[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]
[Proposed Rules]
[Pages 70248-70255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27155]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 69
[EPA-R09-OAR-2013-0697; FRL-9902-75-Region 9]
Approval and Promulgation of Implementation Plans; Commonwealth
of the Northern Mariana Islands; Prevention of Significant
Deterioration; Special Exemptions From Requirements of the Clean Air
Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Under the Clean Air Act, EPA is proposing to disapprove the
state implementation plan (SIP) for the Commonwealth of the Northern
Mariana Islands (CNMI) with respect to prevention of significant
deterioration (PSD), and to incorporate by reference the Federal PSD
regulations into the applicable CNMI plan. EPA is also proposing to
approve a petition by CNMI for an exemption of the applicable PSD major
source baseline date and trigger date under Federal PSD regulations,
and to establish an alternate date, January 13, 1997, as the major
source baseline date and trigger date in CNMI. EPA is also proposing to
make certain corrections that were made in previous rulemakings. This
action would establish the Federal PSD regulations as a basic element
of the CNMI implementation plan and, through the exemption, would
establish January 13, 1997 as the major source baseline date (and
trigger date) under the PSD program in CNMI for sulfur dioxide,
PM10 and nitrogen dioxide.
DATES: Comments must be received on or before December 26, 2013.
Request for a public hearing must be received by December 10, 2013. If
we receive a request for a public hearing, we will publish information
related to the timing and location of the hearing and the timing of a
new deadline for public comments.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2013-0697, by one of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow
the on-line instructions.
E-Mail: [email protected].
Mail or Deliver: Gerardo Rios (AIR-3), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
Instructions: All comments will be included in the public docket
without change and may be made available online at www.regulations.gov,
including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through www.regulations.gov or email.
The www.regulations.gov portal is an ``anonymous access'' system, and
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send email directly to
EPA, your email address will be automatically captured and included as
part of the public comment. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment.
Docket: The index to the docket for this action is available
electronically at
[[Page 70249]]
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. 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 in either location (e.g., CBI). To
inspect the hard copy materials, please schedule an appointment during
normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section below.
FOR FURTHER INFORMATION CONTACT: La Weeda Ward, (213) 244-1812 or
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Prevention of Significant Deterioration
A. Background
B. EPA's Evaluation of the CNMI SIP and Proposed Action
II. Major Source Baseline Date
A. Background
B. CNMI's Petition for Change of Major Source Baseline Date
C. EPA's Evaluation of CNMI's Petition and Proposed Action
III. Corrections
A. Background
B. Proposed Action
IV. Proposed Action and Request for Public Comment
V. Statutory and Executive Order Reviews
I. Prevention of Significant Deterioration
A. Background
Under the Clean Air Act (CAA or ``Act''), as amended in 1970, EPA
established the first national ambient air quality standards (NAAQS or
``standard''), which represent standards EPA has determined are
requisite to protect the public health and welfare. Once EPA has
established a NAAQS, under CAA section 110(a), each state is required
within a prescribed period of time to adopt and submit a plan, referred
to as the State Implementation Plan (SIP), which provides for
implementation, maintenance, and enforcement of such NAAQS. Under the
Clean Air Amendments of 1970, the term ``state'' was defined in section
302(d) as meaning one of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American
Samoa. The Commonwealth of the Northern Mariana Islands (CNMI) was not
included within the meaning of ``state'' under the 1970 Amended Act.\1\
At the time of the 1970 Act Amendments, CNMI was part of the post-World
War II United Nations' Trust Territory of the Pacific Islands (TPPI).
In 1976, Congress approved the mutually negotiated Covenant to
Establish a Commonwealth of the Northern Mariana Islands (CNMI) in
Political Union with the United States.
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\1\ CNMI consists of 15 islands of volcanic origin which are
located approximately 145[deg] to 146[deg] east and from 14[deg] to
20[deg] north of the equator. The islands extend in a general north-
south direction for approximately 420 nautical miles from the Island
of Farallon de Pajaros in the north to the island of Rota in the
south. CNMI lies in the western part of the Pacific Ocean and is
located approximately 1,250 miles south of Tokyo, 1,440 miles east
of Manila, and 110 miles north of Guam. Based on Bureau of Census
2010 population counts, the total population of CNMI is
approximately 54,000 with the majority of the population residing on
Saipan.
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Generally speaking, SIPs must include a number of substantive
elements including, but not limited to, rules establishing emission
limitations, permit programs for new or modified major stationary
sources (``New Source Review,'' or NSR), programs for monitoring
ambient air concentrations, and necessary assurances that the State has
adequate legal authority and resources to implement the SIP.
Once a SIP is submitted, EPA must take action to approve or
disapprove it, in whole or in part. If, however, a state fails to
submit a SIP or a portion of the SIP, or if EPA disapproves a SIP or
portion of the SIP, then generally speaking, EPA must promulgate a
Federal Implementation Plan (FIP) to address the plan deficiency.
