[Federal Register Volume 80, Number 88 (Thursday, May 7, 2015)]
[Rules and Regulations]
[Pages 26183-26189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10628]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2015-0071; FRL-9926-98-OAR]
RIN 2060-AS57
Prevention of Significant Deterioration Permitting for Greenhouse
Gases: Providing Option for Rescission of EPA-Issued Tailoring Rule
Step 2 Prevention of Significant Deterioration Permits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to amend the federal Prevention of Significant
Deterioration (PSD) program regulations to allow for rescission of
certain PSD permits issued by the EPA and delegated reviewing
authorities under Step 2 of the Prevention of Significant Deterioration
and Title V Greenhouse Gas (GHG) Tailoring Rule (Tailoring Rule). We
are taking this action in order to provide a mechanism for the EPA and
delegated reviewing authorities to rescind PSD permits that are no
longer required in light of the United States (U.S.) Supreme Court's
decision in Utility Air Regulatory Group (UARG) v. EPA and the amended
appeals court judgment in Coalition for Responsible Regulation
(Coalition) v. EPA, vacating that rule. These decisions determined that
Step 2 of the Tailoring Rule was not required under the Clean Air Act
(CAA or Act)
[[Page 26184]]
and vacated the EPA regulations implementing Step 2. When effective,
this action will authorize the EPA and delegated reviewing authorities
to rescind Step 2 PSD permits in response to requests from applicants
who can demonstrate that they are eligible for permit rescission.
DATES: This rule is effective on July 6, 2015 without further notice,
unless the EPA receives adverse comment by June 8, 2015. If the EPA
receives adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. If anyone contacts the EPA requesting to speak at a public
hearing by May 18, 2015, the EPA will hold a public hearing on May 22,
2015 in Research Triangle Park, North Carolina.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2015-0071, by one of the following methods:
http://www.regulations.gov. Follow the online instructions
for submitting comments.
Email: [email protected]. Include docket ID No. EPA-
HQ-OAR-2015-0071 in the subject line of the message.
Fax: (202) 566-9744.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Mail Code 28221T, Attention Docket ID No. EPA-HQ-OAR-2015-0071,
1200 Pennsylvania Avenue NW., Washington, DC 20460.
Hand/Courier Delivery: EPA Docket Center, Room 3334, EPA
William Jefferson Clinton West Building, 1301 Constitution Avenue NW.,
Washington, DC 20004, Attention Docket ID No. EPA-HQ-OAR-2015-0071.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2015-0071. The 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 information
that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means the EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an email comment directly to the EPA
without going through http://www.regulations.gov, your email 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, the EPA recommends that you include
your name and other contact information in the body of your comment and
with any CD you submit. If the EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, avoid any form of encryption and
be free of any defects or viruses. For additional information about the
EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at http://www.regulations.gov or in hard copy at the EPA Docket Center,
Room 3334, EPA William Jefferson Clinton West Building, 1301
Constitution Avenue NW., Washington, DC 20004. The Public Reading Room
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Office of Air and
Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Questions concerning this direct final
should be addressed to Mrs. Jessica Monta[ntilde]ez, U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards, Air
Quality Planning Division, (C504-03), Research Triangle Park, NC 27711,
telephone number (919) 541-3407, email at [email protected]. To
request a public hearing or questions concerning a public hearing,
please contact Ms. Pamela Long, U.S. Environmental Protection Agency,
Office of Air Quality Planning and Standards, Air Quality Planning
Division, (C504-01), Research Triangle Park, NC 27711, telephone number
(919) 541-0641, email at [email protected].
SUPPLEMENTARY INFORMATION: The information in this SUPPLEMENTARY
INFORMATION section of this preamble is organized as follows:
I. Why is the EPA using a direct final rule?
II. Does this action apply to me?
III. Background
A. What is the PSD program?
B. What is the Tailoring Rule?
C. What is the UARG v. EPA decision and why does the EPA need to
revise the permit rescission provisions under 40 CFR 52.21(w) in
light of the decision?
