[Federal Register Volume 78, Number 164 (Friday, August 23, 2013)]
[Proposed Rules]
[Pages 52473-52476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20657]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2013-0060; FRL-9900-26-Region 6]
Approval and Promulgation of Implementation Plans; New Mexico;
Prevention of Significant Deterioration; Greenhouse Gas Plantwide
Applicability Limit Permitting Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to approve portions of one revision to
the New Mexico State Implementation Plan (SIP) submitted by the New
Mexico Environment Department (NMED) to EPA on January 8, 2013. The
January 8, 2013, proposed SIP revision adopts necessary rule revisions
to the PSD plantwide applicability limit (PAL) permitting provisions to
issue PALs to GHG sources. EPA is proposing to approve the January 8,
2013 SIP revision to the New Mexico PSD permitting program as
consistent with federal requirements for PSD permitting. At this time,
EPA is proposing to sever and take no action on the portion of the
January 8, 2013, SIP revision that relates to the provisions of EPA's
July 20, 2011 GHG Biomass Deferral Rule. EPA is proposing this action
under section 110 and part C of the Clean Air Act (CAA or the Act). EPA
is not proposing to approve these rules within the exterior boundaries
of a reservation or other areas within any Tribal Nation's
jurisdiction.
DATES: Comments must be received on or before September 23, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2013-0060, by one of the following methods:
http://www.regulations.gov. Follow the online instructions
for submitting comments.
Email: Ms. Adina Wiley at [email protected].
Fax: Ms. Adina Wiley, Air Permits Section (6PD-R), at fax
number 214-665-6762.
Mail or Delivery: Ms. Adina Wiley, Air Permits Section
(6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2013-0060. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://
[[Page 52474]]
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information the disclosure of which
is restricted by statute. Do not submit information through http://www.regulations.gov or email, if you believe that it is CBI or
otherwise protected from disclosure. The http://www.regulations.gov Web
site is an ``anonymous access'' system, which means that 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 http://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 along
with any disk or CD-ROM submitted. 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 and any form of encryption and should be
free of any defects or viruses. For additional information about EPA's
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
the disclosure of which is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the Air
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 FOIA
Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays
except for legal holidays. Contact the person listed in the FOR FURTHER
INFORMATION CONTACT paragraph below to make an appointment. If
possible, please make the appointment at least two working days in
advance of your visit. A 15 cent per page fee will be charged for
making photocopies of documents. On the day of the visit, please check
in at the EPA Region 6 reception area on the seventh floor at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittals related to this SIP revision, and which are
part of the EPA docket, are also available for public inspection at the
Local Air Agency listed below during official business hours by
appointment:
New Mexico Environment Department, Air Quality Bureau, 1190 St.
Francis Drive, Santa Fe, New Mexico, 87502.
FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley (6PD-R), Air Permits
Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue
(6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number is
(214) 665-2115. Ms. Wiley can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background for Our Proposed Action
A. History of EPA's GHG-Related Actions
B. EPA's Biomass Deferral Rule
C. EPA's Tailoring Rule Step 3
II. Summary of State Submittal
III. EPA's Analysis of State Submittal
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background for Our Proposed Action
The Act at section 110(a)(2)(C) requires states to develop and
submit to EPA for approval into the state SIP, preconstruction review
and permitting programs applicable to certain new and modified
stationary sources of air pollutants for attainment and nonattainment
areas that cover both major and minor new sources and modifications,
collectively referred to as the New Source Review (NSR) SIP. The CAA
NSR SIP program is composed of three separate programs: Prevention of
Significant Deterioration (PSD), Nonattainment New Source Review
(NNSR), and Minor NSR. PSD is established in part C of title I of the
CAA and applies in areas that meet the NAAQS--``attainment areas''--as
well as areas where there is insufficient information to determine if
the area meets the NAAQS--``unclassifiable areas.'' The NNSR SIP
program is established in part D of title I of the CAA and applies in
areas that are not in attainment of the NAAQS--``nonattainment areas.''
