[Federal Register Volume 76, Number 114 (Tuesday, June 14, 2011)]
[Proposed Rules]
[Pages 34630-34633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14684]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2011-0346, FRL-9318-6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a requested revision to New 
Hampshire's State Implementation Plan (SIP) under the Clean Air Act 
(CAA or Act). The proposed SIP revision was submitted by New Hampshire, 
through the New Hampshire Department of Environmental Services (NH 
DES), Air Resources Division, to EPA on February 7, 2011. The proposed 
SIP revision modifies New Hampshire's Prevention of Significant 
Deterioration (PSD) program to establish appropriate emission 
thresholds for determining which new stationary sources and 
modification projects become subject to New Hampshire's PSD permitting 
requirements for their greenhouse gas (GHG) emissions. This rule 
clarifies the applicable thresholds in the New Hampshire SIP, addresses 
the flaw discussed in the SIP Narrowing Rule, and incorporates state 
rule changes adopted at the state level into the Federally-approved 
SIP. EPA is proposing approval of New Hampshire's February 7, 2011, SIP 
revision because the Agency has made the preliminary determination that 
this SIP revision is in accordance with the CAA and EPA regulations 
regarding PSD permitting for GHGs.

DATES: Comments must be received on or before July 14, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2011-0346, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (617) 918-0657.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2011-0346,'' 
Donald Dahl, U.S. Environmental Protection Agency, EPA New England 
Regional Office, Office of Ecosystem Protection, 5 Post Office Square--
Suite 100, (mail code OEP05-2), Boston, MA 02109-3912.
    5. Hand Delivery or Courier: Deliver your comments to: 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. Such deliveries are only accepted during the 
Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 a.m. to 4:30 
p.m., excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R01-OAR-
2011-0346.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 in http://www.regulations.gov or in hard copy at the Office of Ecosystem 
Protection, 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, 
Massachusetts. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the New 
Hampshire 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; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA proposing in this document?
II. What is the background for the action proposed by EPA in this 
document?
    A. GHG-Related Actions
    B. New Hampshire's Actions
III. What is EPA's analysis of New Hampshire's SIP revision?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing in this document?

    On February 7, 2011, NH DES submitted a revision to EPA for 
approval into the New Hampshire SIP to establish appropriate emission 
thresholds for determining which new or modified stationary sources 
become subject to New Hampshire's PSD permitting requirements for GHG 
emissions. Due to a previous EPA action known as the SIP Narrowing 
Rule, starting on January 2, 2011, the approved New Hampshire SIP's PSD 
requirements for GHG now apply at the thresholds specified in the 
Tailoring Rule, not at the 100 or 250 tons per year (tpy) levels 
otherwise provided under the CAA, which would overwhelm New Hampshire's 
permitting resources. Final approval of this SIP revision request will 
put in place the GHG emission thresholds for PSD applicability set 
forth in EPA's Tailoring Rule, ensuring that smaller GHG sources 
emitting less than these thresholds will not be subject to permitting 
requirements. Pursuant to section 110 of the CAA, EPA is

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proposing to approve this revision into the New Hampshire SIP.

II. What is the background for the action proposed by EPA in this 
document?

    This section briefly summarizes EPA's recent GHG-related actions 
that provide the background for today's proposed action. More detailed 
discussion of the background is found in the preambles for those 
actions. In particular, the background is contained in what we call the 
GHG PSD SIP Narrowing Rule,\1\ and in the preambles to the actions 
cited therein.
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    \1\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (Dec. 30, 
2010).
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A. GHG-Related Actions

