, 2023).
---------------------------------------------------------------------------

    In 2006, the Supreme Court addressed the scope of ``waters of the
United States'' in Rapanos v. United States, 547 U.S. 715 (2006)
(``Rapanos''). As the Court in Sackett noted, no position in Rapanos
commanded a majority of the Court. Sackett, 143 S. Ct. at 1344. In
Rapanos, all nine members of the Court agreed that the term ``waters of
the United States'' encompasses some waters that are not navigable in
the traditional sense. Rapanos, 547 U.S. at 731 (Scalia, J., plurality
opinion) (``We have twice stated that the meaning of `navigable waters'
in the Act is broader than the traditional understanding of that term,
SWANCC, 531 U.S. at 167; Riverside Bayview, 474 U.S. at 133.''). A
four-Justice plurality in Rapanos interpreted the term ``waters of the
United States'' as covering ``relatively permanent, standing or
continuously flowing bodies of water,'' id. at 739, that are connected
to traditional navigable waters, id. at 742, as well as wetlands with a
``continuous surface connection'' to such waterbodies, id. (Scalia, J.,
plurality opinion). The Rapanos plurality noted that its reference to
``relatively permanent'' waters did ``not necessarily exclude streams,
rivers, or lakes that might dry up in extraordinary circumstances, such
as drought,'' or ``seasonal rivers, which contain continuous flow
during some months of the year but no flow during dry months.'' Id. at
732 n.5 (emphasis in original). Justice Kennedy's concurring opinion
took a different approach, concluding that ``to constitute ```navigable
waters''' under the Act, a water or wetland must possess a `significant
nexus' to waters that are or were navigable in fact or that could
reasonably be so made.'' Id. at 759. He concluded that wetlands possess
the requisite significant nexus if the wetlands ``either alone or in
combination with similarly situated [wet]lands in the region,
significantly affect the chemical, physical, and biological integrity
of other covered waters more readily understood as `navigable.' '' Id.
at 780. The four dissenting Justices in Rapanos would have deferred to
the agencies and also concluded that waters would be jurisdictional
under ``either the plurality's or Justice Kennedy's test.'' Id. at 810
& n.14 (Stevens, J., dissenting).
    The 2023 Rule incorporated the two jurisdictional standards from
Rapanos into the definition of the term ``waters of the United
States.'' First, under that rule, the ``relatively permanent standard''
refers to the test to identify: relatively permanent, standing or
continuously flowing tributaries connected to traditional navigable
waters, the territorial seas, or interstate waters; relatively
permanent, standing or continuously flowing additional waters with a
continuous surface connection to such relatively permanent waters or to
traditional navigable waters, the territorial seas, or interstate
waters; and, adjacent wetlands and certain impoundments with a
continuous surface connection to such relatively permanent waters or to
traditional navigable waters, the territorial seas, or interstate
waters. Second, the ``significant nexus standard'' under the 2023 Rule
refers to the test to identify waters that, either alone or in
combination with similarly situated waters in the region, significantly
affect the chemical, physical, or biological integrity of traditional
navigable waters, the territorial seas, or interstate waters. The
regulatory text also defined ``significantly affect'' for purposes of
the significant nexus standard. 88 FR 3006. Under the 2023 Rule, waters
were jurisdictional if they met either standard.
    The 2023 Rule also defined the term ``adjacent'' with no changes
from the agencies' longstanding regulatory definition. ``Adjacent'' was
defined as ``bordering, contiguous, or neighboring.'' 88 FR 3116-17.
Wetlands separated from other ``waters of the United States'' by man-
made dikes or barriers, natural river berms, beach dunes and the like
were defined as ``adjacent'' wetlands. Id.
    On May 25, 2023, the Supreme Court decided Sackett v. EPA. While
the 2023 Rule was not directly before the Court, the Court considered
the jurisdictional standards set forth in that rule. The enterprise of
the 2023 Rule--to define ``waters of the United States''--was the same
as the Supreme Court's enterprise in Sackett: ``to identify with
greater clarity what the Act means by `the waters of the United
States.' '' 143 S. Ct. at 1329; see also id. at 1331 (``The meaning of
[33 U.S.C. 1362(7)] is the persistent problem that we must address.'').
The Supreme Court recognized the agencies' definition and utilization
of ``adjacent'' and

