[Federal Register Volume 81, Number 114 (Tuesday, June 14, 2016)]
[Proposed Rules]
[Pages 38640-38645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13303]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 49 and 52
[EPA-HQ-OAR-2015-0782; FRL-9947-31-OAR]
RIN 2060-AS56
Rescission of Preconstruction Permits Issued Under the Clean Air
Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing to
revise a limitation on the rescission of stationary source
preconstruction permits that is contained in the federal New Source
Review (NSR) regulations. This proposal would amend the EPA's federal
Prevention of Significant Deterioration (PSD) regulations to remove a
date restriction from the current permit rescission provision. Other
than removing the date restriction, the proposed rule is not intended
to alter the circumstances under which an NSR permit may be rescinded.
This proposal would also add a corresponding permit rescission
provision in the federal regulations that apply to major sources in
nonattainment areas of Indian country. This rule also proposes to
correct an outdated cross-reference to another part of the regulations.
DATES: Comments. Comments must be received on or before July 14, 2016.
Public hearing. If anyone contacts us requesting a public hearing
on or before June 20, 2016, we will hold a hearing. Additional
information about the hearing, if requested, will be published in a
subsequent Federal Register document.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2015-0782, at https://www.regulations.gov. 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, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For general information on this
proposed rule, please contact Ms. Jessica Montanez, Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency,
by phone at (919) 541-3407 or by email at [email protected]. To
request a public hearing or information pertaining to a public hearing
on this document, contact Ms. Pamela Long, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, by phone
at (919) 541-0641 or by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. How is this Federal Register document organized?
The information presented in this document is organized as follows:
I. General Information
A. How is this Federal Register document organized?
B. Does this action apply to me?
C. What should I consider as I prepare my comments for the EPA?
D. How can I find information about a possible public hearing?
E. Where can I obtain a copy of this document and other related
information?
II. Overview of Action
III. Background
IV. Proposed Revisions
A. Removal of Date Restriction
B. Discretion of the Permitting Reviewing Authority
C. Incorrect Cross Reference
D. Rescission Authority for NA NSR Permits in Indian Country
E. Rescission Authority for Other Air Permitting Programs
F. Public Notice
V. Implementation
VI. Environmental Justice Considerations
[[Page 38641]]
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
VIII. Statutory Authority
B. Does this action apply to me?
Entities potentially affected by this proposed rule include permit
reviewing authorities responsible for the permitting of stationary
sources of air pollution. This includes the EPA Regions, and both EPA-
delegated air programs and EPA-approved air programs that are operated
by state, local and tribal governments and that implement the federal
NSR rules. Entities also potentially affected by this proposed rule
include owners and operators of stationary sources that are subject to
air pollution permitting under the Clean Air Act (CAA or Act).
C. What should I consider as I prepare my comments for the EPA?
1. Submitting CBI. Do not submit this information to the EPA
through https://www.regulations.gov or email. Clearly mark the specific
information that you claim to be CBI. For CBI in a disk or CD-ROM that
you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and
then identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 Code of Federal Regulations (CFR) part 2.
2. Tips for preparing comments. When submitting comments, remember
to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions. The proposed rule may ask you to
respond to specific questions or organize comments by referencing a CFR
part or section number.
Explain why you agree or disagree, suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used to support your comment.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns
wherever possible, and suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
D. How can I find information about a possible public hearing?
To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency,
by phone at (919) 541-0641 or by email at [email protected].
E. Where can I obtain a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at https://www.epa.gov/nsr/nsr-regulatory-actions. The docket contains, among other things, a
comparison file that reflects how the proposed regulatory revisions
compare to the current rules.
II. Overview of Action
The EPA is proposing to remove a date restriction by revising the
permit rescission provision contained in its federal PSD permitting
regulations. 40 CFR 52.21(w). This current provision authorizes the
owner or operator of a stationary source that holds a PSD permit based
on rules in effect on or before July 30, 1987, to request a rescission
of their permit or a part of their permit. 40 CFR 52.21(w)(2).