1. What is the UARG v. EPA U.S. Supreme Court decision?
2. Why are we revising the permit rescission provisions under 40
CFR 52.21(w) in light of the Supreme Court decision in UARG v. EPA
and the amended appeals court judgment in Coalition?
IV. Direct Final Action
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executve Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution and Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
L. Determination Under Section 307(d)
VII. Judicial Review
I. Why is the EPA using a direct final rule?
The EPA is publishing this rule without a prior proposed rule
because we view this as a non-controversial amendment and anticipate no
adverse comment. This action narrowly amends the permit rescission
provisions in the federal PSD regulations found in 40 CFR 52.21(w) to
allow for the rescission of EPA-issued PSD permits \1\ that were
[[Page 26185]]
issued under Step 2 of the Tailoring Rule \2\ permitting regulations.
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\1\ For purposes of this rule, the phrases ``EPA-issued PSD
permits that were issued under Step 2 of the Tailoring Rule'' and
``EPA-issued Step 2 PSD permits'' are intended to have the same
meaning. The use of the term ``EPA-issued'' in both phrases includes
PSD permits issued by the EPA as well as permits issued by state or
local reviewing authorities exercising federal law authority
delegated by an EPA Regional Office under 40 CFR 52.21(u).
\2\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule (75 FR 31514, June 3, 2010); 40 CFR
52.21(b)(49)(v).
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The U.S. Supreme Court determined the permitting requirements under
Step 2 of the Tailoring Rule to be invalid in UARG v. EPA, 134 S. Ct.
2427 (2014). The Supreme Court affirmed in part and reversed in part an
earlier decision of the United States Court of Appeals for the District
of Columbia Circuit (D.C. Circuit) in Coalition for Responsible
Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012). In further
proceedings upon consideration of the Supreme Court decision, the D.C.
Circuit amended its judgment in the Coalition case. The Amended
Judgment vacated particular provisions of the EPA's regulations
implementing Step 2 of the Tailoring Rule.
This direct final action does not itself rescind any permits; it
only provides the regulatory mechanism through which the EPA or state
or local program administering the PSD program through a delegation of
federal authority from the EPA could rescind, upon request of a source,
an EPA-issued Step 2 PSD permit consistent with the U.S. Supreme Court
decision and the amended judgment of the D.C. Circuit vacating the
regulations. However, in the ``Proposed Rules'' section of this Federal
Register publication, we also are publishing a separate document that
will serve as the proposed rule to amend the same federal PSD
regulations at 40 CFR 52.21(w) if adverse comments are received on this
direct final rule. If the EPA receives adverse comment, we will publish
a timely withdrawal in the Federal Register informing the public that
this direct final rule will not take effect. In that case, we would
address all public comments in any subsequent final rule based on the
proposed rule. We will not institute a second comment period on the
proposed rule, and any parties interested in commenting must do so at
this time. For further information about commenting on the proposed
rule, see the ADDRESSES section in that separate document in this
Federal Register publication.
II. Does this action apply to me?
The entities potentially affected by this rule include new and
modified stationary sources that obtained an EPA-issued Step 2 PSD
permit under the federal PSD regulations found at 40 CFR 52.21 solely
because the source or a modification of the source was expected to emit
or increase GHG emissions over the applicable thresholds. This includes
(1) sources classified as major for PSD purposes solely on the basis of
their potential GHG emissions; and (2) sources emitting major amounts
of other pollutants that experienced a modification resulting in an
increase of only GHG emissions above the applicable levels in the EPA
regulations. Entities affected by this rule may also include state or
local reviewing authorities that have been delegated federal authority
to implement the federal PSD regulations under 40 CFR 52.21(u) and that
have issued Step 2 PSD permits to sources within their jurisdiction.
This rule does not address the requirements for approval of a PSD
program into a state implementation plan (40 CFR 51.166) or the
rescission of PSD permits issued by states and local programs with such
approved programs. Stationary sources with questions on the PSD
permitting obligations arising from Step 2 PSD permits issued by state
or local reviewing authorities under the permitting programs approved
into state implementation plans should review the governing statutory
provisions and provisions in the applicable approved state or local
permitting program to determine how to address any Step 2 PSD
permitting issues and consult with the EPA as necessary.
