[Federal Register Volume 81, Number 6 (Monday, January 11, 2016)]
[Proposed Rules]
[Pages 1141-1144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33098]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2015-0783; FRL-9940-79-Region 6]
Approval and Promulgation of Implementation Plans; Arkansas; New
Mexico; Oklahoma; Disapproval of Greenhouse Gas Biomass Deferral, Step
2 and Minor Source Permitting Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove severable portions of the February 6, 2012 Oklahoma State
Implementation Plan (SIP) submittal that are now inconsistent with
federal laws due to intervening decisions by the United States Courts
and EPA rulemaking. This submittal establishes Minor New Source Review
permitting requirements for greenhouse gas (GHG) emissions and includes
Prevention of Significant Deterioration (PSD) permitting provisions for
sources that are classified as major, and, thus, required to obtain a
PSD permit, based solely on their potential GHG emissions. The PSD
permitting provisions also require a PSD permit for modifications of
otherwise major sources because they increased only GHG above
applicable levels. Additionally, we are proposing to disapprove
severable portions of SIP submittals for the States of Arkansas, New
Mexico, and Oklahoma addressing the EPA's July 20, 2011 rule deferring
PSD requirements for carbon dioxide (CO2) emissions from
bioenergy and other biogenic sources (``Biomass Deferral''). We are
proposing to disapprove the provisions adopting the Biomass Deferral
because the deferral has expired, so the provisions are no longer
consistent with federal laws. The EPA is proposing this disapproval
under section 110 and part C of the Act.
DATES: Written comments must be received on or before February 10,
2016.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2015-0783, at http://www.regulations.gov or via email to
[email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The 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. The 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 Ms. Adina Wiley, (214)
665-2115, [email protected]. 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.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at the EPA
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available at either location
(e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, (214) 665-2115,
[email protected]. To inspect the hard copy materials, please
schedule an appointment with Ms. Adina Wiley or Mr. Bill Deese at 214-
665-7253.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
A. The February 6, 2012 Oklahoma SIP Submittal
On February 6, 2012, Oklahoma submitted revisions to the Oklahoma
permitting programs for approval by the EPA into the Oklahoma SIP,
including new Minor New Source Review (NSR) permitting requirements for
GHG emissions at OAC 252:100-7-2.1 and revisions to the Oklahoma PSD
program at OAC 252:100-8-31 (the definition of ``subject to
regulation'') to require PSD permits for sources solely because of GHG
emissions. In addition, the submittal included many other updates to
the Oklahoma SIP, unrelated to GHG permitting, which the EPA is
addressing in separate actions. However, today's action only addresses
the provisions for GHG permitting that are inconsistent with federal
laws.
B. The November 6, 2012 Arkansas SIP Submittal
On November 6, 2012, Arkansas submitted revisions to the Arkansas
Pollution Control and Ecology Commission's Regulations, Chapters 2, 4
and 9 for approval by the EPA into the Arkansas SIP. The EPA finalized
our approval of the submitted revisions to the Arkansas PSD program at
Regulation 19, Chapter 9 that provide the State of Arkansas with the
authority to issue PSD permits governing GHG emissions on April 2,
2013, at 63 FR 19596. The EPA finalized approval of the other parts of
the submittal on March 4, 2015, with the exception of the severable
components of the submittal at Regulation 19, Chapter 4 specific to the
Arkansas Minor NSR program, and the severable portion of the definition
of ``CO2 Equivalent Emissions'' implementing the Biomass
Deferral at Regulation 19, Chapter 2. Today's action only addresses the
severable portion of the definition of ``CO2 Equivalent
Emissions'' at Regulation 19, Chapter 2 submitted on November 6, 2012.
The EPA will address the revisions to the Arkansas Minor NSR program at
Regulation 19, Chapter 4 in a separate action, at a later date.
C. The January 8, 2013 New Mexico SIP Submittal
On January 8, 2013, New Mexico submitted regulations specific to
the New Mexico PSD permitting program for approval by the EPA into the
New Mexico SIP. The EPA finalized approval of a portion of this
submittal pertaining to plantwide applicability limits for GHGs on
December 11, 2013, at 78 FR 75253. The submittal also included
revisions to 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 CO2 emissions from bioenergy and other
biogenic stationary sources consistent with the Biomass Deferral. The
revisions to 20.2.74 NMAC to adopt the Biomass
[[Page 1142]]
Deferral that are the subject of today's rulemaking are the only
portions of the submittal remaining before the EPA for review and
approval.
D. The January 18, 2013 Oklahoma SIP Submittal
On January 18, 2013, Oklahoma submitted revisions to the Oklahoma
regulations for approval by the EPA into the Oklahoma SIP that included
provisions in the general definitions at OAC 252:100-1-3 and OAC
252:100-8-31 to defer the application of the PSD requirements to
biogenic CO2 emissions from bioenergy and other biogenic
stationary sources that are the subject of today's rulemaking. The
submittal also included many other updates to the Oklahoma SIP which
the EPA is addressing in separate actions.