Through this rulemaking action, we are proposing to remove the July
30, 1987, date from the 40 CFR 52.21(w)(2) provision. Experience has
shown that there can be circumstances where a permit based on rules in
effect after July 30, 1987, may qualify for rescissions under the
criteria in paragraph (w)(3) of the current regulations. In one recent
instance, the EPA determined a need for rescission authority after the
Supreme Court of the United States (Supreme Court) determined that PSD
permits were not required for new sources or modifications to existing
sources that only emit greenhouse gases (GHGs). However, because of the
date restriction in the current rule, the EPA had to revise the
regulation in order to enable permits to be rescinded, consistent with
the Supreme Court's ruling. Thus, the EPA is proposing to remove the
July 30, 1987, date restriction in order to eliminate the need for such
actions in the future. We believe that removal of the date is justified
to enable the rule to cover other cases where a rescission of a permit
may be appropriate under the criteria in paragraph (w)(3) of the
current permit rescission provision.
Nevertheless, the EPA still intends to limit the rescission of
permits to circumstances where the requirement for a source to meet the
conditions of a major NSR permit is no longer present. Thus, we are not
proposing to revise the criteria under which an owner or operator may
qualify for rescission of an NSR permit. However, we are proposing to
clarify that a rescission of a permit is not automatic; approval of a
request for a rescission is contingent on an applicant's adequate
demonstration that the permit is no longer needed and the permit
reviewing authority's concurrence with the demonstration. Thus, a
permit reviewing authority retains the discretion to deny a request for
a permit rescission if it determines that the eligibility criteria are
not satisfied.
We are proposing to add a similar permit rescission provision under
the major nonattainment NSR rules that apply in Indian country at 40
CFR part 49. This part of the federal NSR program currently does not
contain a provision addressing the rescission of major nonattainment
NSR permits in Indian country. This rulemaking action also proposes to
correct a cross-reference in the current rule provision.
III. Background
The major NSR program contained in parts C and D of title I of the
CAA is a preconstruction review and permitting program applicable to
new major sources and major modifications at such sources. In areas
meeting the National Ambient Air Quality Standards (NAAQS)
(``attainment areas'') or for which there is insufficient information
to determine whether the NAAQS are
[[Page 38642]]
met (``unclassifiable areas''), the NSR requirements under part C of
title I of the Act apply. We call this program the Prevention of
Significant Deterioration program. In areas not meeting the NAAQS
(``nonattainment areas''), the preconstruction permitting program is
required under part D of the CAA. We call this program the
Nonattainment NSR (NA NSR) program. Collectively, we also commonly
refer to these two programs as the major NSR program. These rules are
contained in 40 CFR 51.165, 51.166, 52.21 and 52.24 and 40 CFR part 51,
appendices S and W.\1\ The CAA also requires that State Implementation
Plans (SIP) include measures to assure that achievement of the NAAQS is
not impeded by construction of other sources that are not subject to
the major NSR requirements. We call this program ``minor NSR.''
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\1\ In addition, the major NA NSR rules that apply in Indian
country can be found at 40 CFR part 49.
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While the CAA establishes requirements for the permitting of
construction of new major sources or modifications of such sources, it
does not specify how long a permit is to remain in effect or whether
there are circumstances under which an NSR permit may be invalidated or
rescinded. See, e.g., CAA section 165. The EPA has interpreted this
silence to mean that an NSR permit should remain in effect for as long
as the new or modified source continues to operate. However, the
absence of a statutory provision on the continuing viability of and
need for a permit does not suggest that the EPA lacks the authority and
discretion to rescind a permit under some circumstances, such as when a
final court ruling clarifies the meaning of some part of the CAA. Over
the years, the EPA has used this authority and discretion to rescind
permits under limited circumstances.
40 CFR 52.21(w) authorizes an owner or operator of a source to
request, and the EPA Administrator \2\ to grant, a rescission of a PSD
permit if the owner or operator shows that the PSD regulations do not
apply.
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\2\ The rescission regulation at 40 CFR 52.21(w) is intended to
be a delegable authority. The use of the term ``Administrator'' in
our regulations is not intended to impede delegation. For example,
for federally-issued permits, since the EPA Regional offices issue
the permits in their jurisdictions, rescission authority is
typically delegated--usually to either an EPA Regional Administrator
or Division Director.