``significant nexus'' ``as set out in [the agencies'] most recent
rule,'' the 2023 Rule, 143 S. Ct. at 1335, 1341, but concluded that the
significant nexus standard was ``inconsistent with the text and
structure of the [Clean Water Act].'' Id. at 1341. Instead, the Court
``conclude[d] that the Rapanos plurality was correct: the [Clean Water
Act]'s use of `waters' encompasses `only those relatively permanent,
standing or continuously flowing bodies of water ``forming
geographic[al] features'' that are described in ordinary parlance as
``streams, oceans, rivers, and lakes.'' ' '' Id. at 1336 (quoting
Rapanos, 547 U.S. at 739). The Court also ``agree[d] with [the
plurality's] formulation of when wetlands are part of `the waters of
the United States,' '' id. at 1340-41: ``when wetlands have `a
continuous surface connection to bodies that are ``waters of the United
States'' in their own right, so that there is no clear demarcation
between ``waters'' and wetlands.' '' Id. at 1344 (citing Rapanos, 547
U.S. at 742, 755). Thus, the Supreme Court concluded that ``this
interpretation''--i.e., the interpretation of adjacent wetlands as
``waters of the United States'' set out in the 2023 Rule--``is
inconsistent with the text and structure of the CWA'' insofar as it
incorporated the ``significant nexus'' test and defined ``adjacent''
other than as the Rapanos plurality defined the term. Id. at 1341.
    The agencies are revising the 2023 Rule to remove the significant
nexus standard and to amend its definition of ``adjacent'' as these
provisions are invalid under the Supreme Court's interpretation of the
Clean Water Act in Sackett. See section II of this preamble for the
specific amendments. Under the decision in Sackett, waters are not
jurisdictional under the Clean Water Act based on the significant nexus
standard. In addition, under the decision in Sackett, wetlands are not
defined as ``adjacent'' or jurisdictional under the Clean Water Act
solely because they are ``bordering, contiguous, or neighboring . . .
[or] separated from other `waters of the United States' by man-made
dikes or barriers, natural river berms, beach dunes and the like.''
Therefore, under this conforming rule, waters cannot be found to be
jurisdictional because they meet the significant nexus standard; nor
can wetlands be found to be jurisdictional based on the definition of
``adjacent'' codified in the 2023 Rule. Furthermore, as a result of the
decision in Sackett invalidating the significant nexus standard, the
provision for assessment of streams and wetlands under the additional
waters provision of paragraph (a)(5) is no longer valid as any
jurisdictional streams and wetlands are covered by paragraphs (a)(1)
through (4) of the 2023 Rule.\2\
---------------------------------------------------------------------------

    \2\ Lakes and ponds, however, may still be jurisdictional under
paragraph (a)(5) if they do not fall within paragraphs (a)(1)
through (3) of the 2023 Rule (for example, if they are not
tributaries connected to waters identified in paragraph (a)(1) or
(2)) and they are relatively permanent, standing or continuously
flowing bodies of water with a continuous surface connection to the
waters identified in paragraph (a)(1) or (3).
---------------------------------------------------------------------------