II. The EPA's Evaluation
A. Oklahoma SIP Submission Addressing Permitting of GHG Emissions in
Oklahoma
On February 6, 2012, the Oklahoma Department of Environmental
Quality submitted a revision to the Oklahoma SIP that included, among
other things, provisions to regulate the emissions of GHGs in
construction permitting programs. The revisions to the Oklahoma Minor
Source Permitting Program at OAC 252:100-7-2.1 establish a mechanism
for sources in Oklahoma to take enforceable emissions limitations on
GHGs to avoid becoming a major source for GHG emissions under the
Oklahoma PSD program. The revisions to the Oklahoma PSD program at OAC
252:100-8-31 adopted a new definition of ``subject to regulation'' to
identify when emissions of GHGs would be regulated under the PSD
program. The revisions to the Oklahoma PSD program submitted were
consistent with the EPA's June 3, 2010, final rule ``Prevention of
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule''
(75 FR 31514) (hereafter referred to as the ``Tailoring Rule'').
The Tailoring Rule phased in permitting requirements for GHG
emissions from stationary sources under the CAA PSD and title V
permitting programs. In Step 1 of the Tailoring Rule, which began on
January 2, 2011, the EPA limited application of PSD and title V
requirements to sources of GHG emissions only if they were subject to
PSD or title V ``anyway'' due to their emissions of pollutants other
than GHGs. These sources are referred to as ``anyway sources.'' In Step
2 of the Tailoring Rule, which began on July 1, 2011, the PSD and title
V permitting requirements under the CAA applied to some sources that
were classified as major, and, thus, required to obtain a permit, based
solely on their GHG emissions or potential to emit GHGs, and to
modifications of otherwise major sources that required a PSD permit
because they increased only GHG emissions above the level in the EPA
regulations. We generally describe the sources covered by PSD during
Step 2 of the Tailoring Rule as ``Step 2 sources.''
On June 23, 2014, the U.S. Supreme Court issued a decision in
Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427, addressing
the application of PSD and title V permitting requirements to GHG
emissions. The U.S. Supreme Court held that the EPA may not treat GHGs
as an air pollutant for the specific purpose of determining whether a
source is a major source (or a modification thereof) and thus required
to obtain a PSD or title V 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). With respect to PSD, the ruling effectively upheld PSD
permitting requirements for GHG emissions under Step 1 of the Tailoring
Rule for ``anyway sources,'' and invalidated PSD permitting
requirements for Step 2 sources.
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the DC
Circuit) issued an Amended Judgment vacating the regulations that
implemented Step 2 of the Tailoring Rule, but not the regulations that
implement Step 1 of that rule. With respect to Step 2 sources, the DC
Circuit's amended judgment ordered that the EPA regulations under
review (including 40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v))
be vacated ``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 emissions
increase from a modification.''
The EPA promulgated a final rule on August 19, 2015, removing the
PSD permitting provisions for Step 2 sources from the federal
regulations that the DC Circuit specifically identified as vacated (40
CFR 51.166(b)(48)(v) and 52.21(b)(49)(v)). Consistent with our August
19, 2015 final rule, the EPA is proposing to disapprove the submitted
revisions at OAC 252:100-7-2.1 and OAC 252:100-8-31 that pertain to the
minor source permitting of GHGs and the PSD permitting of Step 2
sources.
B. SIP Submissions Addressing the GHG Biomass Deferral in Arkansas, New
Mexico and Oklahoma
On July 20, 2011, the EPA finalized a rulemaking entitled
``Deferral for CO2 Emissions From Bioenergy and Other
Biogenic Sources Under the Prevention of Significant Deterioration
(PSD) and Title V Programs''. (76 FR 43490) (``Biomass Deferral'').
This rule deferred (for three years) the applicability of PSD and title
V requirements CO2 emissions from biogenic sources.\1\ On
July 12, 2013, the DC Circuit, in Center for Biological Diversity v.
EPA, 722 F.3d 401, vacated the provisions of the Biomass Deferral. Due
to a series of extension requests and rehearing proceedings, the court
did not issue its mandate making the vacatur effective until August 10,
2015. However, the Biomass Deferral expired by its own terms on July
21, 2014. For both reasons, the Biomass Deferral is no longer
applicable under federal laws.
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\1\ 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 (e.g., calcium carbonate) and biologically-based
material (nonfossilized and biodegradable organic material
originating from plants, animals or micro-organisms [including
products, by-products, residues and waste from agriculture, forestry
and related industries as well as the nonfossilized and
biodegradable organic fractions of industrial and municipal wastes,
including gases and liquids recovered from the decomposition of non-
fossilized and biodegradable organic material]).