The Minor NSR SIP program addresses construction or modification
activities that do not emit, or have the potential to emit, beyond
certain major source thresholds and thus do not qualify as ``major''
and applies regardless of the designation of the area in which a source
is located. EPA regulations governing the criteria that states must
satisfy for EPA approval of the NSR programs as part of the SIP are
contained in 40 CFR 51.160-51.166.
New Mexico submitted on January 8, 2013, regulations specific to
the New Mexico PSD permitting program for approval by EPA into the New
Mexico SIP. The January 8, 2013, SIP submittal includes the PSD
permitting provisions that were adopted on January 7, 2013 at 20.2.74
NMAC to defer the application of the PSD requirements to biogenic
carbon dioxide emissions from bioenergy and other biogenic stationary
sources consistent with the EPA's final rule ``Deferral for
CO2 Emissions from Bioenergy and other Biogenic Sources
under the Prevention of Significant Deterioration (PSD) and Title V
Programs'' (76 FR 43490) (hereafter referred to as the ``Biomass
Deferral Rule''). The January 8, 2013, SIP submittal also adopts
regulations that provide NMED the ability to issue GHG PALs consistent
with the ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule Step 3 and GHG Plantwide Applicability
Limits Final Rule'' (77 FR 41051) hereafter referred to as the
``Tailoring Rule Step 3''.
On July 12, 2013, the U.S. Court of Appeals for the D.C. Circuit
issued its decision to vacate the Biomass Deferral Rule. See Center for
Biological Diversity v. EPA (D.C. Cir. No. 11-1101).\1\ At this time,
EPA is proposing to sever and take no action on the portion of the
January 8, 2013, SIP submittal that adopted the biomass deferral
provisions.
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\1\ The July 12, 2013, order states ``[it] is ORDERED, on the
court's own motion, that the Clerk withhold issuance of the mandate
herein until seven days after disposition of any timely petition for
rehearing or petition for rehearing en banc. See Fed. R. App. P.
41(b); D.C. Cir. Rule 41. This instruction to the Clerk is without
prejudice to the right of any party to move for expedited issuance
of the mandate for good cause shown.''
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Today's proposed action and the accompanying Technical Support
Document (TSD) present our rationale for proposing approval of these
regulations as meeting the minimum federal requirements for the
adoption and implementation of the PSD SIP permitting programs.
A. History of EPA's GHG-Related Actions
This section briefly summarizes EPA's recent GHG-related actions
that provide the background for this action. For more information about
EPA's actions, please
[[Page 52475]]
see the preambles for the identified GHG-related rulemakings discussed
in the following paragraphs. The citations for each rulemaking are
included below in footnotes to aid the reader.
EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part are distinct from
one another, establish the overall framework for today's final action
on the New Mexico SIP. Four of these actions include, as they are
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action,\2\ the ``Johnson
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and
the ``Tailoring Rule.'' \5\ Taken together and in conjunction with the
CAA, these actions established regulatory requirements for GHGs emitted
from new motor vehicles and new motor vehicle engines; determined that
such regulations, when they took effect on January 2, 2011, subjected
GHGs emitted from stationary sources to PSD requirements; and limited
the applicability of PSD requirements to GHG sources on a phased-in
basis. EPA took this last action in the Tailoring Rule, which, more
specifically, established appropriate GHG emission thresholds for
determining the applicability of PSD requirements to GHG-emitting
sources. PSD is implemented through the SIP system, and so in December
2010, EPA promulgated several rules to implement the new GHG PSD SIP
program. Recognizing that some states had approved SIP PSD programs
that did not apply PSD to GHGs, EPA issued a SIP call and, for some of
these States, finalized a finding of failure to submit followed by a
Federal Implementation Plan.6 7 8
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\2\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\3\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
\4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
\5\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
\6\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call; Final Rule'' 75 FR 77698 (December 13, 2010). New Mexico was
not subject to the SIP Call.
\7\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Failure to Submit State
Implementation Plan Revisions Required for Greenhouse Gases'' 75 FR
81874 (December 29, 2010). New Mexico was not subject to the SIP
Call so EPA did not make a finding of failure to submit for New
Mexico.