    Finally, the agencies are removing ``interstate wetlands'' from the
2023 Rule to conform with the decision in Sackett. The Supreme Court in
Sackett examined the Clean Water Act and its statutory history and
found the predecessor statute to the Clean Water Act covered and
defined ``interstate waters'' as ``all rivers, lakes, and other waters
that flow across or form a part of State boundaries.'' Sackett at 1337
(citing 33 U.S.C. 1160(a), 1173(e) (1970 ed.) (emphasis in original)).
The Court concluded that the use of the term ``waters'' refers to such
``open waters'' and not wetlands. Id. As a result, under Sackett, the
provision authorizing wetlands to be jurisdictional simply because they
are interstate is invalid.
    The agencies will continue to interpret the remainder of the
definition of ``waters of the United States'' in the 2023 Rule
consistent with the Sackett decision. And it is both reasonable and
appropriate for the agencies to promulgate this rule in response to a
significant decision of the Supreme Court and, to provide
administrative guidance to address other issues that may arise outside
this limited rule. See County of Maui, Hawaii v. Hawaii Wildlife Fund,
140 S. Ct. 1462, 1476 (2020) (``EPA, too, can provide administrative
guidance (within statutory boundaries) in numerous ways, including
through, for example, grants of individual permits, promulgation of
general permits, or the development of general rules.''). The agencies
have a wide range of available approaches to address such issues,
including: approved jurisdictional determinations and Clean Water Act
permits (both of which are final agency actions subject to judicial
review); guidance; notice and comment rulemaking; and, agency forms and
training materials. The agencies intend to hold stakeholder meetings to
ensure the public has an opportunity to provide the agencies with input
on other issues they would like the agencies to address. The agencies
are also committed to taking particular actions that have been
requested by stakeholders to improve implementation of the definition
of ``waters of the United States.'' For example, the agencies are
working to improve coordination among Federal agencies through
coordination memoranda and trainings. The agencies are also developing
regionally-specific tools to facilitate implementation of the
definition of ``waters of the United States.'' The agencies will
continue to provide trainings to Tribes, States, and the public as
appropriate to promote clarity and consistency. The agencies will
continue to post materials and outreach opportunities to EPA's website
at https://www.epa.gov/wotus.

II. Which provisions are amended?

    This final rule amends the following provisions in the 2023 Rule:
40 CFR 120.2(a)(1)(iii), (a)(3) through (5), (c)(2) and (6), and 33 CFR
328.3(a)(1)(iii), (a)(3) through (5), (c)(2) and (6). A list of these
revisions is provided below.
     40 CFR 120.2(a)(1)(iii) and 33 CFR 328.3(a)(1)(iii):
Removed the phrase ``including interstate wetlands'' from this
provision. Made conforming edits to the regulatory text.
     40 CFR 120.2(a)(3) and 33 CFR 328.3(a)(3): Removed the
significant nexus standard from the tributaries provision. Made
conforming edits to the regulatory text.
     40 CFR 120.2(a)(4) and 33 CFR 328.3(a)(4): Removed the
significant nexus standard from the adjacent wetlands provision. Made
conforming edits to the regulatory text.
     40 CFR 120.2(a)(5) and 33 CFR 328.3(a)(5): Removed the
significant nexus standard and streams and wetlands from the provision
for intrastate lakes and ponds, streams, or wetlands not otherwise
identified in the definition. Made conforming edits to the regulatory
text.
     40 CFR 120.2(c)(2) and 33 CFR 328.3(c)(2): Revised the
definition of ``adjacent''. Note that the agencies recognize that
revising the definition of adjacent creates redundancy in 40 CFR
120.2(a)(4) and 33 CFR 328.3(a)(4), which already include the
requirement for a ``continuous surface connection,'' but deleting
existing regulatory text to reduce redundancy is outside the scope of
the agencies' determination in this rule that there is good cause under
APA section 553(b)(B) to issue this final rule without prior proposal
and opportunity for comment.
     40 CFR 120.2(c)(6) and 33 CFR 328.3(c)(6): Removed the
term ``significantly affect'' and its definition in its entirety.