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The original intent of the 40 CFR 52.21(w) provision was to create
a means by which a limited category of sources that received a permit
under the EPA's 1978 PSD regulations could be relieved of the
requirements of their permits, after the United States Court of Appeals
for the District of Columbia Circuit (D.C. Circuit) determined that
portions of those regulations were inconsistent with the CAA. The
sources in question were ones that would no longer be considered
``major'' under our 1980 amendments to the PSD regulations, which were
promulgated in response to the D.C. Circuit Court ruling.\3\ The
original paragraph (w) only applied to permits issued under the
regulations in effect between June 19, 1978 (the date the first PSD
regulations were published in the Federal Register), and August 7, 1980
(the effective date of the PSD amendments that included the new
paragraph (w)).
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\3\ August 7, 1980, 45 FR 52676.
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In 1987, the EPA revised 40 CFR 52.21(w) to change the effective
date requirement to apply to permits that were issued based on rules in
effect on or before July 30, 1987. See 52 FR 24672, 24689 (July 1,
1987). The EPA made this revision in concert with its amendments to the
NAAQS for particulate matter (PM), which, among other things,
transitioned the PM pollution indicator from total suspended particles
to PM10. This revision of 40 CFR 52.21(w) effectively
enabled rescission authority to apply to sources and modifications that
were no longer major using the new PM10 indicator. Thus, the
July 30, 1987, date stipulation that remains in 40 CFR 52.21(w) is an
artifact of the 1987 regulatory revisions to transition to the revised
PM10 indicator.
Following the changes made in 1987, 40 CFR 52.21(w) remained
unchanged until almost three decades later when the EPA revised 40 CFR
52.21(w), in response to a Supreme Court decision, to expressly allow
rescission of permits granted for sources based solely on the emissions
of GHGs.\4\ See May 7, 2015; 80 FR 26183. This 2015 regulatory action
did not revise or remove the July 30, 1987, date, but was a targeted
effort to expeditiously authorize the rescission of PSD permits that
were required solely based on GHG emissions.
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\4\ The Supreme Court determined that the EPA may not treat GHGs
as an air pollutant for purposes of determining whether a source is
a major source (or a modification thereof) required to obtain a PSD
permit. UARG v. EPA, 134 S. Ct. 2427 (2014). In accordance with the
Supreme Court decision, on April 10, 2015, the D.C. Circuit issued
an amended judgment vacating portions of the particular provisions
of the EPA's regulations implementing the EPA's PSD and Title V GHG
Tailoring Rule. On August 19, 2015, the EPA amended its PSD
regulations to remove from the Code of Federal Regulations portions
of those regulations that the D.C. Circuit specifically identified
as vacated.
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However, in the preamble to that 2015 rule, the EPA signaled its
intent to undertake a subsequent rulemaking action to apply the permit
rescission provision to permits issued after July 30, 1987, and to
eliminate the need to conduct targeted rulemakings in the future. 80 FR
26186.
The current regulations require that the Administrator provide
adequate public notice of the final permit rescission determination.
Thus, the provision does not require that the EPA provide advance
notice of the permit rescission determination. However, we believe that
public notice and comment procedures--similar to those used when
proposing a draft permit--may be appropriate in certain circumstances.
This could occur when a permit rescission determination is not
straightforward (e.g., possible differences in interpretation over the
change in the law that is the basis for the rescission request) or when
there is increased public interest in the facility requesting a permit
rescission. In these cases, while prior notice of the permit rescission
determination is not required, the permit reviewing authority has
discretion to provide notice of the rescission and to solicit comment
(e.g., by way of a public announcement or public hearing) before
finalizing a permit rescission determination. Having this additional
public input could be very important if the rescission is controversial
in nature. This is consistent with the approach the EPA has recommended
recently in guidance on permit extensions.\5\
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\5\ Memorandum from Stephen D. Page, Director, Office of Air
Quality Planning and Standards, Guidance on Extension of Prevention
of Significant Deterioration (PSD) Permits under 40 CFR 52.21(r)(2)
(January 31, 2014). https://www.epa.gov/sites/production/files/2015-07/documents/extend14.pdf.
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Furthermore, the EPA interprets 40 CFR 124.15 of its regulations to
apply to a number of PSD permit actions, including permit
rescissions.\6\ Thus, a decision to rescind a PSD permit is a ``final
permit decision'' under 40 CFR 124.15. As a result, under 40 CFR
124.19, a decision to rescind a permit under 40 CFR 52.21(w) is subject
to review by the EPA's Environmental Appeals Board. After this appeal
procedure is exhausted, a permit rescission determination may, under
CAA 307(b)(1), be subject to judicial review in the United States Court
of Appeals for the appropriate circuit.