\8\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan'' 75 FR 82246
(December 30, 2010). New Mexico was not covered by the GHG PSD
Federal Implementation Plan.
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For other states, EPA recognized that many states had approved SIP
PSD programs that do apply PSD to GHGs, but that do so for sources that
emit as little as 100 or 250 tpy of GHG, and that do not limit PSD
applicability to GHGs to the higher thresholds in the Tailoring Rule;
therefore, EPA issued the GHG PSD SIP Narrowing Rule.\9\ Under that
rule, EPA withdrew its approval of the affected SIPs to the extent
those SIPs covered GHG-emitting sources below the Tailoring Rule
thresholds. EPA based its action primarily on the ``error correction''
provisions of CAA section 110(k)(6). Under the GHG PSD SIP Narrowing
Rule, EPA withdrew the approval of the New Mexico PSD SIP only to the
extent that the New Mexico SIP covered GHG-emitting sources below the
Tailoring Rule thresholds. EPA has since removed the Narrowing Rule
restrictions from the New Mexico SIP because we approved the revisions
to the New Mexico PSD program that were submitted on December 1, 2010,
establishing appropriate GHG PSD permitting thresholds consistent with
EPA's Tailoring Rule. See 76 FR 43149, July 20, 2011.
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\9\ ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting Sources
in State Implementation Plans; Final Rule'' 75 FR 82536 (December
30, 2010).
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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 Rule). The Biomass Deferral delayed until
July 21, 2014 the consideration of CO2 emissions from
bioenergy and other biogenic sources when determining whether a
stationary source meets the PSD and Title V applicability thresholds.
The D.C. Circuit Court issued its decision to vacate the Biomass
Deferral Rule on July 12, 2013.
C. EPA's Tailoring Rule Step 3
On July 12, 2012, EPA promulgated the final ``Prevention of
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule
Step 3 and GHG Plantwide Applicability Limits'' (GHG Tailoring Rule
Step 3 and GHG PALs). Following is a brief discussion of the Tailoring
Rule Step 3. For a full discussion of EPA's rationale for the rule, see
the notice of final rulemaking at 77 FR 41051.
In the Tailoring Rule, we made regulatory commitments for
subsequent action, including promulgating the Tailoring Rule Step 3.
Specifically, we committed in Step 3 to propose or solicit comment on
lowering the 100,000/75,000 major source threshold on the basis of
three criteria that concerned whether the permitting authorities had
the necessary time to develop greater administrative capacity due to an
increase in resources or permitting experience, as well as whether the
EPA and the permitting authorities had developed ways to streamline
permit issuance. We committed to complete the Step 3 action by July 1,
2012.
The EPA finalized Step 3 by determining not to lower the current
GHG applicability thresholds from the Step 1 and Step 2 levels at this
time. We found that the three criteria have not been met because state
permitting authorities have not had sufficient time and opportunity to
develop the necessary infrastructure and increase their GHG permitting
expertise and capacity, and that we and the state permitting
authorities have not had the opportunity to develop streamlining
measures to improve permit implementation. See 77 FR 41051, 41052.
The Tailoring Rule Step 3 also promulgated revisions to our
regulations under 40 CFR part 52 for better implementation of the
federal program for establishing PALs for GHG emissions. A PAL
establishes a site-specific plantwide emission level for a pollutant
that allows the source to make changes at the facility without
triggering the requirements of the PSD program, provided that emissions
do not exceed the PAL level. Under the EPA's interpretation of the
federal PAL provisions, such PALs are already available under PSD for
non-GHG pollutants and for GHGs on a mass basis, and we revised the PAL
regulations to allow for GHG PALs to be established on a CO2e basis as
well. We also revised the regulations to allow a GHG-only source to
submit an application for a CO2e-based GHG PAL while also maintaining
its minor source status. We believe that these actions could streamline
PSD permitting programs by allowing sources and permitting authorities
to address GHGs one time for a source and avoid repeated subsequent
permitting actions for a 10- year period. See 77 FR 41051, 41052.