III. Severability

    The purpose of this section is to clarify the agencies' intent with
respect to the severability of provisions of this

rule and the 2023 Rule as amended by this final rule in the event of
litigation. In the event of a stay or invalidation of any part of this
rule, the agencies' intent is to preserve the remaining portions of the
rule to the fullest possible extent. Further, if any part of the 2023
Rule as amended by this rule is stayed or invalidated, the agencies'
intent is to preserve its remaining portions to the fullest possible
extent. The agencies explained in the 2023 Rule that it was carefully
crafted so that each provision or element of the rule is capable of
operating independently. 88 FR 3135. None of the amendments made in
this rule affects the 2023 Rule's severability or undermines the
ability of each part of this rule or the remaining parts of the 2023
Rule to operate independently.
    The exclusive purpose of the 2023 Rule was to define ``waters of
the United States,'' and this rule simply conforms that definition to
Sackett. ``Waters of the United States'' is defined in paragraphs
(a)(1) through (5), subject to the exclusions in paragraph (b), and
using terms defined in paragraph (c). The categories in paragraphs
(a)(1) through (5) are disjunctive, and while they may overlap, no one
category (or subcategory) depends on another. The modifications to the
2023 Rule in this rule do not alter those basic features of the
regulatory text. Therefore, if any provision or element of this rule or
of the 2023 Rule as amended by this rule is determined by judicial
review or operation of law to be invalid, that partial invalidation
will not render the remainder of this rule or the 2023 Rule, as
amended, invalid. Further, if the application of any portion of this
rule or the 2023 Rule, as amended by this rule, to a particular
circumstance is determined to be invalid, the agencies intend that this
rule and the 2023 Rule, as amended, remain applicable to all other
circumstances.
    For example, if paragraph (c)(2), which contains the revised
definition of ``adjacent,'' were deemed invalid, it would affect
implementation of paragraph (a)(4), which addresses ``adjacent
wetlands,'' but it would not affect any other provision of this rule
(or the 2023 Rule, as amended), all of which would continue to operate.
As another example, if paragraph (a)(1)(iii), which provides that
interstate waters (amended by this rule to no longer include interstate
wetlands) are ``waters of the United States,'' were deemed invalid,
every other provision of this rule (and the 2023 Rule as amended) could
continue to operate. References to paragraph (a)(1) in paragraphs
(a)(3) through (5), and paragraph (c)(2) would remain in effect, and
paragraph (a)(1) would simply be read to consist of paragraphs
(a)(1)(i) and (ii), without paragraph (a)(1)(iii) in whole or in part.
As a third example, if one of the exclusions from ``waters of the
United States'' in paragraph (b), or any part of one of the exclusions,
were deemed invalid, the remainder of this rule, and thus, the 2023
Rule as amended, would remain in effect. The rationale for each
exclusion in paragraph (b) is distinct and invalidating one exclusion
would not have any practical impact on any other part of the definition
of ``waters of the United States.''

IV. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive orders
can be found at https://www.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 a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094.
Accordingly, the agencies submitted this action to the Office of
Management and Budget (OMB) for Executive Order 12866 review.
Documentation of any changes made in response to the Executive Order
12866 review is available in the docket.
    This conforming rule amends the provisions of the agencies'
definition of ``waters of the United States'' that are invalid under
the Supreme Court's interpretation of the Clean Water Act in Sackett.
As such, it is the agencies' view that the rule does not by itself
impose cost savings or forgone benefits.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities. However, this action may change terms and concepts used by
EPA and Army to implement certain programs. The agencies thus may need
to revise some of their collections of information to be consistent
with this action and will do so consistent with the PRA and
implementing regulations.

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 agencies have invoked the
APA ``good cause'' exemption under 5 U.S.C. 553(b).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The definition of ``waters of the United States''
applies broadly to Clean Water Act programs, and this rule amending the
definition of ``waters of the United States'' simply conforms to a
decision of the Supreme Court. The action imposes no enforceable duty
on any Tribal, State, or local governments, or the private sector.

