[Federal Register Volume 81, Number 209 (Friday, October 28, 2016)]
[Rules and Regulations]
[Pages 74923-74925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25992]
[[Page 74923]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2016-0450; FRL-9953-94-Region 6]
Approval and Promulgation of Implementation Plans; Louisiana;
Prevention of Significant Deterioration Significant Monitoring
Concentration for Fine Particulates
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving two
revisions to the Louisiana State Implementation Plan (SIP) that revise
the Louisiana Prevention of Significant Deterioration (PSD) permitting
program to establish the significant monitoring concentration (SMC) for
fine particles (PM2.5) at a zero microgram per cubic meter
(0 [mu]g/m\3\) threshold level consistent with federal permitting
requirements. The EPA is approving this action under section 110 and
part C of the Clean Air Act (CAA or Act).
DATES: This rule is effective on December 27, 2016 without further
notice, unless the EPA receives relevant adverse comment by November
28, 2016. If the EPA receives such comment, the EPA will publish a
timely withdrawal in the Federal Register informing the public that
this rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0450, 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 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 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: 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 ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
A. CAA and SIPs
Section 110 of the CAA requires states to develop and submit to the
EPA a SIP to ensure that state air quality meets National Ambient Air
Quality Standards. These ambient standards currently address six
criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead,
particulate matter, and sulfur dioxide. Each federally-approved SIP
protects air quality primarily by addressing air pollution at its point
of origin through air pollution regulations and control strategies. The
EPA approved SIP regulations and control strategies are federally
enforceable.
B. Prior Federal Action
Under Section 165(a) of the CAA, a major source may not commence
construction unless the source has been issued a permit and has
satisfied certain requirements. Among those requirements, the permit
applicant must demonstrate that emissions from construction or
operation of the facility will not cause, or contribute to, air
pollution in excess of any increment, NAAQS, or any other applicable
emission standard of standard of performance. This statutory
requirement has been incorporated into federal regulations at 40 CFR
51.166(k)(1). Moreover, to support this analysis, PSD permit
applications must be supported by air quality monitoring data
representing air quality in the area affected by the proposed source
for the 1-year period preceding receipt of the application. This
statutory requirement has been incorporated into federal regulations at
40 CFR 51.166(m)(ii)-(iv).
In 2010, the EPA promulgated regulations for SIPs concerning PSD
permitting for PM2.5 which included two voluntary screening
tools: S ignificant impact levels (SILs) and SMC. 75 FR 64864 (October
20, 2010). The SILs are screening tools that states and local
permitting authorities with PSD SIPs apply in the issuance of a PSD
permit to demonstrate that the proposed source's allowable emissions
will not cause or contribute to a violation of the NAAQS or increment.
The SMC is a screening technique that has been used to exempt sources
from the requirement in the CAA to collect preconstruction monitoring
data for up to 1 year before submitting a permit application in order
to help determine existing ambient air quality. 78 FR 73699 (December
9, 2013).
Sierra Club filed a petition for review of the PSD regulations
containing the PM2.5 SILs and SMC with the United States
Court of Appeals for the District of Columbia Circuit (the Court). On
January 22, 2013, the Court issued an opinion granting a request from
the EPA to vacate and remand to the EPA portions of the October 20,
2010, PSD regulations establishing the PM2.5 SIL and further
vacating the portions of the PSD regulations establishing a
PM2.5 SMC. See, Sierra Club v. EPA, 706 F.3d 428 (D.C. Cir.
2013).
In response to the Court's decision, the EPA amended its
regulations to remove the affected PM2.5 SIL regulations
from the federal regulations and to replace the existing
PM2.5 SMC value with a ``zero'' threshold. 78 FR 73698
(December 9, 2013). In that rulemaking, the EPA removed the regulatory
text related to the affected PM2.5 SILs at sections
51.166(k)(2) and 52.21(k)(2). Although the Court vacated the
PM2.5 SMC provisions in 40 CFR 51.166(i)(5)(i)(c) and
52.21(i)(5)(i)(c), the EPA did not remove the affected regulatory text,
but instead revised the concentration for the PM2.5 SMC
listed in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero
micrograms per cubic meter (0 [micro]g/m\3\). Because 40 CFR
51.166(i)(5)(iii) and 40 CFR 52.21(i)(5)(iii) establish an exemption
from air monitoring requirements for any pollutant ``not listed in
paragraph (i)(5)(i),'' the EPA explained that it would not be
appropriate to remove the reference to PM2.5 in paragraph
(i)(5)(i). Were the EPA to completely remove PM2.5 from the
list of pollutants in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c)
of the PSD regulations, PM2.5 would no longer be a listed
pollutant and the paragraph (iii)
[[Page 74924]]
provision could be interpreted as giving reviewing authorities the
discretion to exempt permit applicants from the requirement to conduct
monitoring for PM2.5, in contravention of the Court's
decision and the CAA. Instead, the EPA revised the concentration listed
in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms
per cubic meter (0 [micro]g/m\3\). This means that there is no air
quality impact level below which a reviewing authority has the
discretion to exempt a source from the PM2.5 monitoring
requirements at 40 CFR 52.21(m).