Together, the approved portions of the SIP and EPA's FIP for a given
state constitute that state's applicable plan for the purposes of the
CAA. See 40 CFR 52.02(b). Each state's applicable plan is listed in
separate subparts of 40 CFR part 52. For example, the applicable CNMI
plan is found in subpart FFF of 40 CFR part 52.
One of the SIP content requirements under section 110 is the
requirement to prevent significant deterioration of air quality (PSD)
in areas that are meeting the NAAQS through review and permitting of
new major stationary sources and major modifications. As such, PSD is a
specific type of NSR program. The federal PSD program began in the
early 1970's during which EPA reviewed each SIP, determined that the
SIPs generally did not contain regulations or procedures specifically
addressing PSD, and thus disapproved all of the SIPs to the extent they
lacked procedures and regulations for preventing significant
deterioration of air quality in portions of the state where air quality
is better than one or more the NAAQS. 37 FR 23836 (November 9, 1972).
In 1974, EPA promulgated a PSD FIP (then, and now, codified in 40
CFR 52.21) to apply in all states for which EPA had disapproved the SIP
with respect to PSD. 39 FR 42510 (December 5, 1974). In our 1974 final
rule, we retained (as 40 CFR 52.21(a)) our 1972 general disapproval
statement for all SIPs with respect to PSD. In June 1975, EPA modified
part 52 by incorporating specific PSD disapprovals into the applicable
subpart for each state in part 52, and EPA modified the general
disapproval statement of section 52.21(a) accordingly. EPA indicated
that these changes to each subpart had no substantive effect but were
rather made so that all regulations applicable to a particular
implementation plan would be located in one place. 40 FR 25004 (June
12, 1975).
On August 7, 1977, the CAA Amendments of 1977 became law. The 1977
Amendments changed the 1970 CAA and EPA's regulations in many respects,
particularly with regard to PSD. In addition to mandating certain
immediately effective changes to EPA's PSD regulations, the 1977
Amendments, in sections 160-169 (i.e., subpart I of part C
(``Prevention of Significant Deterioration of Air Quality'') of title
I), contained comprehensive new PSD requirements. These new
requirements were to be incorporated by States into their respective
SIPs (under section 110 of the CAA). The 1977 Amendments also revised
the definition of the term, ``state,'' in CAA section 302(d), to
include CNMI, in recognition of the change during the 1970s in the
relationship between CNMI and United States. CNMI did not become
subject to the CAA, however, until January 9, 1978.\2\ On March 3, 1978
(43 FR 8962), EPA established the first area designations under CAA
section 107 and thereby divided the states into areas designated as
nonattainment, attainment
[[Page 70250]]
or unclassifiable with respect to each of the various NAAQS. In so
doing, EPA designated CNMI as attainment or unclassifiable/attainment
for each of the NAAQS, and CNMI continues to be so designated. See 40
CFR 81.354.
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\2\ CNMI is an insular territory of the United States. The
relations between CNMI and the United States are governed by the
Covenant to Establish a Commonwealth of the Northern Mariana Islands
in Political Union with the United States of America (``Covenant'').
See 48 U.S.C. 1801 notes. Section 502 of the Covenant lists laws
which are in existence on the effective date of section 502 and
states that these laws and the subsequent amendments to such laws
will apply to CNMI, unless otherwise specified in the Covenant.
Paragraph (1) of section 502 lists federal banking laws, provisions
of the Social Security Act and the Public Health Service Act.
Paragraph (2) states ``those laws not described in paragraph (1)
which are applicable to Guam and which are of general application to
the several States as they are applicable to the several States.''
Proclamation No. 4534, signed by President Carter in 1977, states in
section 2 that section 502 of the Covenant came into effect on
January 9, 1978. See 42 FR 56593. As noted above, Guam has been
included in the term ``state'' for CAA purposes since the 1970
Amended Act.
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In June 1978, in response to the CAA Amendments of 1977, and again
in August 1980, in response to litigation, EPA revised the PSD
requirements for SIPs in 40 CFR 51.24 (renumbered later as 40 CFR
51.166) and the Federal PSD regulations in 40 CFR 52.21. See 43 FR
26380 and 26388 (June 19, 1978), and 45 FR 52676 (August 7, 1980). At
the time these revisions were promulgated, CNMI had not submitted a
SIP, and there was no subpart within part 52 addressing the approval
status of CNMI. When EPA specified the states which did not meet the
new PSD requirements, CNMI was not listed. See 43 FR 26388, at 26410,
and 45 FR 52676, at 52741.
Thus, while the CAA, including the PSD requirements in subpart I to
part C of title I, has applied to sources on CNMI since January 9,
1978, EPA's PSD regulations in 40 CFR 52.21 that implement the
statutory PSD program have not been incorporated into the applicable
plan for CNMI. This has lead to uncertainty as to the proper
application of PSD to new major sources or major modifications on CNMI.