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\6\ 40 CFR 124.15(a) uses the term ``terminate,'' which is
synonymous with a rescission of a permit.
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IV. Proposed Revisions
These proposed revisions are intended to provide greater
flexibility and clarity for improved
[[Page 38643]]
implementation of the permit rescission provision. The specific
proposed changes are explained in this section, and we are requesting
comment on all aspects of this proposal.
A. Removal of Date Restriction
In this action, the EPA proposes to remove the date restriction of
July 30, 1987, from the current 40 CFR 52.21(w) provision. This
approach is consistent with our recent rule to authorize rescission of
specific types of permits issued after July 30, 1987, in response to a
decision by the Supreme Court regarding GHGs. If the EPA finalizes this
proposed revision, rescission authority would extend to PSD permits
issued after this date when the applicant shows that the requirements
of 40 CFR 52.21 ``would not apply to the source or modification.'' In
addition, the specific language in paragraphs (w)(2) and (w)(3) that
the EPA added in 2015 to accommodate the rescission of certain types of
GHG PSD permits would no longer be required, so we are concurrently
proposing in this action to delete the GHG permit rescission language
adopted in the 2015 rulemaking.
As explained in the ``Background'' section of this preamble, the
creation of the original rescission provision was aimed at addressing a
specific need with regard to responding to the D.C. Circuit Court
decision in Alabama Power.\7\ In 1987, the EPA recognized another
circumstance in which rescission of permits may be justified--the
change of the PM indicator to PM10. In 2015, the EPA
identified an additional need to extend the rescission authority beyond
its original scope after the Supreme Court decision regarding GHGs.
Thus, over the years, the EPA has periodically found a need to expand
the rescission provision through a regulatory action beyond its
original scope as new circumstances have arisen. These and other
experiences since 1980 have shown that there is a periodic need to
utilize PSD permit rescission authority. We would expect this pattern
to continue in the event of additional court decisions that narrow the
scope of sources required to obtain a PSD permit. Where a source
obtained a PSD permit in reliance on the EPA regulations that a court
subsequently determined to be unnecessary or inappropriate, the EPA
would expect to conclude that 40 CFR 52.21 ``would not apply to the
source or modification.'' Furthermore, the EPA recognizes there could
be circumstances not previously considered by the EPA that may lead a
source to request a rescission of their permit and a permit reviewing
authority to grant the request.
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\7\ Alabama Power Company v. Costle, 606 F.2d 1068 (D.C. Cir.
1979), modified, 636 F.2d 323 (D.C. Cir. 1979).
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The EPA is not proposing to change the criteria under which an
owner or operator may qualify for rescission of an NSR permit. Requests
for permit rescission are very case-specific and require an in-depth
evaluation of the source, the rules in place at the time, and the court
decisions or other events affecting the source before it can be shown
that the requirements of 40 CFR 52.21 ``would not apply to the source
or modification.''
Thus, we are proposing to eliminate the date restriction so that
the EPA--and other permitting authorities that implement 40 CFR
52.21(w)--may in the future consider, on a case-by-case basis, whether
a source that requests a permit rescission is eligible for rescission
of its permit. The regulatory change we are proposing is limited in
nature, and the EPA continues to believe that rescission is appropriate
only in limited circumstances. This is because the EPA views the role
of the NSR program to authorize the construction and initial operation
of a source or a modification and, assuming the source was constructed
as originally permitted, there should be very few cases in which the
original authorization should be rescinded.
B. Discretion of the Permitting Reviewing Authority
While we are proposing to retain the criteria under which a
rescission is authorized, we are also proposing to clarify that the
rescission of a permit requires an exercise of discretion by the permit
reviewing authority. In this action, the EPA proposes to revise 40 CFR
51.21(w)(3) to make it clear that the provision does not create a
mandatory duty on the Administrator to grant a rescission request.
