[Federal Register Volume 77, Number 194 (Friday, October 5, 2012)]
[Rules and Regulations]
[Pages 60907-60910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24341]



40 CFR Part 52

[EPA-R01-OAR-2011-0453, FRL-9736-5]

Approval and Promulgation of Implementation Plans; Vermont: 
Prevention of Significant Deterioration; Greenhouse Gas Permitting 
Authority and Tailoring Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is approving revisions to the Vermont State Implementation 
Plan (SIP), submitted by the Vermont Department of Environmental 
Conservation (VT DEC) Air Pollution Control Division to EPA on February 
14, 2011. The SIP revision modifies Vermont's Prevention of Significant 
Deterioration (PSD) program to establish appropriate emission 
thresholds for determining which new stationary sources and 
modification projects become subject to Vermont's PSD permitting 
requirements for their greenhouse gas (GHG) emissions. EPA proposed 
approval of these regulatory revisions on August 16, 2012, and received 
no comments. This action affects major stationary sources in Vermont 
that have GHG emissions above the thresholds established in the PSD 

DATES: Effective Date: This rule is effective on November 5, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-2011-0453. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the U.S. Environmental Protection Agency, EPA New England 
Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, 
and Indoor Programs Unit, 5 Post Office Square--Suite 100, Boston, MA. 
EPA requests that if at all possible, you contact the person listed in 
the FOR FURTHER INFORMATION CONTACT section for further information. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Vermont 
SIP, contact Donald Dahl, U.S. Environmental Protection Agency, EPA New 
England Regional Office, Office of Ecosystem Protection, Air Permits, 
Toxics, and Indoor Programs Unit, 5 Post Office Square--Suite 100, 
(mail code OEP05-2), Boston, MA 02109--3912. Mr. Dahl's telephone 
number is (617) 918-1657; email address: dahl.donald@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What is the background for this action?
II. What comments did EPA receive?
III. What is the effect of this action?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

[[Page 60908]]

I. What is the background for this action?

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action on 
the Vermont 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,\1\ the ``Johnson 
Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' \3\ and 
the ``Tailoring Rule.'' \4\ Taken together and in conjunction with the 
Clean Air Act (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.

    \1\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \2\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \4\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 

    Recognizing that some 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 tons per year of GHG, and do not limit PSD applicability to 
GHGs to the higher thresholds in the Tailoring Rule, EPA published a 
final rule on December 30, 2010, narrowing its previous approval of PSD 
programs as applicable to GHG-emitting sources in SIPs for 24 states, 
including Vermont (PSD Narrowing Rule).\5\ In the PSD Narrowing Rule, 
EPA withdrew its approval of Vermont's SIP, among other SIPs, to the 
extent that SIP applies PSD permitting requirements to GHG emissions 
from sources emitting at levels below those set in the Tailoring Rule. 
As a result of the Narrowing Rule, Vermont's approved SIP provided the 
state with authority to regulate GHGs, but only at and above the 
Tailoring Rule thresholds, and required new and modified sources to 
receive a PSD permit based on GHG emissions only if they emitted at or 
above the Tailoring Rule thresholds.

    \5\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans.'' 75 FR 82536 (December 30, 2010).

    On February 14, 2011, in response to the Tailoring Rule and earlier 
GHG-related EPA rules, VT DEC submitted a revision to EPA for approval 
into the Vermont SIP to establish appropriate emission thresholds for 
determining which new or modified stationary sources become subject to 
PSD permitting requirements for GHG emissions. Subsequently, on August 
16, 2012 (77 FR 49404), EPA published a proposed approval of this SIP 
submittal. Specifically, Vermont's February 14, 2011 SIP revision 
establishes appropriate emissions thresholds for determining PSD 
applicability to new and modified GHG-emitting sources in accordance 
with EPA's Tailoring Rule. Detailed background information and EPA's 
rationale for the proposed approval are provided in EPA's August 16, 
2012, Federal Register action.

II. What comments did EPA receive?

    The public comment period on the proposed approval of Vermont's SIP 
revision ended on September 17, 2012. EPA did not receive any comments 
on the proposed approval of this SIP revision.