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.
    This conforming rule amends the provisions of the agencies'
definition of ``waters of the United States'' that are invalid under
the Supreme Court's interpretation of the Clean Water Act in Sackett.
Because the limited amendments in this rule do not involve the exercise
of the agencies' discretion, federalism consultation would neither
provide new information nor inform any agency decision-making regarding
the aspects of the regulations defining ``waters of the United States''
that are invalid under the Supreme Court's interpretation of the Clean
Water Act in Sackett. The agencies recognize, however, that changes to
the definition of ``waters of the United States'' may be of interest to
State and local governments. The agencies intend to hold discussions
with State and local governments on implementation of the definition of
``waters of the United States.''

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

    This rule amends the provisions of the agencies' definition of
``waters of the United States'' that are invalid under the Supreme
Court's interpretation of the Clean Water Act in Sackett. Because the
amendments in this rule do not involve the exercise of the agencies'
discretion, in this instance Tribal consultation and coordination could
not inform the decision-making in this final rule. The agencies
recognize, however, that changes to the definition of ``waters of the
United States'' may be of interest

to Tribal governments. The agencies intend to hold discussions with
Tribes on implementation of the definition of ``waters of the United
States.''

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

    EPA and the Army interpret Executive Order 13045 as applying only
to those regulatory actions that concern environmental health or safety
risks that the agencies have reason to believe may disproportionately
affect children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order.
    This conforming rule amends the provisions of the agencies'
definition of ``waters of the United States'' that are invalid under
the Supreme Court's interpretation of the Clean Water Act in Sackett.
Because these amendments are necessary to conform to the Supreme
Court's decision and do not involve the exercise of the agencies'
discretion, the rule does not concern an environmental health risk or
safety risk and is not subject to Executive Order 13045. Similarly,
this action does not concern human health, and therefore EPA's Policy
on Children's Health also does not apply.

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

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    This rule 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

    Executive Order 12898 (59 FR 7629, February 16, 1994) 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 communities with environmental justice concerns.
Executive Order 14096 (88 FR 25251, April 21, 2023) supplements the
foundational efforts of Executive Order 12898 to address environmental
justice.
    EPA and the Army believe that it is not necessary to assess whether
this action would result in disproportionate and adverse effects on
communities with environmental justice concerns, as this is a
conforming rule and the targeted amendments made do not reflect an
exercise of agency discretion. In prior analyses of potential
distributional impacts of the 2023 Rule (see Economic Analysis for
Final ``Revised Definition of `Waters of the United States' '' Rule,
Docket ID No. EPA-HQ-OW-2021-0602-2489), the agencies examined whether
the change in benefits due to that rule may be differentially
distributed among communities with environmental justice concerns in
the affected areas when compared to two baselines--the primary baseline
of the pre-2015 regulatory regime and the secondary baseline of the
2020 Navigable Waters Protection Rule. In that prior analysis, for most
of the wetlands and affected waters impacted at a hydrologic unit code
(HUC) \3\ 12 watershed level, there was no evidence of potential
environmental justice impacts from the 2023 Rule warranting further
analysis when compared to both baselines.
---------------------------------------------------------------------------

    \3\ HUC boundaries are established by the U.S. Geological Survey
and Natural Resources Conservation Service. These boundaries are
numbered using nested codes to represent the scale of the watershed
size. For example, HUC 12 watersheds are smaller than HUC 4
watersheds.
---------------------------------------------------------------------------

    The agencies recognize that the burdens of environmental pollution
and climate change often fall disproportionately on communities with
environmental justice concerns. Climate change will exacerbate the
existing risks faced by communities with environmental justice
concerns. However, this conforming rule merely amends the provisions of
the agencies' definition of ``waters of the United States'' that are
invalid under the Supreme Court's interpretation of the Clean Water Act
in Sackett. As noted above, these amendments on their own do not result
in any cost savings or forgone benefits not directed by the operation
of law. Because this rule does not involve the exercise of the
agencies' discretion, the agencies did not engage with communities with
environmental justice concerns in developing this action.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the agencies will submit a
rule report to each House of the Congress and to the Comptroller
General of the United States. This action is not a ``major rule'' as
defined by 5 U.S.C. 804(2). The CRA allows the issuing agency to make a
rule effective sooner than otherwise would be provided by the CRA if
the agency makes a good cause finding that notice and comment public
rulemaking procedures are impracticable, unnecessary, or contrary to
the public interest (5 U.S.C. 808(2)). The agencies have made a good
cause finding for this rule as discussed in section I of this preamble,
including the basis for that finding.