On February 19, 1986, CNMI submitted their air pollution control
regulations, including rules governing NSR. Later that year, CNMI
revised the regulations and re-submitted them on February 19, 1987. On
November 13, 1987 (52 FR 43574), EPA approved the NSR-related rules as
part of the CNMI SIP. In taking this action, EPA noted that approval of
the CNMI rules was not to be construed as indicating satisfaction of
the specific requirements for PSD. See 52 FR 43574.
Since the most recent approval of the CNMI SIP in 1987, under CAA
sections 108 and 109, EPA has conducted periodic reviews of the NAAQS
and has, in recent years, established certain new or revised NAAQS. As
noted above, under section 110(a), States must submit a plan that
provides for implementation, maintenance, and enforcement of such
NAAQS. The CAA directs EPA to make findings of failure to submit (such
a plan or portion of a plan) if a plan or portion of a plan is not
forthcoming from the State. EPA has made such findings for certain new
or revised NAAQS with respect to CNMI.
In March 2008, EPA published a finding of failure to submit with
respect to the 1997 8-hour ozone NAAQS for a number of states,
including CNMI. 73 FR 16205 (March 27, 2008). EPA's March 2008 finding
relates to the SIP elements listed in CAA section 110(a)(2), including
failure to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD
permit program) for the 1997 8-hour ozone NAAQS. Later that year, we
made a similar finding with respect to CNMI and the 1997
PM2.5 NAAQS. 73 FR 62902 (October 22, 2008). In 2010, we
found that CNMI had failed to submit a SIP revision addressing
interstate transport requirements with respect to the 2006
PM2.5 NAAQS. 75 FR 32673 (June 9, 2010). Under section
110(a)(2)(D), the SIP submittal requirements related to interstate
transport also implicate PSD. These findings of failure to submit
created two-year deadlines for EPA to promulgate FIPs unless, prior to
that deadline, CNMI makes submissions to meet the requirements and EPA
approves such submissions. See section 110(c)(1). No submittals have
been forthcoming from CNMI, and the two-year FIP deadlines have
expired.
B. EPA's Evaluation of the CNMI SIP and Proposed Action
The basic purpose of the PSD program is to prevent significant
deterioration by protecting the NAAQS and ``increments'' over the
baseline concentration in areas designated as attainment or
unclassifiable, through a permit program for new major sources and
major modifications to major sources. Requirements for SIPs with
respect to PSD are found primarily in 40 CFR 51.166.
Under 40 CFR 51.166, each state must adopt and submit rules that:
Establish certain ambient air increments and ambient air ceilings (40
CFR 51.166(c) and (d)); establish certain area classifications (i.e.,
class I, II, or III) and restrict certain types of area
reclassifications (40 CFR 51.166(e) and (g)); limit the reliance on
stack height in determining the degree of emission limitation (40 CFR
51.166(h)); provide for certain control technology review, including
the application of best available control technology (BACT) for each
regulated NSR pollutant that a new major source or major modification
would have the potential to emit in significant amounts (40 CFR
51.166(j)); provide for certain source impact analyses (40 CFR
51.166(k)); require use of EPA-approved air quality models (40 CFR
51.166(l)); provide for certain preapplication and post-construction
air quality analyses and monitoring (40 CFR 51.166(m)); establish
certain permit application requirements (40 CFR 51.166(n)); provide for
certain additional impact analyses (e.g., visibility impact analyses)
(40 CFR 51.166(o)); establish certain additional requirements for
sources impacting Federal Class I area (40 CFR 51.166(p)); provide for
public participation (40 CFR 51.166(q)); impose certain source
obligations (40 CFR 51.166(r)); and establish provision for plantwide
applicability limitations (PALs) (40 CFR 51.166(w)). The PSD SIP
requirements listed above rely on certain terms, including ``major
stationary source,'' ``major modification,'' ``net emissions
increase,'' and many others, that are defined specifically for use in
the PSD program. See 40 CFR 51.166(b).
We reviewed the NSR portion of the CNMI SIP, which includes Parts V
and X of the ``CNMI Air Pollution Control Regulations'' that EPA
approved on November 13, 1987 (52 FR 43574). Under Part V of CNMI's
rules, permits are required for the construction and operation of all
new sources or modifications of major sources of emissions. The NSR
rules also provide for certain exemptions from the permit requirement;
provide for certain application requirements; establish a process for
review by the CNMI Division of Environmental Quality (DEQ) of permit
applications; authorize DEQ to impose certain types of permit
conditions and to require applicants to conduct certain additional
analyses (e.g., performance testing); disallow the use of dispersion
techniques as a form of controlling air pollution absent EPA exemption;
and address administrative matters such as permit suspension, permit
transfer, and permit posting, among other such matters. Part X of
CNMI's rules provide for public participation prior to approval of an
application for an NSR permit for a major source. Under CNMI's NSR
rules, DEQ will approve an NSR permit application if the applicant can
show to DEQ's satisfaction that: (1) The new source is designed, built
and equipped with reasonably available control technology (RACT); (2)
the new source is designed and will be constructed or modified to
operate without causing a violation of the applicable rules and
regulations; and (3) the new source will not endanger the maintenance
or attainment of the NAAQS or ambient air increments as set forth as
Maximum Allowable Increases for Class II areas for sulfur dioxide and
particulate matter in 40 CFR 52.21(c) and (d).