III. Background
A. What is the PSD program?
Part C of title I of the Act contains the requirements for a
component of the major New Source Review (NSR) program known as the PSD
program. This program sets forth procedures for the construction review
and permitting of new and modified stationary sources of air pollution
locating in areas meeting the National Ambient Air Quality Standards
(NAAQS) (``attainment'' areas) and areas for which there is
insufficient information to classify an area as either attainment or
nonattainment (``unclassifiable'' areas).
The applicability of PSD to a particular source must be determined
in advance of construction of a new source or major modification of an
existing source and is pollutant-specific. Once a source is determined
to be subject to PSD, among other requirements, the source must
demonstrate that it will not cause or contribute to a violation of any
NAAQS or PSD increment,\3\ and that it will use the Best Available
Control Technology (BACT).\4\
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\3\ CAA section 165(a)(3).
\4\ CAA section 165(a)(4).
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The reviewing authority must provide notice of its preliminary
decision on a source's application for a PSD permit, and must provide
an opportunity for comment by the public, industry, and other
interested persons. After considering and responding to comments, the
reviewing authority must issue a final determination on the permit.
B. What is the Tailoring Rule?
On June 3, 2010, the EPA issued a final rule, known as the
Tailoring Rule, which phased in permitting requirements for GHG
emissions from stationary sources under the CAA PSD and title V
permitting programs (75 FR 31514).
For Step 1 of the Tailoring Rule, which began on January 2, 2011,
PSD or title V requirements applied to sources' GHG emissions only if
the sources were subject to PSD or title V ``anyway'' due to their
emissions of non-GHG pollutants. These sources are referred to as
``anyway sources.'' Step 2 of the Tailoring Rule, which began on July
1, 2011, applied the PSD and title V permitting requirements under the
CAA to sources that were classified as major, and, thus, required to
obtain a permit, based solely on their potential GHG emissions and to
modifications of otherwise major sources that required a PSD permit
because they increased only GHG above applicable levels in the EPA
regulations.
C. What is the UARG v. EPA decision and why does the EPA need to revise
the permit rescission provisions under 40 CFR 52.21(w) in light of the
decision?
1. What is the UARG v. EPA U.S. Supreme Court decision?
On June 23, 2014, the U.S. Supreme Court issued a decision in UARG
v. EPA, 134 S. Ct. 2427, addressing the application of stationary
source permitting requirements to GHGs. In summary, the U.S. Supreme
Court said that the EPA may not treat GHGs as an air pollutant for the
specific purpose of determining whether a source (or a modification
thereof) is required to obtain a PSD or title V permit,\5\ and
[[Page 26186]]
declared that the EPA regulations implementing that approach for
determining permitting applicability are invalid. However, the U.S.
Supreme Court also said that the EPA could continue to require that PSD
permits, otherwise required based on emissions of conventional
pollutants (i.e., non-GHG pollutants), contain limitations on GHG
emissions based on the application of BACT. That is, the ruling
effectively upheld PSD permitting requirements for GHG emissions under
Step 1 of the Tailoring Rule for ``anyway sources,'' and invalidated
PSD permitting requirements for Step 2 sources.
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\5\ Among other things, title V of the CAA requires all major
stationary sources of air pollution and certain other sources to
apply for a title V operating permit that includes emission
limitations and other conditions as necessary to assure compliance
with applicable requirements of the CAA. The title V operating
permit program is a vehicle for ensuring that air quality control
requirements are appropriately applied to facility emission units
and for assuring compliance with such requirements, but does not
generally impose new substantive air quality control requirements.
The title V program is implemented through regulations promulgated
under 40 CFR part 70, for programs implemented by state or local
agencies and tribes, and 40 CFR part 71, for programs generally
implemented by the EPA.
