[Federal Register Volume 77, Number 24 (Monday, February 6, 2012)]
[Rules and Regulations]
[Pages 5700-5703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2598]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2011-0346, FRL-9627-8]


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: Final rule.

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SUMMARY: EPA is approving revisions to the New Hampshire State 
Implementation Plan (SIP), submitted by the New Hampshire Department of 
Environmental Services (NH DES) to EPA on February 7, 2011. The 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. EPA proposed 
approval of these regulatory revisions on June 14, 2011, and received 
no comments. This action affects major stationary sources in New 
Hampshire that have GHG emissions above the thresholds established in 
the PSD regulations.

DATES: Effective Date: This rule will be effective on March 7, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-

[[Page 5701]]

2011-0346. All documents in the docket are listed on the http://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 http://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 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; email address: 
[email protected].

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

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 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,\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.
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    \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, 
2010).
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    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 New Hampshire (PSD Narrowing Rule).\5\ In the PSD Narrowing 
Rule, EPA withdrew its approval of New Hampshire'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. Subsequently, New Hampshire's approved SIP provided the 
state with authority to regulate GHGs, but only at and above the 
Tailoring Rule thresholds; and Federally 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.
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    \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).
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    On February 7, 2011, in response to the Tailoring Rule and earlier 
GHG-related EPA rules, 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 PSD permitting requirements for GHG emissions. Subsequently, on June 
14, 2011 (76 FR 34630), EPA published a proposed approval of this SIP 
submittal. 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. Detailed background information and EPA's 
rationale for the proposed approval are provided in EPA's June 14, 
2011, Federal Register action.
    EPA also stated in the proposal that if the Agency did 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 Section 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. Therefore, EPA is amending section 52.1522 of 40 CFR part 52 
by removing the unnecessary regulatory language in subsection (c).

II. What comments did EPA receive?

    The public comment period on the proposed approval of New 
Hampshire's SIP revision ended on July 14, 2011. 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 New Hampshire's February 2, 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 
New Hampshire 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. Pursuant to section 110 of the 
CAA, EPA approves this revision into New Hampshire's SIP.
    As a result of today's action approving New Hampshire's 
incorporation of the appropriate GHG permitting thresholds into its 
SIP, paragraph 40 CFR 52.1522(c), as included in EPA's PSD Narrowing 
Rule, is no longer necessary.\6\ Thus, today's action also amends 40 
CFR 52.1522 to remove this unnecessary regulatory language.
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    \6\ 40 CFR 52.1522(c) 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.

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[[Page 5702]]

IV. What action is EPA taking?

    Pursuant to section 110 of the CAA, EPA is approving New 
Hampshire's February 7, 2011 SIP revision relating to PSD requirements 
for GHG-emitting sources, except for the revised Env-A 619.03(a), which 
the state withdrew on May 16, 2011. Our approval includes: A new Env-A 
101.35, definition of ``Carbon dioxide equivalent emissions''; a 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.''
    Specifically, EPA is approving into the SIP Env-A 619.03(b)-(e) as 
revised. However, in place of the state's revisions to Env-A 619.03(a), 
the SIP retains the previously-approved provision, which was then 
numbered as Env-A 623.03(a).\7\ 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 previously-approved Env-A 623.03(a) 
does not affect the manner in which Env-A 619.03(b)-(e) functions. New 
Hampshire and EPA may take action on the revision to Env-A 619.03(a) in 
the future.
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    \7\ Env-A 623 was renumbered to Env-A 619 for reasons unrelated 
to the Tailoring Rule or this proposed revision.
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    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 52.1522 by 
removing subsection (c).
    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 
rule.

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 
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).
    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. 
804(2).
    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 April 6, 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 
requirements.

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

    Dated: January 11, 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:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart EE--New Hampshire

0
2. In Sec.  52.1520, the table in paragraph (c) is amended by revising 
the entries for Env-A 100 and Env-A 600 to read as follows:


Sec.  52.1520  Identification of plan.

* * * * *
    (c) EPA approved regulations.

[[Page 5703]]



                                     EPA Approved New Hampshire Regulations
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                                                        State effective   EPA approval date
         State citation              Title/subject           date                \1\             Explanations
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Env-A 100.......................  Organizational             12/21/2010  2/6/2012 [Insert     Added sections
                                   Rules: Definitions.                    Federal Register     101.35, Env-A
                                                                          page number where    101.96, and Env-A
                                                                          the document         101.115.
                                                                          begins].
 
                                                  * * * * * * *
Env-A 600.......................  Statewide Permit           12/21/2010  2/6/2012 [Insert     Added section Env-
                                   System.                                Federal Register     A 619.03(b)-(e).
                                                                          page number where
                                                                          the document
                                                                          begins].
 
                                                  * * * * * * *
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\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.

* * * * *


Sec.  52.1522  [Amended]

0
3. Section 52.1522 is amended by removing paragraph (c).

[FR Doc. 2012-2598 Filed 2-3-12; 8:45 am]
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