List of Subjects

33 CFR Part 328

    Administrative practice and procedure, Environmental protection,
Navigation (water), Water pollution control, Waterways.

40 CFR Part 120

    Environmental protection, Water pollution control, Waterways.

Michael L. Connor,
Assistant Secretary of the Army (Civil Works), Department of the Army.
Michael S. Regan,
Administrator, Environmental Protection Agency.

Title 33--Navigation and Navigable Waters

    For the reasons set out in the preamble, 33 CFR part 328 is amended
as follows:

PART 328--DEFINITION OF WATERS OF THE UNITED STATES

0
1. The authority citation for part 328 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
2. Section 328.3 is amended by:
0
a. Revising paragraphs (a)(1)(iii), (a)(3), and (a)(4)(ii);
0
b. Removing paragraph (a)(4)(iii);
0
c. Revising paragraphs (a)(5) and (c)(2); and
0
d. Removing paragraph (c)(6).
    The revisions read as follows:

Sec.  328.3  Definitions.

* * * * *
    (a) * * *
    (1) * * *
    (iii) Interstate waters;
* * * * *
    (3) Tributaries of waters identified in paragraph (a)(1) or (2) of
this section that are relatively permanent, standing or continuously
flowing bodies of water;
    (4) * * *
    (ii) Relatively permanent, standing or continuously flowing bodies
of water identified in paragraph (a)(2) or (a)(3) of this section and
with a continuous surface connection to those waters;
    (5) Intrastate lakes and ponds not identified in paragraphs (a)(1)
through (4) of this section that are relatively

permanent, standing or continuously flowing bodies of water with a
continuous surface connection to the waters identified in paragraph
(a)(1) or (a)(3) of this section.
* * * * *
    (c) * * *
    (2) Adjacent means having a continuous surface connection.
* * * * *

Title 40--Protection of Environment

    For reasons set out in the preamble, 40 CFR part 120 is amended as
follows:

PART 120--DEFINITION OF WATERS OF THE UNITED STATES

0
3 The authority citation for part 120 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
4. Section 120.2 is amended by:
0
a. Revising paragraphs (a)(1)(iii), (a)(3), and (a)(4)(ii);
0
b. Removing paragraph (a)(4)(iii);
0
c. Revising paragraphs (a)(5) and (c)(2); and
0
d. Removing paragraph (c)(6).
    The revisions read as follows:

Sec.  120.2  Definitions.

* * * * *
    (a) * * *
    (1) * * *
    (iii) Interstate waters;
* * * * *
    (3) Tributaries of waters identified in paragraph (a)(1) or (2) of
this section that are relatively permanent, standing or continuously
flowing bodies of water;
    (4) * * *
    (ii) Relatively permanent, standing or continuously flowing bodies
of water identified in paragraph (a)(2) or (a)(3) of this section and
with a continuous surface connection to those waters;
    (5) Intrastate lakes and ponds not identified in paragraphs (a)(1)
through (4) of this section that are relatively permanent, standing or
continuously flowing bodies of water with a continuous surface
connection to the waters identified in paragraph (a)(1) or (a)(3) of
this section.
* * * * *
    (c) * * *
    (2) Adjacent means having a continuous surface connection.
* * * * *
[FR Doc. 2023-18929 Filed 9-7-23; 8:45 am]
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June 6, 2006