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To describe the EPA's preliminary views on the U.S. Supreme Court
decision, on July 24, 2014, the EPA issued a memorandum titled, ``Next
Steps and Preliminary Views on the Application of Clean Air Act
Permitting Programs to Greenhouse Gases Following the Supreme Court's
Decision in UARG v. EPA'' (Preliminary Views Memo).\6\ In that
memorandum, the EPA explained that it ``will no longer require PSD . .
. permits for Step 2 sources'' (Preliminary Views Memo at 2) and that
the EPA expected ``to provide additional views in the future with
respect to Step 2 sources that had already obtained a PSD permit . .
.'' (Preliminary Views Memo at 4).
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\6\ http://epa.gov/nsr/documents/20140724memo.pdf.
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The EPA provided additional views regarding EPA-issued Step 2
permits when it issued two memoranda on December 19, 2014. In the
memorandum issued by the Office of Air and Radiation (OAR) and titled,
``Next Steps for Addressing EPA-Issued Step 2 Prevention of Significant
Deterioration Greenhouse Gas Permits and Associated Requirements'' (OAR
Next Steps Memo),\7\ the EPA explained that it intended to complete
this rulemaking ``authorizing the rescission of Step 2 PSD permits.''
In the second memorandum, which was issued by the Office of Enforcement
and Compliance Assurance (OECA) and titled, ``No Action Assurance
Regarding EPA-Issued Step 2 Prevention of Significant Deterioration
Permits and Related Title V Requirements Following Utility Air
Regulatory Group v. Environmental Protection Agency'' (OECA No Action
Assurance Memo),\8\ OECA issued a narrowly tailored No Action Assurance
for sources with EPA-issued Step 2 PSD permits. The OECA No Action
Assurance Memo establishes that the EPA will exercise its enforcement
discretion not to pursue enforcement of the terms and conditions
relating to GHGs in a source's EPA-issued Step 2 PSD permit, and for
related GHG terms and conditions that are contained in the source's
title V permit, if any.
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\7\ http://epa.gov/nsr/ghgdocs/Step2PermitRescissinsMemoFinal_12-19-14.pdf.
\8\ http://epa.gov/nsr/ghgdocs/OECANoActionAssuranceMemo_December192014.pdf.
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The Supreme Court decisions affirmed in part and reversed in part
an earlier decision of the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) in Coalition for
Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012). In
further proceedings upon consideration of the opinion in UARG, on April
10, the D.C. Circuit in Coalition issued an amended judgment in
accordance with that decision. Coalition for Responsible Regulation,
Inc. v. EPA, Nos. 09-1322, 10-073, 10-1092 and 10-1167 (D.C. Cir. April
10, 2015) (Amended Judgment). As relevant to this rulemaking action,
the court ordered that the EPA regulations under review (including 40
CFR 52.21(b)(49)(v)) be vacated to the extent they require a stationary
source to obtain a PSD permit if greenhouse gases are the only
pollutant (i) that the source emits or has the potential to emit above
the applicable major source thresholds, or (ii) for which there is a
significant emissions increase from a modification.
We are aware that between the effective date of Step 2 (July 1,
2011) and the date of the UARG v. EPA decision (June 23, 2014), several
sources obtained EPA-issued Step 2 PSD permits either directly from the
EPA or from state or local agencies with delegated PSD programs under
40 CFR 52.21 because the sources (or modifications thereof) were
classified as ``major'' solely on the basis of their GHG emissions. For
some of these sources, the appropriate reviewing authorities also
issued title V permits that incorporated the terms and conditions of
the EPA-issued Step 2 PSD permits. To ensure this rule covers all
stationary sources eligible for rescission of EPA-issued Step 2 PSD
permits, this action provides that owners or operators of stationary
sources with EPA-issued Step 2 PSD permits with final permit issuance
dates from July 1, 2011 to 60 days after the effective date of this
rule would be able to request a permit rescission from EPA or delegated
reviewing authorities as applicable. For more information on the
process for requesting a permit rescission for EPA-issued Step 2 PSD
permits, see section V of this action titled, ``Direct Final Action.''
2. Why are we revising the permit rescission provisions under 40 CFR
52.21(w) in light of the U.S. Supreme Court decision in UARG v. EPA and
the amended appeals court judgment in Coalition?