[[Page 52476]]
II. Summary of State Submittal
EPA's most recent approval to the New Mexico PSD program was on
January 22, 2013, where we updated our approval of the NM PSD program
to include the required elements for PSD permitting of PM2.5
that were submitted on May 23, 2011. See 78 FR 4339. Since that time,
the State of New Mexico has adopted and submitted one revision to the
PSD program on January 8, 2013, affecting the following sections:
20.2.74.7 NMAC--Definitions,
20.2.74.320 NMAC--Actuals Plantwide Applicability Limits
(PALs)
These revisions have been submitted to adopt and implement the GHG
Biomass deferral provisions consistent with EPA's July 20, 2011 Final
Rule titled ``Deferral for CO2 Emissions from Bioenergy and Other
Biogenic Sources Under the Prevention of Significant Deterioration
(PSD) and Title V Programs'', and the Tailoring Rule Step 3 permitting
provisions consistent with EPA's July 12, 2012 Final Rule titled
``Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule Step 3 and GHG Plantwide Applicability Limits''. The New
Mexico Environment Department received no comments on this rulemaking.
III. EPA's Analysis of State Submittal
As explained more fully in the accompanying TSD in this rulemaking,
New Mexico has adopted and submitted regulations that are substantively
similar to the federal requirements for the permitting of GHG-emitting
sources subject to PSD. The detailed analysis in our TSD demonstrates
that the revisions to 20.2.74.7(AZ)(1) and 20.2.74.320 NMAC adopted on
January 7, 2013, and submitted on January 8, 2013, appropriately
revised the PSD PAL permitting requirements to provide the NMED the
authority to issue GHG PALs, consistent with EPA's Tailoring Rule Step
3 for GHG PALs. Our analysis also demonstrated that non-substantive
revisions adopted at 20.2.74.7(AZ)(1), (2), (2)(b), (3), (4), and (5)
to correct typographical errors are also approvable.
Our analysis also demonstrates that New Mexico adopted revisions to
the definition of ``subject to regulation'' at 20.2.74.7(AZ)(2)(a) NMAC
on January 7, 2013, and submitted on January 8, 2013, for the GHG
biomass deferral rule. The D.C. Circuit Court issued its decision to
vacate EPA's Biomass Deferral Rule on July 12, 2013. At this time, we
are proposing to sever and take no action on the submitted biomass
revisions from New Mexico.
IV. Proposed Action
EPA proposes to approve portions of the January 8, 2013, submitted
revisions to 20.2.74 NMAC into the New Mexico PSD SIP. New Mexico's
January 8, 2013, proposed SIP revision adopts the necessary rule
revisions to provide NMED the authority to issue GHG PALs in the New
Mexico PSD program. EPA has made the preliminary determination that the
January 8, 2013 revisions to 20.2.74 NMAC are approvable because they
are adopted and submitted in accordance with the CAA and EPA
regulations regarding PSD permitting for GHGs. Therefore, under section
110 and part C of the Act, and for the reasons stated above, EPA
proposes to approve the following revisions to the New Mexico SIP:
Substantive revisions to 20.2.74.7(AZ)(1) NMAC
establishing GHG PAL permitting requirements,
Non-substantive revisions to 20.2.74.7(AZ)(1), (2),
(2)(b), (3), (4), and (5) to correct formatting, and
Substantive revisions to 20.2.74.320 NMAC establishing the
GHG PAL permitting requirements.
EPA is proposing to sever and take no action at this time on the
submitted revisions to 20.2.74.7(AZ)(2)(a) NMAC. The D.C. Circuit Court
issued an order to vacate EPA's Biomass Deferral Rule on July 12, 2013.
EPA is not proposing to approve these rules within the exterior
boundaries of a reservation or other areas within any Tribal Nation's
jurisdiction.
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 Clean Air Act 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 Clean Air Act.
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
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 Clean Air Act; 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 rule 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, Intergovernmental
relations, Reporting and recordkeeping requirements, and incorporation
by reference.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 9, 2013.
Samuel Coleman,
Acting Regional Administrator, Region 6.
[FR Doc. 2013-20657 Filed 8-22-13; 8:45 am]
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