Our review of the CNMI SIP NSR rules reveals that some aspects of
the PSD program required under 40 CFR 51.166 are met, such as the
establishment of certain ambient air increments (i.e., increments for
sulfur dioxide) and ambient air ceilings (i.e., the NAAQS) that
concentrations of pollutants resulting from construction of
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new major sources and major modifications may not exceed; provisions
limiting use of stack height and other dispersion techniques; and
certain provisions for public participation (e.g., notice in newspaper
of general circulation, and 30-day comment period). However, CNMI's NSR
rules do not meet many other PSD requirements, including, e.g.,
establishment of ambient air increments for nitrogen dioxide,
PM10 and PM2.5; provisions requiring application
of BACT; provisions requiring use of EPA-approved air quality models;
and provisions allowing establishment of PALs. Moreover, many of the
definitions of NSR-related terms in CNMI's rules, e.g., ``major
stationary source'' and ``major modification,'' differ from the
corresponding definitions in 40 CFR 51.166(b). Under 40 CFR 51.166(b),
deviations in the wording relative to the definition set forth in the
Federal PSD regulations will be approved only if the State specifically
demonstrates that the submitted definition is more stringent, or at
least as stringent, in all respects as the corresponding EPA
definition. Therefore, we propose to disapprove the CNMI SIP as not
meeting the requirements for PSD under part C of title I of the CAA and
40 CFR 51.166.
Based on our determination that the current CNMI SIP does not meet
the requirements for PSD, EPA is also proposing to apply the Federal
PSD program at 40 CFR 52.21 to CNMI, but to grant the petition of CNMI
for exemption from the original major source baseline date, as
described in the following section of this document. EPA would
administer the PSD program for CNMI and would make PSD determinations
and issue PSD permits directly from the EPA Region IX office. In the
future, if requested, EPA would consider delegation of implementation
authority to CNMI under 40 CFR 52.21(u).
Applying the Federal PSD program to CNMI would address long-
standing uncertainties concerning the application of PSD to sources on
CNMI and would fulfill EPA's more recent obligations to promulgate a
FIP in the wake of our finding of failure by CNMI to submit SIPs for
new or revised NAAQS in more recent years, including the 1997 eight-
hour ozone standard, the 1997 PM2.5 standard, and the 2006
PM2.5 standard, to the extent that the required SIP
submittals relate to PSD.
II. Major Source Baseline Date
A. Background
Section 325(a)(1) of the CAA authorizes EPA, upon petition by the
Governor of Guam, American Samoa, the Virgin Islands, or CNMI, to
exempt any person or source or class of persons in such territory from
any requirement of the Act other than section 112 (``Hazardous air
pollutants'') or any requirement under section 110 (``[SIPs] for
[NAAQS]'') or part D (``[SIP] Requirements for Nonattainment Areas'')
necessary to attain or maintain a NAAQS. An exemption may be granted if
EPA finds that compliance with such requirement is not feasible or is
unreasonable due to unique geographical, meteorological, or economic
factors of such territory, or such other local factors as EPA deems
significant.
B. CNMI's Petition for Change of Major Source Baseline Date
On October 6, 1998, the Honorable Pedro P. Tenorio, Governor of
CNMI, petitioned EPA to establish the effective date of EPA's final
conditional exemption from title V requirements as the major source
baseline date.\3\ See letter from Pedro P. Tenorio, Governor, to
Felicia Marcus, Region IX Regional Administrator, October 6, 1998.
EPA's final conditional exemption was published on November 13, 1996
and became effective on January 13, 1997.\4\
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\3\ The Governor of CNMI also requested that EPA allow merging
of the power plant stacks at a source, as a dispersion technique, in
order for power plants operated by the Commonwealth Utilities
Corporation (CUC) to meet the NAAQS and PSD increments. EPA is not
taking action on this additional request in this action.
