[Federal Register Volume 77, Number 174 (Friday, September 7, 2012)]
[Proposed Rules]
[Pages 55171-55174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22098]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2012-0305; FRL-9724-9]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Deferral for CO2 Emissions From Bioenergy and Other Biogenic
Sources Under the Prevention of Significant Deterioration Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Maryland Department of the Environmental
(MDE) on April 4, 2012. This revision proposes to defer until July 21,
2014 the application of the Prevention of Significant Deterioration
(PSD) permitting requirements to biogenic carbon dioxide
(CO2) emissions from bioenergy and other biogenic stationary
sources in the State of Maryland. This action is being taken under the
Clean Air Act (CAA).
DATES: Written comments must be received on or before October 9, 2012.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0305 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2012-0305, Ms. Kathleen Cox, Associate
Director, Office of Permits and Air Toxics, Mailcode 3AP10, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2012-0305. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Maryland Department of the Environment, 1800
Washington Boulevard, Suite 705, Baltimore, Maryland 21230.
FOR FURTHER INFORMATION CONTACT: Mr. David Talley, (215) 814-2117, or
by email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. On April 4, 2012, MDE
submitted a revision (12-02) to its State Implementation Plan
(SIP) to maintain consistency with Federal greenhouse gas (GHG)
permitting requirements under the PSD program.
I. Background
A. The Tailoring Rule
On June 3, 2010 (effective August 2, 2010), EPA promulgated a final
rulemaking, the Tailoring Rule, for the purpose of relieving
overwhelming permitting burdens from the regulation of GHG's that
would, in the absence of the rule, fall on permitting authorities and
sources (75 FR 31514). EPA accomplished this by tailoring the
applicability criteria that determine which GHG emission sources become
subject to the PSD program of the CAA. In particular, EPA established
in the Tailoring Rule a phase-in approach for PSD applicability and
established the first two steps of the phase-in for the largest GHG-
emitters.
For the first step of the Tailoring Rule, which began on January 2,
2011, PSD requirements apply to major stationary source GHG emissions
only if the sources are subject to PSD anyway due to their emissions of
non-GHG pollutants. Therefore, in the first step, EPA did not require
sources or modifications to evaluate whether they are subject to PSD
requirements solely on account of their GHG emissions. Specifically,
for PSD, Step 1 requires that as of January 2, 2011, the applicable
requirements of PSD, most noticeably the best available control
technology
[[Page 55172]]
(BACT) requirement as defined in CAA section 169(3), apply to projects
that increase net GHG emissions by at least 75,000 tons per year (tpy)
of CO2 equivalent (CO2e), but only if the project
also significantly increases emissions of at least one non-GHG
pollutant. CO2e is a metric used to compare the emissions
from various greenhouse gases based upon their global warming potential
(GWP). The CO2e for a gas is determined by multiplying the
mass of the gas by the associated GWP. The applicable GWP's and
guidance on how to calculate a source's GHG emissions in tpy
CO2e can be found in EPA's ``Inventory of U.S. Greenhouse
Gas Emissions and Sinks,'' which is updated annually under existing
commitment under the United Nations Framework Convention on Climate
Change (UNFCCC).
The second step of the Tailoring Rule, which began on July 1, 2011,
phased in additional large sources of GHG emissions. New sources that
emit, or have the potential to emit (PTE), at least 100,000 tpy
CO2e are subject to the PSD requirements. In addition,
sources that emit or have the PTE at least 100,000 tpy CO2e
and that undertake a modification that increases net GHG emissions by
at least 75,000 tpy CO2e are also be subject to PSD
requirements. For both steps, EPA noted that if sources or
modifications exceed these CO2e-adjusted GHG triggers, they
are not covered by permitting requirements unless their GHG emissions
also exceed the corresponding mass-based triggers in tpy.
Maryland implements its PSD program by incorporating 40 CFR 52.21
by reference, under COMAR 26.11.06.14B(1). This incorporation
references a date specific version of the CFR and is updated
periodically and submitted to EPA for approval into the SIP. In order
to adopt the Tailoring Rule, Maryland's previous update incorporated 40
CFR 52.21 ``as published in the 2009 edition, as amended by the
`Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule' (75 FR 31514).'' EPA approved this revision into the
Maryland SIP on August 2, 2012 (77 FR 45949).