To implement the U.S. Supreme Court's decision and the amended
appeals court judgment vacating the regulations implementing Step 2 of
the Tailoring Rule, it is necessary to undertake a process to rescind
PSD Step 2 permits. The EPA's implementing permitting regulations at 40
CFR 52.21 provide that ``[a]ny [PSD] permit issued under this section
or a prior version of this section shall remain in effect, unless and
until it expires . . . or is rescinded'' (40 CFR 52.21(w)(l)).
Section 52.21(w) provides authority for a source holding a PSD
permit to request rescission of the permit and for the EPA to ``grant
an application for rescission if the applicant shows that this section
[40 CFR 52.21] would not apply to the source or modification.''
However, as currently written, the scope of this rescission authority
is limited to permits issued under 40 CFR 52.21 as in effect on or
before July 30, 1987. Since any EPA-issued Step 2 PSD permits were
issued under regulations effective after July 30, 1987, the rescission
authority in 40 CFR 52.21(w) is not currently available to sources with
EPA-issued Step 2 PSD permits. This rulemaking action is a narrow
revision to 52.21(w) solely to enable the rescission of Step 2 PSD
permits consistent with the U.S. Supreme Court decision and the D.C.
Circuit amended judgment.
This rule does not address any issues concerning the federal PSD
permit rescission regulations at 40 CFR 52.21(w) that are not related
to the Supreme Court decision in UARG v. EPA and the amended appeals
court judgment vacating the Step 2 regulations. We recognize, however,
that other circumstances may arise in the future where the appropriate
course of action may be permit rescission. We would expect these
circumstances to be rare. Under the current rules, a rulemaking would
need to be undertaken in each such circumstance as we are doing here.
Therefore, the EPA is developing a separate rulemaking action that will
provide an opportunity for the public to comment on any other
situations where the July 30, 1987 date in 52.21(w) may be an
impediment to the rescission of PSD permits under particular
circumstances where that might be appropriate.
[[Page 26187]]
IV. Direct Final Action
In this action, the EPA is revising 40 CFR 52.21(w)(2) by adding
references to 40 CFR 52.21(49)(b)(v)(a) and (b) to allow for rescission
of any EPA-issued Step 2 PSD permits upon request by the permitted
source, which is consistent with the EPA's understanding of the Supreme
Court decision and the amended appeals court judgment vacating the
regulations. In addition, the EPA is adding the following sentence to
40 CFR 52.21(w)(3) to make clear that PSD requirements no longer apply
to Step 2 sources: ``As a result of a decision of the U.S. Supreme
Court, this section does not apply to sources or modifications that
meet only the applicability criteria in 40 CFR 52.21(b)(49)(v).''
This regulatory action does not make any change to 40 CFR
52.21(w)(1) or (4). In addition, it does not affect the standard for
determining whether a source is eligible for permit rescission under 40
CFR 52.21(w)(3). It serves only to revise 40 CFR 52.21(w)(2)-(3) of the
EPA's federal PSD regulations to authorize the EPA to undertake permit
rescissions for EPA-issued Step 2 PSD permits. As the EPA previously
explained in its December 19, 2014, OAR Next Steps Memo, once this rule
is final, sources with EPA-issued Step 2 PSD permits will be able to
seek a permit rescission from the EPA or delegated state or local
reviewing authority.
Specifically, consistent with the 2014 OAR Next Steps Memo at page
3, the EPA expects that PSD permit-holders interested in qualifying for
the rescission of an EPA-issued Step 2 PSD permit under 40 CFR 52.21(w)
will need to provide information to demonstrate that either (1) the
source did not, at the time the source obtained its EPA-issued Step 2
PSD permit, emit or have the potential to emit any regulated pollutant
other than GHGs above the major source threshold applicable to that
type of source; or (2) a modification at a source emitting major
amounts of a regulated NSR pollutant other than GHGs did not result in
an increase in emissions of any regulated pollutant other than GHGs in
an amount equal to or greater than the applicable significance level
for that pollutant. Furthermore, the EPA intends to consider whether
the EPA or another reviewing authority is relying on the EPA-issued
Step 2 PSD permit for any other regulatory purpose. Rescission of a PSD
permit that is no longer required should not extend to eliminate
regulatory obligations that remain regarding non GHG-pollutants or
inadvertently place the permitted source in a situation where it may be
out of compliance with other requirements that the PSD permit
satisfied. For example, as noted in the memoranda mentioned previously,
a source with an EPA-issued Step 2 PSD permit may now have other
regulatory or permitting obligations (e.g., minor NSR requirements),
which generally concern sources emitting pollutants subject to a NAAQS.