    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 New Hampshire 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,\2\ the ``Johnson 
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and 
the ``Tailoring Rule.'' \5\ Taken together and in conjunction with the 
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. EPA took this last action in the Tailoring Rule, which, more 
specifically, established appropriate GHG emission thresholds for 
determining the applicability of PSD requirements to GHG-emitting 
sources.
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    \2\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (Dec. 15, 2009).
    \3\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (Apr. 2, 
2010).
    \4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \5\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    PSD is implemented through the SIP system, and so in December 2010, 
EPA promulgated several rules to implement the new GHG PSD SIP program. 
Recognizing that some states had approved SIP PSD programs that did not 
apply PSD to GHGs, EPA issued a SIP call and, for some of these states, 
a FIP.\6\ Recognizing that other 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 tpy of GHG, and that do not limit PSD 
applicability to GHGs to the higher thresholds in the Tailoring Rule, 
EPA issued the GHG PSD SIP Narrowing Rule. Under that rule, EPA 
withdrew its approval of the affected SIPs to the extent those SIPs 
covered GHG-emitting sources below the Tailoring Rule thresholds. EPA 
based its action primarily on the ``error correction'' provisions of 
CAA section 110(k)(6).
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    \6\ Specifically, by action dated December 13, 2010, EPA 
finalized a ``SIP Call'' that would require those states with SIPs 
that have approved PSD programs but do not authorize PSD permitting 
for GHGs to submit a SIP revision providing such authority. ``Action 
To Ensure Authority To Issue Permits Under the Prevention of 
Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Substantial Inadequacy and SIP Call,'' 75 FR 
77698 (Dec. 13, 2010). EPA has begun making findings of failure to 
submit that would apply in any state unable to submit the required 
SIP revision by its deadline, and finalizing FIPs for such states. 
See, e.g. ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Failure To Submit State 
Implementation Plan Revisions Required for Greenhouse Gases,'' 75 FR 
81874 (Dec. 29, 2010); ``Action To Ensure Authority To Issue Permits 
Under the Prevention of Significant Deterioration Program to Sources 
of Greenhouse Gas Emissions: Federal Implementation Plan,'' 75 FR 
82246 (Dec. 30, 2010). Because New Hampshire's SIP already 
authorizes New Hampshire to regulate GHGs once GHGs became subject 
to PSD requirements on January 2, 2011, New Hampshire is not subject 
to the proposed SIP Call or FIP.
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B. New Hampshire's Actions

    On July 30, 2010, New Hampshire provided a letter to EPA, in 
accordance with a request to all States from EPA in the Tailoring Rule, 
with confirmation that the State has the authority to regulate GHG in 
its PSD program. The letter also confirmed that current New Hampshire 
rules require regulating GHGs at the existing 100/250 tpy threshold, 
rather than at the higher thresholds set in the Tailoring Rule. See the 
docket for this proposed rulemaking for a copy of New Hampshire's 
letter.
    In the SIP Narrowing Rule, published on December 30, 2010, EPA 
withdrew its approval of New Hampshire's SIP (among other SIPs) to the 
extent that the SIP applies PSD permitting requirements to GHG 
emissions from sources emitting at levels below those set in the 
Tailoring Rule.\7\ As a result, New Hampshire's current approved SIP 
provides the state with authority to regulate GHGs, but only at and 
above the Tailoring Rule thresholds; and requires new and modified 
sources to receive a Federal PSD permit based on GHG emissions only if 
they emit at or above the Tailoring Rule thresholds.
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    \7\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (Dec. 30, 
2010).
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    The basis for this proposed SIP revision is that limiting PSD 
applicability to GHG sources to the higher thresholds in the Tailoring 
Rule is consistent with the SIP provisions that provide required 
assurances of adequate resources, and thereby addresses the flaw in the 
SIP that led to the SIP Narrowing Rule. Specifically, CAA section 
110(a)(2)(E) includes as a requirement for SIP approval that States 
provide ``necessary assurances that the State * * * will have adequate 
personnel [and] funding * * * to carry out such [SIP].'' In the 
Tailoring Rule, EPA established higher thresholds for PSD applicability 
to GHG-emitting sources on grounds that the states generally did not 
have adequate resources to apply PSD to GHG-emitting sources below the 
Tailoring Rule thresholds,\8\ and no State, including New Hampshire, 
asserted that it did have adequate resources to do so.\9\ In the SIP 
Narrowing Rule, EPA found that the affected states, including New 
Hampshire, had a flaw in their SIP at the time they submitted their PSD 
programs, which was that the applicability of the PSD programs was 
potentially broader than the resources available to them under their 
SIP.\10\ Accordingly, for each affected state, including New Hampshire, 
EPA concluded that EPA's action in approving the SIP was in error, 
under CAA section 110(k)(6), and EPA rescinded its approval to the 
extent the PSD program applies to GHG-emitting sources below the 
Tailoring Rule thresholds.\11\ EPA recommended that States adopt a SIP 
revision to incorporate the Tailoring Rule thresholds, thereby (i) 
assuring that under State law, only sources at or above the Tailoring 
Rule thresholds would be subject to PSD; and (ii) avoiding confusion 
under the Federally approved SIP by clarifying that the SIP applies to 
only sources at or above the Tailoring Rule thresholds.\12\
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    \8\ Tailoring Rule, 75 FR 31517.
    \9\ SIP Narrowing Rule, 75 FR 82540.
    \10\ Id. at 82542.
    \11\ Id. at 82544.
    \12\ Id. at 82540.

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III. What is EPA's analysis of New Hampshire's SIP revision?