B. EPA's Biomass Deferral Rule
On July 20, 2011, EPA promulgated the final ``Deferral for
CO2 Emissions from Bioenergy and other Biogenic Sources
Under the Prevention of Significant Deterioration (PSD) and Title V
Programs'' (Biomass Deferral). Following is a brief discussion of the
deferral. For a full discussion of EPA's rationale for the rule, see
the notice of final rulemaking at 76 FR 43490.
The biomass deferral delays until July 21, 2014 the consideration
of CO2 emissions from bioenergy and other biogenic sources
(hereinafter referred to as ``biogenic CO2 emissions'') when
determining whether a stationary source meets the PSD and Title V
applicability thresholds, including those for the application of BACT
\1\. Stationary sources that combust biomass (or otherwise emit
biogenic CO2 emissions) and construct or modify during the
deferral period will avoid the application of PSD to the biogenic
CO2 emissions resulting from those actions. The deferral
applies only to biogenic CO2 emissions and does not affect
non-GHG pollutants or other GHG's (e.g., methane (CH4) and
nitrous oxide (N2O)) emitted from the combustion of biomass
fuel. Also, the deferral only pertains to biogenic CO2
emissions in the PSD and Title V programs and does not pertain to any
other EPA programs such as the GHG Reporting Program.
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\1\ As with the Tailoring Rule, the Biomass Deferral addresses
both PSD and Title V requirements. However, EPA is only taking
action on Maryland's PSD program as part of this action.
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Biogenic CO2 emissions are defined as emissions of
CO2 from a stationary source directly resulting from the
combustion or decomposition of biologically-based materials other than
fossil fuels and mineral sources of carbon. Examples of ``biogenic
CO2 emissions'' include, but are not limited to:
CO2 generated from the biological decomposition
of waste in landfills, wastewater treatment or manure management
processes;
CO2 from the combustion of biogas collected
from biological decomposition of waste in landfills, wastewater
treatment or manure management processes;
CO2 from fermentation during ethanol production
or other industrial fermentation processes;
CO2 from combustion of the biological fraction
of municipal solid waste or biosolids;
CO2 from combustion of the biological fraction
of tire-derived fuel; and
CO2 derived from combustion of biological
material, including all types of wood and wood waste, forest residue,
and agricultural material.
EPA recognizes that use of certain types of biomass can be part of
the national strategy to reduce dependence on fossil fuels. Efforts are
underway at the Federal, state and regional level to foster the
expansion of renewable resources and promote bioenergy projects when
they are a way to address climate change, increase domestic alternative
energy production, enhance forest management and create related
employment opportunities. We believe part of fostering this development
is to ensure that those feedstocks with negligible net atmospheric
impact not be subject to unnecessary regulation. At the same time, it
is important that EPA have time to conduct its detailed examination of
the science and technical issues related to accounting for biogenic
CO2 emissions and therefore have finalized this deferral.
The deferral is intended to be a temporary measure, in effect for no
more than three years, to allow the Agency time to complete its work
and determine what, if any, treatment of biogenic CO2
emissions should be in the PSD and Title V programs. The biomass
deferral rule is not EPA's final determination on the treatment of
biogenic CO2 emissions in those programs. The Agency plans
to complete its science and technical review and any follow-on
rulemakings within the three-year deferral period and further believes
that three years is ample time to complete these tasks. It is possible
that the subsequent rulemaking, depending on the nature of EPA's
determinations, would supersede the biomass deferral rulemaking and
become effective in fewer than three years. In that event, Maryland may
revise its SIP accordingly.
For stationary sources co-firing fossil fuel and biologically-based
fuel, and/or combusting mixed fuels (e.g., tire derived fuels,
municipal solid waste (MSW)), the biogenic CO2 emissions
from that combustion are included in the biomass deferral. However, the
fossil CO2 emissions are not. Emissions of CO2
from processing of mineral feedstocks (e.g., calcium carbonate) are
also not included in the deferral. Various methods are available to
calculate both the biogenic and fossil portions of CO2
emissions, including those methods contained in the GHG Reporting
Program (40 CFR Part 98). Consistent with the other pollutants in PSD
and Title V, there are no requirements to use a particular method in
determining biogenic and fossil CO2 emissions.