The source may have previously not needed to obtain a minor source
permit because it used its Step 2 permit to satisfy its preconstruction
permitting obligations, but it might now need to obtain a minor NSR
permit. Until such time as the source and the permitting authority can
determine whether and how to replace Step 2 PSD permit conditions for
such pollutants with a permit satisfying minor NSR requirements,
continued compliance with PSD permit terms and conditions for such
permits is important to protect the NAAQS, and rescission may, thus, be
premature. Further, if the GHG condition in an EPA-issued Step 2 PSD
permit has been used to satisfy another state or federal requirement,
rescission may not be appropriate without assurances that another
method will be established for complying with other federal, state, and
local requirements (e.g., if the state is presuming the source builds
consistent with the efficiency requirement in the EPA-issued Step 2
permit in order to satisfy other state air pollution requirements). In
sum, the rescission of any EPA-issued Step 2 PSD permits should not
proceed without an understanding of how minor source construction
permitting requirements and other legal obligations will be met going
forward. Since the EPA generally does not issue construction permits
for minor sources except in Indian country, the EPA Regional Offices
and sources holding EPA-issued Step 2 PSD permits should consult with
the appropriate state or local reviewing authorities and develop a plan
to ensure that sources remain in compliance with applicable minor
source and other legal requirements after rescission of EPA-issued Step
2 PSD permits.
As part of the rescission process for EPA-issued Step 2 PSD
permits, the EPA anticipates that some sources will also want to seek
revisions to title V operating permits that include the EPA-issued Step
2 PSD permit terms and conditions. Therefore, once an EPA-issued Step 2
PSD permit is formally rescinded by the EPA or delegated reviewing
authority, the EPA or delegated reviewing authority will encourage the
applicable title V state or local permitting authorities to take
appropriate actions with the sources to resolve any issues related to
the incorporation of the EPA-issued PSD Step 2 permit requirements into
title V permits that have already been issued and as further described
in the OAR Next Steps Memo at page 4. The EPA is not revising its title
V regulations in this action because the EPA believes that its existing
title V regulations contain sufficient procedures for the actions
discussed in the OAR Next Steps Memo and no revisions to EPA's title V
regulations are necessary to enable these steps to proceed.
This action only contains the regulatory revisions necessary to
allow for rescission of EPA-issued Step 2 PSD permits in order to
conform to the U.S. Supreme Court decision and the amended judgment of
the D.C. Circuit. In this action, the EPA is not making any other
regulatory changes in response to the U.S. Supreme Court's decision or
the amended judgment of the D.C. Circuit. The EPA intends to take
additional rulemaking action to remove the vacated provisions from the
Code of Federal Regulations and make further revisions to its PSD and
title V regulations, as appropriate.
V. Environmental Justice Considerations
This action amends one provision of the federal PSD program
regulations to allow for the rescission of EPA-issued Step 2 PSD
permits in order to conform to a decision by the U.S. Supreme Court
that declared invalid regulations that implemented the requirement that
Step 2 sources obtain PSD permits and an amended judgment by the D.C.
Circuit vacating those regulations. When effective, this action will
authorize the EPA and delegated reviewing authorities to rescind Step 2
PSD permits in response to requests from applicants who can demonstrate
that they are eligible for permit rescission. Therefore, this action
itself does not compel any specific permit action that will affect the
fair treatment and meaningful involvement of all people. Rather, it
ensures that the EPA has the authority to implement the U.S. Supreme
Court's decision and the amended judgment of the D.C. Circuit.