\4\ The Governor's October 6, 1998 request states: ``In 1994,
[CNMI] petitioned the [EPA], under Section 325(a) of the [CAA] for
an exemption from Title V which pertains to establishment of an
operating permit program. A conditional waiver was granted on
November 13, 1996, . . . . Insofar as the CNMI was not covered by
the CAA in 1975, we believe that the appropriate baseline PSD date
for major sources should be the effective date of the Title V
waiver, January 13, 1996. Accordingly, we request an amendment to
our original 1996 Title V waiver clarifying that the major source
PSD baseline date is the effective date of the waiver.'' We
interpret the Governor's reference to ``January 13, 1996'' to be
mistaken and that ``January 13, 1997'' was the intended date, since
the latter represents the effective date of EPA's final conditional
exemption published on November 13, 1996. See 61 FR 58284 (November
13, 1996).
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Under the PSD program, the ``major source baseline date'' is the
date after which actual emissions changes associated with modifications
(i.e., physical changes or changes in the method of operation) at a
major stationary source affect the available PSD increment. Other
changes in actual emissions occurring at any source after the major
source baseline date do not affect the increment, but instead (until
after the minor source baseline date is established) contribute to the
baseline concentration. The ``trigger date'' is the date after which
the minor source baseline date may be established.
Both the major source baseline date and the trigger date are fixed
dates, although the specific dates vary among the pollutants for which
PSD increments have been established: Sulfur dioxide and respirable
particulate matter (PM10), fine particulate matter
(PM2.5) and nitrogen dioxide. Under 40 CFR 52.21(b)(14), the
major source baseline date for sulfur dioxide and PM10 is
January 6, 1975, and the trigger date for those pollutants is August 7,
1977. For nitrogen dioxide, both the major source baseline date and the
trigger date are February 8, 1988. For PM2.5, the major
source baseline date is October 20, 2010, and the trigger date for
those pollutants is October 20, 2011. The ``minor source baseline
date'' is the earliest date after the trigger date on which a complete
PSD application is received by the permit reviewing agency, and thus is
not a fixed date.
In concept, the ``major source baseline date'' establishes a marker
in time to track consumption (or expansion) of PSD increments due to
modifications at major sources that occur prior to the ``minor source
baseline date,'' after which all types of emissions increases and
decreases (including mobile sources), i.e., not just those related to
modifications at major stationary sources, consume (or expand) the
available increment. Moreover, the trigger date is the marker in time
after which the ``minor source baseline date'' can be established, and
thus, there is no purpose in establishing a ``major source baseline
date'' after a ``trigger date.''
The Governor's request refers only to the ``major source baseline
date'' and does not refer to the ``trigger date,'' but because, as
explained above, granting a change to the ``major source baseline
date'' without a corresponding change to the ``trigger date'' would be
pointless given the connection between the two terms, we interpret the
Governor's request as applying to both terms. Also, the Governor's
request was not pollutant-specific, but we interpret it to refer to all
pollutants for which the major source baseline date and trigger date
were established under EPA's PSD regulations at the time of the
Governor's 1998 petition (i.e., sulfur dioxide, PM10, and
nitrogen dioxide, but not PM2.5).\5\
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\5\ CNMI's 1998 request did not apply to the PM2.5
NAAQS because the increments, major source baseline date, and
trigger date for PM2.5 were not established until 2010.
See 75 FR 64864 (October 20, 2010). If this proposed action is
finalized as proposed, the major source baseline date and trigger
date for PM2.5 in CNMI would be October 20, 2010 and
October 20, 2011, respectively, as set forth at 40 CFR
52.21(b)(14)(i)(c) and 40 CFR 52.21(b)(14)(ii)(c).
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[[Page 70252]]
C. EPA's Evaluation of CNMI's Petition and Proposed Action
CNMI has petitioned EPA to exempt CNMI from the original PSD major
source baseline date and to establish January 13, 1997 as the PSD major
source baseline date for CNMI. As explained above, changing the major
source baseline date would also require changing the trigger date.
Changing the major source PSD baseline date (and trigger date) will
allow existing and future sources on CNMI to use more increment than
would have been the case if the original major source baseline date
applied, but sources will still be required to comply with NAAQS
limits, and with the increment limits calculated from the new 1997 PSD
major source baseline date.
Leaving the major source PSD baseline date unchanged would create a
unique burden on sources in CNMI. Other States and territories were
clearly included in the scope of the original PSD regulations and thus
have been aware since the late 1970's of the need to quantify major
source baseline emissions as of the original major source baseline date
and to track emissions changes due to modifications at such major
sources in order to calculate available increment when the minor source
baseline date is established by the first complete PSD application in a
given area. Because the Federal PSD regulations were not previously
incorporated into the applicable plan for CNMI, neither CNMI nor
sources on CNMI determined the respective baseline of source emissions
on the original PSD major source baseline date, or changes to that
baseline over time. It would create a unique burden if CNMI must
attempt to reconstruct a complete baseline inventory working from the
original major source baseline dates, including sources which may have
existed in the 1970's but no longer exist today. Applying PSD
regulations to CNMI with the original major source baseline dates would
thus create a significant burden on new sources and regulators
attempting to analyze PSD increment changes. This constitutes a ``local
factor'' that is ``significant'' in EPA's judgment for the purposes of
CAA section 325(a) because of the complications it creates for
implementation of the PSD program in CNMI.