The 1980 preamble speaks of the EPA needing ``adequate information
with which to make a sound decision'' to rescind a permit. It also
states that it ``will have the expertise and objectivity necessary to
check adequately whether the permittee has applied the intricate
applicability rules correctly.'' August 7, 1980; 45 FR 52682. Thus, the
responsible authority at the permitting agency has always had the
authority to grant or deny a rescission request based on an analysis of
the request for a permit rescission and a determination of whether it
is appropriate to grant or deny the request to rescind the permit. The
EPA believes that it is appropriate to view the existing 40 CFR
52.21(w)(3) provision as a whole, including the last phrase ``. . . if
the application shows that this section would not apply to the source
or modification.'' We believe that the second phrase conditions the
first phrase (``The Administrator shall grant an application for
rescission'') on the fact that an adequate demonstration must be made
by the permit applicant.
Thus, the EPA is proposing to replace the word ``shall'' with the
word ``may'' in this provision, without making any other revision to 40
CFR 52.21(w)(3). This revision is intended to make clear that the
Administrator may deny a permit rescission request if he or she does
not concur with the analysis by the permit applicant that 40 CFR 52.21
``would not apply to the source or modification.'' The EPA does not
believe this changes the meaning or intent of the existing provision,
but rather clarifies the approvability of the request by the
Administrator.
C. Incorrect Cross Reference
We are proposing to correct the first paragraph of (w), which has
an incorrect cross reference. Paragraph (w)(1) currently references 40
CFR 52.21 paragraph (s), but 40 CFR 52.21(s) pertains to environmental
impact statements and does not address the expiration of a permit.
We are therefore proposing to revise the reference in paragraph
(w)(1) to refer to paragraph (r), which addresses permit expiration. 40
CFR 52.21(r)(2)
D. Rescission Authority for NA NSR Permits in Indian Country
This action also proposes to add a provision to 40 CFR 49.172 to
provide rescission authority for major NA NSR permits in Indian
country. The EPA proposes that the provision added to 40 CFR 49.172
would be similar to the provision at 40 CFR 52.21(w) and would reflect
the public notice requirements included in that rule. The EPA believes
it is appropriate to allow rescission of NA NSR permits in Indian
country in limited, case-specific circumstances for the same reasons it
is appropriate to allow rescission of PSD permits in narrow
circumstances.
Creating a rescission provision in 40 CFR part 49 for major NA NSR
permits in Indian country would ensure that all federal programs for
major source permitting have rescission authority. PSD permits issued
to sources in Indian country are federal permits and consequently
subject to 40 CFR 52.21, so they would be subject to the same revisions
to 40 CFR 52.21 that are being proposed in this action.
[[Page 38644]]
E. Rescission Authority for Other Air Permitting Programs
In the case of sources in the Outer Continental Shelf (OCS), the
EPA's OCS air regulations at 40 CFR 55 establish the applicable
requirements, which include federal air pollution preconstruction
permit requirements. 40 CFR part 55 refers to rescinding a
preconstruction permit issued to an OCS source and incorporates by
reference 40 CFR 52.21. Thus, any regulatory revisions to 40 CFR
52.21(w) would automatically apply to applicable permit requirements
incorporated in part 55. See 40 CFR 55.6(b)(5) and 55.13(d). As a
result, the EPA does not see a need to revise the Part 55 permitting
regulations.
While the EPA's regulations for SIP-approved programs in 40 CFR
51.165 and 51.166 do not include provisions for permit rescissions, we
have previously stated that we would approve such provisions if states
were to adopt them.\8\ In addition, this rule is not intended to alter
minor source construction permit requirements that may apply in the
place of major NSR permit conditions that are no longer applicable to a
source modification.
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\8\ See August 7, 1980; 45 FR 52686 and 52688.
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Consequently, we are proposing that the rules on rescinding
preconstruction permits would only reside in the federal major NSR
program rules at 40 CFR parts 49 and 52 (and, by extension, part 55 as
noted previously). The EPA has previously explained that other permit
reviewing authorities are free to adopt our rescission rule provisions
or propose their own and request approval by the EPA.
F. Public Notice
We note that a forthcoming EPA rule has proposed to amend the
second sentence of paragraph (w)(4) of 40 CFR 52.21 to remove the
mandatory newspaper notice requirement and to require electronic
noticing of rescission determinations. See December 29, 2015; 80 FR
81234. We are not taking comment on these separately proposed revisions
to paragraph (w)(4) of 40 CFR 52.21 in this rule proposal, and we
direct the reader to that separate rulemaking for further information
with regard to the noticing of permit rescissions. In this action, the
EPA is not proposing to revise 40 CFR 52.21(w)(4) in the permit
rescission provision.