EPA's final biomass deferral rule is an interim deferral for
biogenic CO2 emissions only and does not relieve sources of
the obligation to meet the PSD and Title V permitting requirements for
other pollutant emissions that are otherwise applicable to the source
during the deferral period or that may be applicable to the source at a
future date pending the results of
[[Page 55173]]
EPA's study and subsequent rulemaking action. This means, for example,
that if the deferral is applicable to biogenic CO2 emissions
from a particular source during the three-year effective period and the
study and future rulemaking do not provide for a permanent exemption
from PSD and Title V permitting requirements for the biogenic
CO2 emissions from a source with particular characteristics,
then the deferral would end for that type of source and its biogenic
CO2 emissions would have to be appropriately considered in
any applicability determinations that the source may need to conduct
for future stationary source permitting purposes, consistent with that
subsequent rulemaking and the Final Tailoring Rule (e.g., a major
source determination for Title V purposes or a major modification
determination for PSD purposes). EPA also wishes to clarify that we do
not require that a PSD permit issued during the deferral period be
amended or that any PSD requirements in a PSD permit existing at the
time the deferral took effect, such as BACT limitations, be revised or
removed from an effective PSD permit for any reason related to the
deferral or when the deferral period expires.
Section 52.21(w) of 40 CFR requires that any PSD permit shall
remain in effect, unless and until it expires or it is rescinded, under
the limited conditions specified in that provision. Thus, a PSD permit
that is issued to a source while the deferral was effective need not be
reopened or amended if the source is no longer eligible to exclude its
biogenic CO2 emissions from PSD applicability after the
deferral expires. However, if such a source undertakes a modification
that could potentially require a PSD permit and the source is not
eligible to continue excluding its biogenic CO2 emissions
after the deferral expires, the source will need to consider its
biogenic CO2 emissions in assessing whether it needs a PSD
permit to authorize the modification.
Any future actions to modify, shorten, or make permanent the
deferral for biogenic sources are beyond the scope of the biomass
deferral action and this proposed approval of the deferral into the
Maryland SIP, and will be addressed through subsequent rulemaking. The
results of EPA's review of the science related to net atmospheric
impacts of biogenic CO2 and the framework to properly
account for such emissions in Title V and PSD permitting programs based
on the study are prospective and unknown. Thus, we are unable to
predict which biogenic CO2 sources, if any, currently
subject to the deferral as incorporated into the Maryland SIP would be
subject to any permanent exemptions or which currently deferred sources
would be potentially required to account for their emissions in the
future rulemaking EPA has committed to undertake for such purposes in
three or fewer years. Only in that rulemaking can EPA address the
question of extending the deferral or putting in place requirements
that would have the equivalent effect on sources covered by the biomass
deferral. Once that rulemaking has occurred, Maryland may address
related revisions to its SIP.
II. Summary of SIP Revision
Similar to our approach with the Tailoring Rule, EPA incorporated
the biomass deferral into the regulations governing state programs and
into the Federal PSD program by amending the definition of ``subject to
regulation'' under 40 CFR sections 51.166 and 52.21 respectively. As
discussed above, Maryland implements its PSD program by incorporating
section 52.21 by reference. This incorporation references a date
specific version of the CFR and is updated periodically and submitted
to EPA for approval into the SIP. In order to adopt the Biomass
Deferral, Maryland has revised COMAR 26.11.06.14B(1) to incorporate the
2009 version of 40 CFR 52.21 ``as amended by'' the Tailoring Rule and
the Biomass Deferral. Additionally, the definitions of ``PSD source''
and greenhouse gas'' at COMAR 26.11.01.01 and 26.11.02.01 respectively
have been revised to incorporate the Biomass Deferral.
III. Proposed Action
EPA's review of this material indicates that it is consistent with
Federal regulations. EPA is proposing to approve the Maryland SIP
revision incorporating the Biomass Deferral, which was submitted on
April 4, 2012. EPA is soliciting public comments on this proposed
approval of Maryland's SIP revision request. These comments will be
considered before taking final action.
IV. 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 proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
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, this proposed rule relating to the Biomass Deferral
and GHG permitting under Maryland's PSD program does not have tribal
implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is not approved to apply in Indian
country located in the state, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
[[Page 55174]]
Dated: August 23, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012-22098 Filed 9-6-12; 8:45 am]
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