III. What is the effect of this action?

    Final approval of Vermont's February 14, 2011 SIP revision 
incorporates changes to the state's rules to establish the GHG emission 
thresholds for PSD applicability set forth in EPA's Tailoring Rule, 
confirming that smaller GHG sources emitting less than these thresholds 
will not be subject to PSD permitting requirements under the approved 
Vermont SIP. EPA has determined the SIP revision approved by today's 
action is consistent with EPA's regulations, including the Tailoring 
Rule. Furthermore, EPA has determined this SIP revision is consistent 
with section 110 of the CAA; therefore, EPA is approving this revision 
into Vermont's SIP.
    As a result of today's action approving Vermont's incorporation of 
the appropriate GHG permitting thresholds into its SIP, paragraph 40 
CFR 52.2372(b), as included in EPA's PSD Narrowing Rule, is no longer 
necessary.\6\ Thus, today's action also amends 40 CFR 52.2372 to remove 
this unnecessary regulatory language.

    \6\ 40 CFR 52.2372(b) codifies EPA's limiting its approval of 
Vermont's PSD SIP to not cover the applicability of PSD to GHG-
emitting sources below the Tailoring Rule thresholds.

IV. What action is EPA taking?

    Pursuant to section 110 of the CAA, EPA is approving Vermont's 
February 14, 2011 SIP revision, relating to PSD requirements for GHG-
emitting sources. Our approval includes amendments to Subchapter I as 
follows: new definitions of ``Greenhouse Gases'' and ``Subject to 
Regulation,'' amendments to the definition of ``Major Stationary 
Source,'' and the addition of a provision regarding significance levels 
of greenhouse gases to the definition of ``Significant.'' \7\ For 
federal purposes, EPA is adopting the interpretations of Vermont's use 
of the terms ``Greenhouse Gases,'' ``Subject to Regulation,'' and its 
incorporation by reference of various federal regulations, as set forth 
in our proposed approval. See 77 FR 49407. EPA is also approving the 
classification of certain sources of greenhouse gas emissions as air 
contaminant sources in Subchapter IV, section 5-401(16).

    \7\ As we noted in the proposed rulemaking, the definition of 
``Significant'' in Vermont's SIP revision lacks significance 
thresholds for several non-GHG pollutants, but we are approving the 
revised definition as ``SIP strengthening.'' See 77 FR 49407.

    These revisions establish appropriate emissions thresholds for 
determining PSD applicability with respect to new or modified GHG-
emitting stationary sources in accordance with EPA's June 3, 2010, 
Tailoring Rule. With this approval, EPA also amends 40 CFR 52.2372 by 
removing subsection (b).
    EPA has made the determination this SIP revision is approvable 
because it is in accordance with the CAA and EPA regulations regarding 
PSD permitting for GHGs. The detailed rationale for this action is set 
forth in the proposed rulemaking referenced above, and in this final 

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
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 Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 

[[Page 60909]]

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.
    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. EPA will submit a report containing this action 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. 
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 4, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Intergovernmental relations, Reporting and recordkeeping 

    Authority: 42 U.S.C. 7401 et seq.

    Dated: September 24, 2012.
 H. Curtis Spalding,
Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:


1. The authority citation for part 52 continues to read as follows:

     Authority:  42 U.S.C. 7401 et seq.

Subpart UU--Vermont

2. Sec.  52.2370(c) the Table ``EPA-Approved Vermont Regulations'' is 
amended by:
a. Revising entries to state citations for Section 5-101 and 5-401.
b. Adding footnote 1.
    The revisions and addition read as follows.

Sec.  52.2370  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Vermont Regulations
         State citation             Title/subject       effective     EPA approval date        Explanations
                                                          date               \1\
                                                  * * * * * * *
Section 5-101..................  Definitions.......        2/8/2011  10/5/2012, [Insert  Added definitions of
                                                                      Federal Register    ``Greenhouse Gases''
                                                                      page number where   and ``Subject to
                                                                      the document        Regulation,'' amended
                                                                      begins].            definition of ``Major
                                                                                          Stationary Source,''
                                                                                          added significance
                                                                                          level for greenhouse
                                                                                          gases to the
                                                                                          definition of
                                                  * * * * * * *
Section 5-401..................  Classification of         2/8/2011  10/5/2012, [Insert  Added certain sources
                                  air contaminant                     Federal Register    of greenhouse gas
                                  sources.                            page number where   emissions to the list
                                                                      the document        of air contaminant
                                                                      begins].            sources
                                                  * * * * * * *
\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

[[Page 60910]]

* * * * *

3. Section 52.2372 is amended by removing and reserving paragraph (b).

[FR Doc. 2012-24341 Filed 10-4-12; 8:45 am]