    The regulatory revisions that NH DES submitted on February 7, 2011, 
establish thresholds for determining which stationary sources and 
modification projects become subject to permitting requirements for GHG 
emissions under New Hampshire's PSD program. Specifically, the 
submittal includes changes to New Hampshire's regulations at Air 
Resources Division Env-A 101 (Definitions) and Env-A 619 (PSD Permit 
Requirements) that New Hampshire finalized in December 2010.
    New Hampshire is currently a SIP-approved state for the PSD 
program. In a letter provided to EPA on July 30, 2010, New Hampshire 
notified EPA of its interpretation that the State currently has the 
authority to regulate GHGs under its PSD regulations. The currently-
approved New Hampshire PSD SIP (adopted prior to the promulgation of 
EPA's Tailoring Rule) applies to major stationary sources (having the 
potential to emit at least 100 tpy or 250 tpy or more of a regulated 
NSR pollutant, depending on the type of source) or modifications 
constructing in areas designated attainment or unclassifiable with 
respect to the NAAQS.
    The amendments to Env-A 101 that EPA is proposing to approve into 
the New Hampshire SIP include: New Env-A 101.35, definition of ``Carbon 
dioxide equivalent emissions''; new Env-A 101.96, definition of 
``Greenhouse gases''; an amendment to the definition of ``Major 
source'' in Env-A 101.115; and certain amendments to Env-A 619.03, 
``PSD Permit Requirements.''
    New Hampshire's original SIP revision request to EPA, dated 
February 7, 2011, proposed to incorporate all of the amendments to Env-
A 619.03 as part of its SIP revision request. After an exchange of 
correspondence, on May 16, 2011, New Hampshire withdrew from 
consideration its recent revisions to Env-A 619.03(a). Thus, EPA is 
proposing to approve into the SIP Env-A 619.03(b)-(e) as revised, but, 
in place of the revised Env-A 619.03(a), to retain its previously-
approved predecessor, which was then numbered as Env-A 623.03(a).\13\ 
New Hampshire's previously-approved PSD regulations became effective 
under state law on July 23, 2001 and were approved by EPA on October 
28, 2002 (67 FR 65710). EPA and New Hampshire agree that relying on the 
previously-approved version of Env-A 619.03(a) does not affect the 
manner in which Env-A 619.03(b)-(e) function. New Hampshire and EPA may 
take action on the revision to Env-A 619.03(a) in the future.
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    \13\ Env-A 623 was renumbered to Env-A 619 for reasons unrelated 
to the Tailoring Rule or this proposed revision.
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    The changes to New Hampshire's PSD program regulations that EPA is 
proposing to approve are substantively the same as the amendments to 
the Federal PSD regulatory provisions in EPA's Tailoring Rule regarding 
greenhouse gases. As part of its review of this submittal, EPA 
performed a line-by-line review of New Hampshire's proposed revision 
and has preliminarily determined that they are consistent with the 
Tailoring Rule.
    EPA has, however, identified several minor differences between the 
proposed SIP revision and EPA's PSD regulations. These differences 
arise from the fact that New Hampshire's PSD SIP consists, in the main, 
of an incorporation by reference of 40 CFR 52.21 as it stood when the 
PSD SIP was approved. For purposes of regulating greenhouse gases, 
however, New Hampshire has incorporated by reference the definitions of 
``major stationary source'' and ``significant'' contained in 40 CFR 
52.21(b), July 1, 2009 edition, and the definitions of ``subject to 
regulation'' and ``regulated NSR pollutant'' promulgated by EPA in the 
Tailoring Rule and codified at 40 CFR 52.21(b)(49)-(50). These 
differences and EPA's analysis of why they do not affect approvability 
are explained in a memorandum ``Explanation of Two Definitions in New 
Hampshire's PSD Regulations.'' See the docket for this proposed 
rulemaking for a copy of the memorandum.

IV. Proposed Action

    Pursuant to section 110 of the CAA, EPA is proposing to approve New 
Hampshire's February 7, 2011 SIP revision relating to PSD requirements 
for GHG-emitting sources. Specifically, New Hampshire's February 7, 
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. EPA has made the preliminary 
determination that this SIP revision is approvable because it is in 
accordance with the CAA and EPA regulations regarding PSD permitting 
for GHGs.
    If EPA does approve New Hampshire's changes to its air quality 
regulations to incorporate the appropriate thresholds for GHG 
permitting applicability into New Hampshire's SIP, then Sec.  
52.1522(c) of 40 CFR part 52, as included in EPA's SIP Narrowing Rule--
which codifies EPA's limiting its approval of New Hampshire's PSD SIP 
to not cover the applicability of PSD to GHG-emitting sources below the 
Tailoring Rule thresholds--is no longer necessary. In today's proposed 
action, EPA is also proposing to amend Sec.  52.1522(c) of 40 CFR part 
52 to remove this unnecessary regulatory language.

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 Clean Air 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 
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 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).

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    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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

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

    Dated: June 1, 2011.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2011-14684 Filed 6-13-11; 8:45 am]
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