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Our analysis, available in our Technical Support Document in the
rulemaking docket, finds that the States of Arkansas, New Mexico and
Oklahoma each adopted and submitted as revisions to their respective
SIPs, provisions that were substantively consistent with the
requirements of the EPA's now-expired Biomass Deferral. However,
because the deferral expired on July 21, 2014, and the court issued its
mandate, these provisions are no longer available for use under federal
PSD regulations and should not be approved into a state's PSD SIP. For
that reason, we are proposing to disapprove these provisions.
C. Evaluation of the Submitted Revisions Under Section 110 of the CAA
The EPA has an obligation under section 110 of the CAA to act on
submitted SIP revisions unless these revisions are withdrawn by the
State. Because these provisions have not yet been withdrawn from our
consideration, the EPA has a duty to act on the
[[Page 1143]]
submitted provisions pertaining to the PSD permitting of Step 2 sources
in the Oklahoma SIP and the provisions incorporating the now-expired
Biomass Deferral into the Arkansas, New Mexico and Oklahoma SIPs. Our
proposed action today will disapprove these provisions because the
provisions are no longer valid under federal law or consistent with
federal regulations; as such, our action today will not undermine the
respective SIPs, PSD programs, or any other requirement of the CAA.
III. Proposed Action
We are proposing to disapprove severable portions of the February
6, 2012 Oklahoma SIP submittal establishing GHG permitting requirements
for minor sources and Step 2 PSD sources. The EPA has made the
preliminary determination that these revisions to the Oklahoma SIP
should be disapproved because they establish permitting requirements
that are inconsistent with federal laws. Therefore, under section 110
and part C of the Act, and for the reasons presented above, the EPA is
proposing to disapprove the following revisions:
Substantive revisions to the Oklahoma SIP establishing
Minor NSR GHG permitting requirements at OAC 252:100-7-2.1 as submitted
on February 6, 2012; and
Substantive revisions to the Oklahoma PSD program in OAC
252:100-8-31 establishing PSD permitting requirements for Step 2
sources at paragraph (E) of the definition of ``subject to regulation''
as submitted on February 6, 2012.
We are also proposing to disapprove severable portions of the
November 6, 2012 Arkansas SIP submittal, the January 8, 2013 New Mexico
SIP, and the January 18, 2013 Oklahoma SIP submittal that include the
Biomass Deferral in the Arkansas, New Mexico, and Oklahoma PSD
programs. The EPA has made the preliminary determination that these
revisions to the Arkansas, New Mexico, and Oklahoma SIPs should be
disapproved because the Biomass Deferral has expired and adoption or
implementation of these provisions is no longer consistent with federal
regulations for PSD permitting. Therefore, under section 110 and part C
of the Act, and for the reasons presented above, the EPA is proposing
to disapprove the following revisions:
Substantive revisions to the Arkansas SIP definition of
``CO2 Equivalent Emissions'' at Regulation 19, Chapter 2 to
implement the Biomass Deferral as submitted on November 6, 2012; and
Substantive revisions to the New Mexico SIP definition of
``Subject to Regulation'' at 20.2.74.7 (AZ)(2)(a) NMAC to implement the
Biomass Deferral as submitted on January 8, 2013.
Substantive revisions to the Oklahoma SIP definitions of
``carbon dioxide equivalent emissions'' at OAC 252:100-1-3 and
``subject to regulation'' at OAC 252:100-8-31 as submitted on January
18, 2013.
The EPA is proposing to disapprove the revisions listed because the
submitted provisions are no longer consistent with federal laws. There
will be no sanctions or punitive measures taken as a result of our
finalization of this proposed disapproval.
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 Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to disapprove state law as not meeting Federal
requirements for the regulation and permitting of GHG emissions.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. There is no burden imposed under the PRA because this action
proposes to disapprove submitted revisions that are no longer
consistent with federal laws for the regulation and permitting of GHG
emissions.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This action
proposes to disapprove submitted revisions that are no longer
consistent with federal laws for the regulation and permitting of GHG
emissions, and therefore will have no impact on small entities.
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 action imposes no enforceable duty on any state,
local or tribal governments or the private sector. This action proposes
to disapprove submitted revisions that are no longer consistent with
federal laws for the regulation and permitting of GHG emissions, and
therefore will have no impact on small governments.
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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action proposes to disapprove provisions of
state law that are no longer consistent with federal laws for the
regulation and permitting of GHG emissions; there are no requirements
or responsibilities added or removed from Indian Tribal Governments.
Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it disapproves state permitting
provisions that are inconsistent with federal laws for the regulation
and permitting of GHG emissions.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
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I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. This action is not subject to Executive
Order 12898 because it disapproves state permitting provisions that are
inconsistent with federal laws for the regulation and permitting of GHG
emissions.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 17, 2015.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2015-33098 Filed 1-8-16; 8:45 am]
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