Moreover, the specific date of January 13, 1997 as an alternate
major source baseline date is appropriate given that it represents the
effective date of EPA's approval of CNMI's request for a conditional
exemption from the requirement to develop, submit for approval, and
implement a title V operating permit program, given that one of the
applicable conditions for granting the exemption was a continuing
obligation on CNMI to implement its NSR program in such a way as to
protect the NAAQS and the PSD increments. See 40 CFR 69.32(c)(1). Prior
to this date, EPA had not provided clear instructions to CNMI with
respect to the applicability of the PSD program, and correspondingly
the need to quantify major source baseline emissions as of the original
major source baseline date and to track emissions changes due to
modifications at such major sources in order to calculate available
increment.
Lastly, we note that approval of the alternate major source
baseline date and trigger date for CNMI would not be expected to have
any effect on the PSD programs of any other state or territory given
prevailing easterly winds and the location of the nearest state or
territory, i.e., Guam, which is approximately 110 miles south of CNMI.
Therefore, pursuant to section 325(a)(1) of the CAA, EPA is
proposing to grant the CNMI Governor's 1998 request to establish the
effective date of EPA's final conditional exemption from title V
requirements as the major source baseline date. Specifically, in
granting this request, EPA is proposing to establish January 13, 1997
as the PSD major source baseline date and trigger date (with respect to
sulfur dioxide, PM10, and nitrogen dioxide) for sources in
CNMI.\6\
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\6\ As noted in footnote 5 of this document, neither the request
nor our approval relates to the PM2.5 NAAQS. If this
action is finalized as proposed, the PM2.5 major source
baseline date and trigger date would be the dates as provided in 40
CFR 52.21(b)(14)(i)(c) and (ii)(c). Moreover, any baseline dates or
trigger dates that EPA establishes for new or modified NAAQS in
future revisions to the Federal PSD regulations would be established
in those revisions and would not be subject to the January 13, 1997
baseline date and trigger date proposed for approval herein.
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III. Corrections
A. Background
Section 110(k)(6) of the CAA provides: ``Whenever [EPA] determines
that [EPA's] action approving, disapproving, or promulgating any plan
or plan revision (or part thereof), area designation, redesignation,
classification, or reclassification was in error, [EPA] may in the same
manner as the approval, disapproval, or promulgation revise such action
as appropriate without requiring any further submission from the State.
Such determination and the basis thereof shall be provided to the State
and public.'' We interpret this provision to authorize the Agency to
make corrections to a promulgated regulation when it is shown to our
satisfaction that (1) we clearly erred in failing to consider or
inappropriately considering information made available to EPA at the
time of the promulgation, or the information made available at the time
of promulgation is subsequently demonstrated to have been clearly
inadequate, and (2) other information persuasively supports a change in
the regulation. See 57 FR 56762, at 56763 (November 30, 1992).
B. Proposed Action
First, under section 110(k)(6), EPA is proposing to amend 40 CFR
52.02 and 52.16 to include references to CNMI or subpart FFF (which
lists the applicable CNMI plan). EPA should have added these references
in 1986 when the Agency took its first action on the CNMI SIP and
thereby added subpart FFF to part 52, but failed to do so. See 51
40798, at 40799 (November 10, 1986). We propose to add the appropriate
references through this action.
Second, under section 110(k)(6), EPA is proposing to correct the
inadvertent listing of the ``Part VIII'' rules in table 52.2920 in 40
CFR 52.2920 (``Identification of plan''), which sets forth EPA-approved
regulations in the CNMI SIP. Part VIII of CNMI's air pollution control
regulations consists of general prohibitory rules (that establish
controls on open and agricultural burning, visible emissions, fugitive
dust, incineration, process industries, and sulfur oxides from fuel
combustion) and variance provisions. EPA has not taken action on any of
the Part VIII rules and, thus, Part VIII should not have been listed in
table 52.2920 in 40 CFR 52.2920. The Part VIII rules were inadvertently
listed when EPA revised the format for the CNMI SIP. See 70 FR 44478,
at 44481 (August 3, 2005). EPA proposes to correct this error in this
action.