Susan Bodine

Assistant Administrator

Office of Solid Waste and Emergency Response

Mail Code: 5101T

U.S. Environmental Protection Agency

Ariel Rios Building, 5101T

1200 Pennsylvania Avenue, N. W.

Washington, DC 20460

Re:	Meeting on Revision to the Definition of Solid Waste

Dear Assistant Administrator Bodine:

Thank you for meeting with us on revising the definition of solid waste
on May 24th.  We appreciate you taking time out of your busy schedule to
discuss this important topic.   SOCMA is the leading trade association
representing the batch and custom chemical industry with approximately
270+ members. Over 80% of SOCMA members are small businesses with
limited resources.  SOCMA members have shifting product lines that
result in changing waste streams and pay a high disposal cost on
secondary materials that might otherwise be valuable for recycling or
reuse.

As we discussed at our meeting, we have and will continue to advocate to
EPA to adopt a focused conditional exemption to the requirements of the
RCRA definition of solid waste (“DSW”) regulations that would
recognize the unique scenarios of the toll manufacturing within the
specialty batch chemical sector to reuse and recycle secondary materials
in a manner that would preserve resources and provide significant cost
saving to this competitive sector of the U.S. economy.

SOCMA commends EPA for its collaborative effort with our industry sector
on this important issue.  Also, we thank both you and the OSW staff for
continuing to give our proposed conditional exemption serious
consideration.  Thanks again, and if you should have questions or would
like additional information, please contact me at<PHONE_NUMBER> or at
HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>.

Sincerely,

Jeff Gunnulfsen

Manager, Government Relations

SOCMA


[Federal Register Volume 78, Number 141 (Tuesday, July 23, 2013)]
[Notices]
[Page 44132]
[FR Doc No: 2013-17599]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2013-N-0001]

Food Advisory Committee; Notice of Meeting

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

-----------------------------------------------------------------------

    This notice announces a forthcoming meeting of a public advisory
committee of the Food and Drug Administration (FDA). The meeting will
be open to the public.
    Name of Committee: Food Advisory Committee.
    General Function of the Committee: To provide advice and
recommendations to the Agency on FDA's regulatory issues.
    Date and Time: The meeting will be held on September 23 and 24,
2013, from 8:30 a.m. to 5 p.m.
    Location: FDA White Oak Campus, 10903 New Hampshire Ave., Building
31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD
20993. Information regarding special accommodations due to a
disability, visitor parking, and transportation may be accessed at:
http://www.fda.gov/AdvisoryCommittees/default.htm; under the heading
``Resources for You,'' click on ``Public Meetings at the FDA White Oak
Campus.'' Please note that visitors to the White Oak Campus must enter
through Building 1.
    Contact Person: Karen Strambler, Center for Food Safety and Applied
Nutrition (CFSAN), Food and Drug Administration, 5100 Paint Branch
Pkwy., College Park, MD 20740<EMAIL_ADDRESS>240-
402-2589 or FDA Advisory Committee Information Line, 1-800-741-8138
(301-443-0572 in the Washington, DC area). A notice in the Federal
Register about last minute modifications that impact a previously
announced advisory committee meeting cannot always be published quickly
enough to provide timely notice. Therefore, you should always check the
Agency's Web site at http://www.fda.gov/AdvisoryCommittees/default.htm
and scroll down to the appropriate advisory committee meeting link, or
call the advisory committee information line to learn about possible
modifications before coming to the meeting.
    Agenda: On September 23 and 24, 2013, the Food Advisory Committee
will meet to discuss detection signals for noteworthy chemical hazards
in foods, dietary supplements, and cosmetics and consider possible
sources of information, data on chemical hazards, and how CFSAN might
recognize and best take advantage of those data.
    FDA intends to make background material available to the public no
later than 2 business days before the meeting. If FDA is unable to post
the background material on its Web site prior to the meeting, the
background material will be made publicly available at the location of
the advisory committee meeting, and the background material will be
posted on FDA's Web site after the meeting. Background material is
available at http://www.fda.gov/AdvisoryCommittees/Calendar/default.htm. Scroll down to the appropriate advisory committee meeting
link.
    Procedure: Interested persons may present data, information, or
views, orally or in writing, on issues pending before the committee.
Written submissions may be made to the contact person on or before
September 16, 2013. Oral presentations from the public will be
scheduled between approximately 11 a.m. to 12 p.m. on September 24,
2013. Those individuals interested in making formal oral presentations
should notify the contact person and submit a brief statement of the
general nature of the evidence or arguments they wish to present, the
names and addresses of proposed participants, and an indication of the
approximate time requested to make their presentation on or before
August 26, 2013. Time allotted for each presentation may be limited. If
the number of registrants requesting to speak is greater than can be
reasonably accommodated during the scheduled open public hearing
session, FDA may conduct a lottery to determine the speakers for the
scheduled open public hearing session. The contact person will notify
interested persons regarding their request to speak by September 9,
2013.
    Persons attending FDA's advisory committee meetings are advised
that the Agency is not responsible for providing access to electrical
outlets.
    FDA welcomes the attendance of the public at its advisory committee
meetings and will make every effort to accommodate persons with
physical disabilities or special needs. If you require special
accommodations due to a disability, please contact Karen Strambler at
least 7 days in advance of the meeting.
    FDA is committed to the orderly conduct of its advisory committee
meetings. Please visit our Web site at http://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm111462.htm for procedures
on public conduct during advisory committee meetings.
    Notice of this meeting is given under the Federal Advisory
Committee Act (5 U.S.C. app. 2).