C. Louisiana's Submittals
On February 27, 2013, Louisiana submitted revisions to its PSD SIP
at LAC 33:III.509 that adopted provisions substantively identical to
the EPA PSD SIP's requirement for PM2.5 PSD SMC. 40 CFR
51.166(i)(5)(i). The February 27, 2013, submittal included other
revisions to the Louisiana SIP that have been separately approved by
the EPA on November 5, 2015. See 80 FR 68451. On July 22, 2016,
Louisiana submitted revisions to its PSD SIP at LAC 33:III.509 to
revise the previously adopted and submitted PM2.5 SMC at LAC
33:III.509(I)(5)(a). Louisiana has not adopted or submitted provisions
addressing the PM2.5 SIL.
II. The EPA's Evaluation
Our analysis, available in our Technical Support Document (TSD) in
the rulemaking docket, finds that the State of Louisiana adopted and
submitted on February 27, 2013, revisions to the Louisiana SIP that
were substantively consistent with the voluntary exemptions from PSD
monitoring at 40 CFR 51.166(i)(5)(i) promulgated on October 20, 2010.
Subsequent to the submittal of these provisions, the Court vacated and
remanded these provisions to the EPA. On December 9, 2013, we
promulgated revisions to the PSD SIP rules that replaced the existing
PM2.5 SMC value with a zero micrograms per cubic meter (0
[micro]g/m\3\) threshold level at 40 CFR 51.166.
To address the EPA's December 9, 2013, rulemaking, the State of
Louisiana submitted further revisions to the Louisiana PSD program on
July 22, 2016, setting the PM2.5 SMC to zero; effectively
removing any exemption from pre- and post-construction monitoring under
the Louisiana PSD SIP.
Our evaluation of the Louisiana PSD program finds that the adoption
and revision of the PSD PM2.5 SMC at a zero threshold value
is consistent with federal PSD permitting provisions for PSD SMCs. We
further find that the Louisiana PSD program does not provide an
exemption from the PSD pre- and post-construction monitoring
requirements for emissions of PM2.5 that are SIP-approved at
LAC 33:III.509(M) as consistent with federal PSD permitting provisions.
III. Final Action
We are approving revisions to the Louisiana PSD program into the
Louisiana SIP that establish the PSD PM2.5 SMC and set the
SMC to zero micrograms per cubic meter (0 [micro]g/m\3\) consistent
with federal PSD permitting requirements and the CAA. Specifically, the
EPA is approving the following revisions to the Louisiana PSD SIP:
New provisions at LAC 33:III.509(I)(5)(a) adopted on
December 20, 2012 and submitted on February 27, 2013, establishing the
PM2.5 SMC;
Revisions to LAC 33:III.509(I)(5)(a), adopted on March 20,
2016 and submitted on July 22, 2016 setting the PM2.5 SMC to
0 [mu]g/m\3\.
The EPA is publishing this rule without prior proposal because we
view this as a non-controversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if relevant adverse
comments are received. This rule will be effective on December 27, 2016
without further notice unless we receive relevant adverse comment by
November 28, 2016. If we receive relevant adverse comments, we will
publish a timely withdrawal in the Federal Register informing the
public that the rule will not take effect. We will address all public
comments in a subsequent final rule based on the proposed rule. We will
not institute a second comment period on this action. Any parties
interested in commenting must do so now. Please note that if we receive
relevant adverse comment on an amendment, paragraph, or section of this
rule and if that provision may be severed from the remainder of the
rule, we may adopt as final those provisions of the rule that are not
the subject of an adverse comment.
IV. Incorporation by Reference
In this rule, we are finalizing regulatory text that includes
incorporation by reference. In accordance with the requirements of 1
CFR 51.5, we are finalizing the incorporation by reference of the
revisions to the Louisiana regulations as described in the Final Action
section above. We have made, and will continue to make, these documents
generally available electronically through www.regulations.gov and/or
in hard copy at the EPA Region 6 office.
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 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 approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a
[[Page 74925]]
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications and will not impose substantial direct
costs on tribal governments or preempt tribal law as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 27, 2016. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: October 21, 2016.
Ron Curry,
Regional Administrator, Region 6.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart T--Louisiana
0
2. In Sec. 52.970(c), the table titled ``EPA Approved Louisiana
Regulations in the Louisiana SIP'' is amended by revising the entry for
Section 509 to read as follows:
Sec. 52.970 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Louisiana Regulations in the Louisiana SIP
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State approval
State citation Title/subject date EPA approval date Comments
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* * * * * * *
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Chapter 5--Permit Procedures
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* * * * * * *
Section 509................... Prevention of 03/20/2016 10/28/2016, [Insert SIP does not include
Significant Federal Register provisions for
Deterioration. citation]. permitting of GHGs
as effective on 04/
20/2011 at LAC
33:III.509(B)
definition of
``carbon dioxide
equivalent
emissions'',
``greenhouse
gases'', ``major
stationary source'',
and ``significant''.
* * * * * * *
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[FR Doc. 2016-25992 Filed 10-27-16; 8:45 am]
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