Rescission of any EPA-issued Step 2 PSD permits under this rule
revision would follow all applicable permitting requirements.
[[Page 26188]]
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control number 2060-0003.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. This rule relieves regulatory burden by
providing a mechanism for the EPA and delegated reviewing authorities
to rescind PSD permits that are no longer required in light of the U.S.
Supreme Court decision in UARG v. EPA, which invalidates Step 2 of the
Tailoring Rule and of the amended judgment of the D.C. Circuit vacating
that rule. We have, therefore, concluded that this action will relieve
regulatory burden for all directly regulated small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector to rescind these EPA-
issued Step 2 PSD permits. Sources can ask for rescission of their EPA-
issued Step 2 PSD permits at their discretion.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175. Although the Tribal Air Rule (76 FR 38748, July
1, 2011) under the CAA gives tribes the opportunity to request and be
granted delegation of the federal PSD program found at 40 CFR 52.21 to
issue PSD permits, there are no tribal agencies currently implementing
the federal PSD permitting program. As a result, this action will not
affect any tribal reviewing authorities. In addition, any tribally-
owned sources with EPA-issued Step 2 PSD permits have the discretion to
request the EPA to rescind their permit. Thus, Executive Order 13175
does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. The results of this evaluation are contained
in the section VI titled, ``Environmental Justice Considerations'' for
this action.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the U.S. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
L. Determination Under Section 307(d)
Pursuant to CAA section 307(d)(1)(V), the Administrator determines
that this action is subject to provisions of section 307(d). Section
307(d) establishes procedural requirements specific to rulemaking under
the CAA. Section 307(d)(1)(V) provides that the provisions of section
307(d) apply to ``such other actions as the Administrator may
determine.''
VII. Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the U.S. Court of Appeals for the D.C.
Circuit within 60 days from May 7, 2015. 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) of the CAA).
Parties with objections to this direct final rule are encouraged to
file any comment in response to the parallel notice of proposed
rulemaking for this action published in the ``Proposed Rules'' section
of this Federal Register publication, rather than file an immediate
petition for judicial review of this direct final rule to allow the EPA
to withdraw this direct final rule and address the comment(s) in the
proposed rulemaking.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, National ambient air quality standards, New source
review, Nitrogen dioxide, Ozone, Particulate matter, Permit
rescissions, Preconstruction permitting, Sulfur oxides, Tailoring rule,
Volatile organic compounds.
Dated: April 30, 2015.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, title 40, Chapter I of the
Code of Federal Regulations is amended as follows:
[[Page 26189]]
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTAION 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
0
2. Section 52.21 is amended by revising paragraphs (w)(2) and (3) to
read as follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
* * * * *
(w) * * *
(2) Any owner or operator of a stationary source or modification
who holds a permit for the source or modification may request that the
Administrator rescind the permit or a particular portion of the permit
if the permit for the source or modification was issued:
(i) Under Sec. 52.21 as in effect on July 30, 1987 or any earlier
version of this section;
(ii) Under Sec. 52.21 between July 1, 2011 and July 6, 2015 to a
source that was classified as a major stationary source under paragraph
(b)(1) of this section solely on the basis of potential emissions of
greenhouse gases, which were defined as a regulated NSR pollutant
through the application of paragraph (b)(49)(v)(a) of this section as
in effect during this time period; or
(iii) Under Sec. 52.21 between July 1, 2011 and July 6, 2015 for a
modification that was classified as a major modification under
paragraph (b)(2) solely on the basis of an increase in emissions of
greenhouse gases, which were defined as a regulated NSR pollutant
through the application of paragraph (b)(49)(v)(b) of this section as
in effect during this time period.
(3) The Administrator shall grant an application for rescission if
the application shows that this section would not apply to the source
or modification. As a result of a decision of the United States Supreme
Court, this section does not apply to sources or modifications that
meet only the applicability criteria in paragraph (b)(49)(v) of this
section.
* * * * *
[FR Doc. 2015-10628 Filed 5-6-15; 8:45 am]
BILLING CODE 6560-50-P