V. Implementation
Upon promulgating this action, the rule would become effective
within 30 days for permit reviewing authorities that implement the
federal program rules at 40 CFR parts 49 and 52. This includes the EPA
Regions and other permit reviewing authorities that are delegated
authority by the EPA to issue PSD permits on behalf of the EPA (via a
delegation agreement) and permit reviewing authorities that have their
own PSD rules approved by the EPA in a SIP and the SIP incorporates by
reference 40 CFR 52.21(w) and automatically updates when the federal
rules are amended. Since this action is not amending 40 CFR part 51,
there are no implementation requirements for permit reviewing
authorities that implement the part 51 regulations through an approved
SIP.
VI. Environmental Justice Considerations
We do not believe that these proposed revisions and additions to
the rescission of federal major NSR permits would have any effect on
environmental justice communities.
VII. Statutory and Executive Order Reviews
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 any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control numbers 2060-0003 for the PSD and NA NSR permit programs. We
believe that the burden associated with rescinding federal NSR permits
is already accounted for under the approved information collection
requests.
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. Entities
potentially affected directly by this proposal include state, local and
tribal governments, and none of these governments would qualify as a
small entity. Other types of small entities are not directly subject to
the requirements of this action.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded federal 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.
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. Specifically, these proposed revisions do not
affect the relationship or distribution of power and responsibilities
between the federal government and Indian tribes. Thus, Executive Order
13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health 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 does not concern an environmental
health risk or safety risk.
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.
I. National Technology Transfer and Advancement Act
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
[[Page 38645]]
action will not have potential disproportionately high and adverse
human health or environmental effects on minority, low-income or
indigenous populations because it does not affect the level of
protection provided to human health or the environment.
VIII. Statutory Authority
The statutory authority for this action is provided by 42 U.S.C.
7401, et seq.
List of Subjects
40 CFR Part 49
Environmental protection, Administrative practice and procedure,
Air pollution control
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference.
Dated: May 27, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT
0
1. The authority citation for part 49 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart C--General Federal Implementation Plan Provisions
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2. Section 49.172 is amended by adding paragraph (f) to read as
follows:
Sec. 49.172 Final permit issuance and administrative and judicial
review.
* * * * *
(f) Can my permit be rescinded?
(1) Any permit issued under this section or a prior version of this
section shall remain in effect until it is rescinded under this
paragraph.
(2) An owner or operator of a stationary source or modification who
holds a permit issued under this section for the construction of a new
source or modification that meets the requirement in paragraph (f)(3)
of this section may request that the reviewing authority rescind the
permit or a particular portion of the permit.
(3) The reviewing authority may grant an application for rescission
if the application shows that this section would not apply to the
source or modification.
(4) If the reviewing authority rescinds a permit under this
paragraph, the public shall be given adequate notice of the rescission
determination in accordance with one or more of the following methods:
(i) The reviewing authority may mail or email a copy of the notice
to persons on a mailing list developed by the reviewing authority
consisting of those persons who have requested to be placed on such a
mailing list.
(ii) The reviewing authority may post the notice on its Web site.
(iii) The reviewing authority may publish the notice in a newspaper
of general circulation in the area affected by the source. Where
possible, the notice may also be published in a Tribal newspaper or
newsletter.
(iv) The reviewing authority may provide copies of the notice for
posting at one or more locations in the area affected by the source,
such as Post Offices, trading posts, libraries, Tribal environmental
offices, community centers or other gathering places in the community.
(v) The reviewing authority may employ other means of notification
as appropriate.
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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3. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--General Provisions
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4. Section 52.21 is amended by revising paragraphs (w)(1) through (3)
to read as follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
* * * * *
(w) * * *
(1) Any permit issued under this section or a prior version of this
section shall remain in effect, unless and until it expires under
paragraph (r) of this section or is rescinded under this paragraph.
(2) An owner or operator of a stationary source or modification who
holds a permit issued under this section for the construction of a new
source or modification that meets the requirement in Sec. 52.21
paragraph (w)(3) may request that the Administrator rescind the permit
or a particular portion of the permit.
(3) The Administrator may grant an application for rescission if
the application shows that this section would not apply to the source
or modification.
* * * * *
[FR Doc. 2016-13303 Filed 6-13-16; 8:45 am]
BILLING CODE 6560-50-P