Third, pursuant to section 110(k)(6), EPA is proposing to remove
the words (``of lead'') in 40 CFR 52.2921(c)(1)(i), which presents the
original ``Identification of plan'' prior to EPA's revision of the
format for the CNMI SIP in 2005. In 1987, in the original
``Identification of plan'' section, EPA mistakenly included the phrase
``of lead'' in the description of the rules that we approved in
November 1987. 52 FR at 43574, at 43575 (November 13, 1987). Both CNMI
and EPA have understood the 1987 approval to cover the general NSR
regulations as they apply to all criteria air pollutants regulated
therein,
[[Page 70253]]
and not just to lead, which was the subject of a previous action. See
51 FR 40798 (November 10, 1986). This revision would correct the
wording in 40 CFR 52.2921(c)(1)(i) to match the intent of CNMI and EPA
that the approval was of the generic NSR regulations. In addition, the
presence of the reference to ``of lead'' in connection with EPA's 1987
SIP approval is potentially confusing, and thus, harmful to the
regulated community, CNMI, and EPA.
IV. Proposed Action and Request for Public Comment
Under section 110(k) of the CAA, EPA is proposing to disapprove the
CNMI SIP with respect to PSD, and incorporate by reference the Federal
PSD regulations into the applicable CNMI plan.\7\ EPA is also proposing
to approve a petition by CNMI for an exemption of the PSD major source
baseline dates and trigger dates for sulfur dioxide, PM10,
and nitrogen dioxide under Federal PSD regulations, and to establish an
alternate date, January 13, 1997, as the major source baseline date and
trigger date for those pollutants in CNMI. Lastly, in addition to
proposing conforming amendments to 40 CFR part 52, subparts A and FFF
and to 40 CFR part 69, subpart C, EPA is also proposing to make certain
corrections to 40 CFR part 52 that were made in previous rulemakings.
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\7\ While EPA is proposing to disapprove the CNMI with respect
to PSD, such disapproval would not affect the validity of any
previously approved rules in the CNMI SIP. If finalized as proposed,
such SIP rules would continue to be part of the applicable CNMI plan
unless and until EPA approves their revocation or revision.
---------------------------------------------------------------------------
If finalized as proposed, this action would establish EPA's PSD
regulations as a basic element of the applicable implementation plan
for CNMI and, through the exemption, would establish a major source
baseline date and trigger date for sulfur dioxide, PM10, and
nitrogen dioxide on CNMI of January 13, 1997.
EPA is soliciting public comments on the issues discussed in this
document or on other relevant matters. We will accept comments from the
public on this proposal for the next 30 days. Request for a public
hearing must be received within the next 15 days. If we receive a
request for a public hearing, we will publish information related to
the timing and location of the hearing and the timing of a new deadline
for public comment.
V. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This proposed action is not a ``significant regulatory action''
under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4,
1993) and is therefore not subject to review by the Office of
Management and Budget (OMB).
B. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Reduction Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This proposed rule will not have a significant impact on a
substantial number of small entities because, while the disapproval of
the CNMI SIP with respect to PSD would lead to the application of the
Federal PSD regulations to CNMI, the basic PSD statutory requirements
for major emitting facilities to obtain a PSD permit already apply
within CNMI, and the incremental impact associated with application of
the specific requirements under the Federal PSD regulations would be
offset by EPA's grant of CNMI's petition for a waiver of the original
PSD major source baseline dates. Therefore, I certify that this
proposed action will not have a significant economic impact on a
substantial number of small entities. Moreover, due to the nature of
the Federal-State relationship under the Clean Air Act, preparation of
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of State action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co., v.
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed disapproval of the CNMI SIP
with respect to PSD, considered together with the proposed
incorporation of the Federal PSD regulations, and grant of an exemption
request with respect to the PSD major source baseline date, does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. While the disapproval of the CNMI
SIP with respect to PSD would lead to the application of the Federal
PSD regulations to CNMI, the basic PSD statutory requirements for major
emitting facilities to obtain a PSD permit already apply within CNMI,
and the incremental impact associated with application of the specific
requirements under the Federal PSD regulations would be offset by EPA's
grant of CNMI's petition for a waiver of the original PSD major source
baseline dates. Accordingly, the additional costs to State, local, or
tribal governments, or to the private sector, would not be significant
for the purposes of section 202 of the Unfunded Mandates Act.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
[[Page 70254]]
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This proposed rule 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, as specified in Executive Order 13132,
because it merely proposes to disapprove the CNMI SIP with respect to
PSD, to incorporate the Federal PSD regulations, and to grant an
exemption request with respect to the PSD major source baseline date,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175. It
will not have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it proposes to
disapprove the CNMI SIP with respect to PSD, to incorporate the Federal
PSD regulations, and to grant an exemption request with respect to the
PSD major source baseline date.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
EPA believes that VCS are inapplicable to this proposed action.
Today's action does not require the public to perform activities
conducive to the use of VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
This proposed rulemaking includes a review of the CNMI SIP relative
to PSD requirements, incorporation of EPA's PSD regulation into the
applicable CNMI plan, and a grant of an exemption to CNMI to the
original PSD major source baseline dates. With respect to EPA's review
of the CNMI SIP, EPA's role is to approve or disapprove state choices,
based on the criteria of the Clean Air Act, and incorporation of EPA's
PSD regulation is the established remedy for disapproval of the CNMI
SIP with respect to PSD. Thus, the EPA lacks the discretionary
authority to address environmental justice in those two aspects of this
proposed rulemaking.