    Dated: July 17, 2013.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2013-17599 Filed 7-22-13; 8:45 am]
BILLING CODE 4160-01-P


[Federal Register Volume 78, Number 21 (Thursday, January 31, 2013)]
[Proposed Rules]
[Pages 6783-6784]
[FR Doc No: 2013-02018]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0328; FRL-9774-3]

Approval and Promulgation of Air Quality Implementation Plans;
Minnesota; Flint Hills Resources Pine Bend

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve an August 29, 2011, request for
revision to the Minnesota sulfur dioxide State Implementation Plan for
Flint Hills Resources Pine Bend, LLC, in Dakota County. This oil
refinery is shutting down an incinerator, rerouting process gases,
planning for a new boiler, and making other emission limit reductions.
This revision addresses an important safety issue with the current off-
gas incinerator. Because the revision will result in a decrease in
sulfur dioxide emissions, EPA proposes to approve the revision.

DATES: Comments must be received on or before March 4, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0328, by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: Pamela Blakley, Chief, Control Strategies Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Pamela Blakley, Chief, Control Strategies
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such
deliveries are only accepted during the Regional Office normal hours of
operation, and special arrangements should be made for deliveries of
boxed information. The Regional Office official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal
holidays.
    Please see the direct final rule which is located in the Rules
section of this Federal Register for detailed instructions on how to
submit comments.

FOR FURTHER INFORMATION CONTACT: Mary Portanova, Environmental
Engineer, Control Strategies Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: In the Final Rules section of this Federal
Register, EPA is approving the State's SIP submittal as a direct final
rule without prior proposal because the Agency views this as a
noncontroversial submittal and anticipates no adverse comments. A
detailed rationale for the approval is set forth in the direct final
rule. If no adverse comments are received in response to this rule, no
further activity is contemplated. If EPA receives adverse comments, the
direct final rule will be withdrawn and all public comments received
will be addressed in a subsequent final rule based on this proposed
rule. EPA will not institute a second comment period. Any parties
interested in commenting on this action should do so at this time.
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment. For
additional information, see the direct final rule which is located in
the Rules section of this Federal Register.

    Dated: January 17, 2013.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2013-02018 Filed 1-30-13; 8:45 am]
BILLING CODE 6560-50-P