EPA does have discretionary authority to address environment
justice with respect to EPA's consideration of the exemption request
from CNMI and has determined that this proposed action will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations. This is because, due to
the lack of documentation of major source emissions changes from the
original PSD baseline dates, application of the original major source
baseline dates could lead to speculative and uncertain estimates of PSD
increment consumption and correspondingly speculative and uncertain
levels of environmental protection. In contrast, EPA's grant of CNMI's
exemption request sets the stage for consistent and uniform PSD
increment tracking and protection within CNMI.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Reporting and recordkeeping requirements.
40 CFR Part 69
Environmental protection, Air pollution control.
Dated: October 30, 2013.
Jared Blumenfeld,
Regional Administrator, Region IX.
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 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 A--General Provisions
Sec. 52.02 [Amended]
0
2. Section 52.02 is amended by:
0
a. Revising paragraph (d) introductory text by adding ``and FFF'' after
``DDD''; and
0
b. Revising paragraph (d)(2)(ix) by adding ``Commonwealth of the
Northern Mariana Islands,'' after ``American Samoa,''.
[[Page 70255]]
Sec. 52.16 [Amended]
0
3. Amend Sec. 52.16 in paragraph (b)(9) by adding ``Commonwealth of
the Northern Mariana Islands,'' after ``American Samoa,''.
Sec. 52.21 [Amended]
0
4. Amend Sec. 52.21 in paragraph (a)(1) by adding ``and FFF'' after
``DDD'' two times.
Subpart FFF--Commonwealth of the Northern Mariana Islands
Sec. 52.2920 [Amended]
0
5. In Sec. 52.2920, amend the table in paragraph (c), under ``Part
VIII,'' by removing the entries for ``Paragraph A,'' ``Paragraph B,''
``Paragraph C,'' ``Paragraph D,'' ``Paragraph E,'' ``Paragraph F,''
``Table VIII-1,'' ``Paragraph G,'' and ``Paragraph H.''
Sec. 52.2921 [Amended]
0
6. Amend Sec. 52.2921 in paragraph (c)(1)(i)(A) by removing ``of
lead'' after ``major sources''.
0
7. Section 52.2922 is added to read as follows:
Sec. 52.2922 Significant deterioration of air quality.
(a) The requirements of sections 160 through 165 of the Clean Air
Act are not met, since the plan does not include approvable procedures
for preventing the significant deterioration of air quality.
(b) Regulations for preventing significant deterioration of air
quality. The provisions of Sec. 52.21 except paragraphs (a)(1),
(b)(14)(i)(a) and (b), (b)(14)(ii)(a) and (b), (i)(5)(i)(c), and (k)(2)
are hereby incorporated and made a part of the applicable plan for the
Commonwealth of the Northern Mariana Islands.
(c) For the purposes of applying the requirements of Sec. 52.21
within the Commonwealth of the Northern Mariana Islands, the term
``major source baseline date'' and ``trigger date'' means January 13,
1997 in the case of sulfur dioxide, PM10, and nitrogen
dioxide.
PART 69--SPECIAL EXEMPTIONS FROM REQUIREMENTS OF THE CLEAN AIR ACT
0
8. The authority citation for part 69 continues to read as follows:
Authority: Sec. 325, Clean Air Act, as amended (42 U.S.C. 7625-
1).
Subpart C--Commonwealth of the Northern Mariana Islands
0
9 Section 69.31 is added to read as follows:
Sec. 69.31 New Exemptions.
(a) Change to Major Source Baseline Date and Trigger Date. Pursuant
to section 325(a) of the Clean Air Act and a petition submitted by the
Governor of the Commonwealth of the Northern Mariana Islands, EPA
grants an exemption to the major source baseline dates and trigger
dates for sulfur dioxide, PM10, and nitrogen dioxide under
40 CFR 52.21, and establishes January 13, 1997 as the major source
baseline date and trigger date for these pollutants in the Commonwealth
of the Northern Mariana Islands. This exemption applies solely to the
PSD major source baseline date and trigger date in the Commonwealth of
the Northern Mariana Islands. Owners and operators of air pollutant
sources are required to comply with all other applicable requirements
of the Clean Air Act. For purposes of complying with any applicable
requirement that is triggered by, implemented or calculated from the
PSD major source baseline date, such requirement, increment, or
calculation shall, for sources located within the Commonwealth of the
Northern Mariana Islands, use January 13, 1997 as the PSD major source
baseline date and trigger date for sulfur dioxide, PM10, and
nitrogen dioxide.
(b) Reserved.
[FR Doc. 2013-27155 Filed 11-22-13; 8:45 am]
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