[Federal Register Volume 81, Number 6 (Monday, January 11, 2016)]
[Proposed Rules]
[Pages 1141-1144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33098]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2015-0783; FRL-9940-79-Region 6]


Approval and Promulgation of Implementation Plans; Arkansas; New 
Mexico; Oklahoma; Disapproval of Greenhouse Gas Biomass Deferral, Step 
2 and Minor Source Permitting Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove severable portions of the February 6, 2012 Oklahoma State 
Implementation Plan (SIP) submittal that are now inconsistent with 
federal laws due to intervening decisions by the United States Courts 
and EPA rulemaking. This submittal establishes Minor New Source Review 
permitting requirements for greenhouse gas (GHG) emissions and includes 
Prevention of Significant Deterioration (PSD) permitting provisions for 
sources that are classified as major, and, thus, required to obtain a 
PSD permit, based solely on their potential GHG emissions. The PSD 
permitting provisions also require a PSD permit for modifications of 
otherwise major sources because they increased only GHG above 
applicable levels. Additionally, we are proposing to disapprove 
severable portions of SIP submittals for the States of Arkansas, New 
Mexico, and Oklahoma addressing the EPA's July 20, 2011 rule deferring 
PSD requirements for carbon dioxide (CO2) emissions from 
bioenergy and other biogenic sources (``Biomass Deferral''). We are 
proposing to disapprove the provisions adopting the Biomass Deferral 
because the deferral has expired, so the provisions are no longer 
consistent with federal laws. The EPA is proposing this disapproval 
under section 110 and part C of the Act.

DATES: Written comments must be received on or before February 10, 
2016.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2015-0783, at http://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Ms. Adina Wiley, (214) 
665-2115, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at the EPA 
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. 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 at either location 
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, (214) 665-2115, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Ms. Adina Wiley or Mr. Bill Deese at 214-
665-7253.

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

I. Background

A. The February 6, 2012 Oklahoma SIP Submittal

    On February 6, 2012, Oklahoma submitted revisions to the Oklahoma 
permitting programs for approval by the EPA into the Oklahoma SIP, 
including new Minor New Source Review (NSR) permitting requirements for 
GHG emissions at OAC 252:100-7-2.1 and revisions to the Oklahoma PSD 
program at OAC 252:100-8-31 (the definition of ``subject to 
regulation'') to require PSD permits for sources solely because of GHG 
emissions. In addition, the submittal included many other updates to 
the Oklahoma SIP, unrelated to GHG permitting, which the EPA is 
addressing in separate actions. However, today's action only addresses 
the provisions for GHG permitting that are inconsistent with federal 
laws.

B. The November 6, 2012 Arkansas SIP Submittal

    On November 6, 2012, Arkansas submitted revisions to the Arkansas 
Pollution Control and Ecology Commission's Regulations, Chapters 2, 4 
and 9 for approval by the EPA into the Arkansas SIP. The EPA finalized 
our approval of the submitted revisions to the Arkansas PSD program at 
Regulation 19, Chapter 9 that provide the State of Arkansas with the 
authority to issue PSD permits governing GHG emissions on April 2, 
2013, at 63 FR 19596. The EPA finalized approval of the other parts of 
the submittal on March 4, 2015, with the exception of the severable 
components of the submittal at Regulation 19, Chapter 4 specific to the 
Arkansas Minor NSR program, and the severable portion of the definition 
of ``CO2 Equivalent Emissions'' implementing the Biomass 
Deferral at Regulation 19, Chapter 2. Today's action only addresses the 
severable portion of the definition of ``CO2 Equivalent 
Emissions'' at Regulation 19, Chapter 2 submitted on November 6, 2012. 
The EPA will address the revisions to the Arkansas Minor NSR program at 
Regulation 19, Chapter 4 in a separate action, at a later date.

C. The January 8, 2013 New Mexico SIP Submittal

    On January 8, 2013, New Mexico submitted regulations specific to 
the New Mexico PSD permitting program for approval by the EPA into the 
New Mexico SIP. The EPA finalized approval of a portion of this 
submittal pertaining to plantwide applicability limits for GHGs on 
December 11, 2013, at 78 FR 75253. The submittal also included 
revisions to the PSD permitting provisions that were adopted on January 
7, 2013, at 20.2.74 NMAC to defer the application of the PSD 
requirements to CO2 emissions from bioenergy and other 
biogenic stationary sources consistent with the Biomass Deferral. The 
revisions to 20.2.74 NMAC to adopt the Biomass

[[Page 1142]]

Deferral that are the subject of today's rulemaking are the only 
portions of the submittal remaining before the EPA for review and 
approval.

D. The January 18, 2013 Oklahoma SIP Submittal

    On January 18, 2013, Oklahoma submitted revisions to the Oklahoma 
regulations for approval by the EPA into the Oklahoma SIP that included 
provisions in the general definitions at OAC 252:100-1-3 and OAC 
252:100-8-31 to defer the application of the PSD requirements to 
biogenic CO2 emissions from bioenergy and other biogenic 
stationary sources that are the subject of today's rulemaking. The 
submittal also included many other updates to the Oklahoma SIP which 
the EPA is addressing in separate actions.

II. The EPA's Evaluation

A. Oklahoma SIP Submission Addressing Permitting of GHG Emissions in 
Oklahoma

    On February 6, 2012, the Oklahoma Department of Environmental 
Quality submitted a revision to the Oklahoma SIP that included, among 
other things, provisions to regulate the emissions of GHGs in 
construction permitting programs. The revisions to the Oklahoma Minor 
Source Permitting Program at OAC 252:100-7-2.1 establish a mechanism 
for sources in Oklahoma to take enforceable emissions limitations on 
GHGs to avoid becoming a major source for GHG emissions under the 
Oklahoma PSD program. The revisions to the Oklahoma PSD program at OAC 
252:100-8-31 adopted a new definition of ``subject to regulation'' to 
identify when emissions of GHGs would be regulated under the PSD 
program. The revisions to the Oklahoma PSD program submitted were 
consistent with the EPA's June 3, 2010, final rule ``Prevention of 
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule'' 
(75 FR 31514) (hereafter referred to as the ``Tailoring Rule'').
    The Tailoring Rule phased in permitting requirements for GHG 
emissions from stationary sources under the CAA PSD and title V 
permitting programs. In Step 1 of the Tailoring Rule, which began on 
January 2, 2011, the EPA limited application of PSD and title V 
requirements to sources of GHG emissions only if they were subject to 
PSD or title V ``anyway'' due to their emissions of pollutants other 
than GHGs. These sources are referred to as ``anyway sources.'' In Step 
2 of the Tailoring Rule, which began on July 1, 2011, the PSD and title 
V permitting requirements under the CAA applied to some sources that 
were classified as major, and, thus, required to obtain a permit, based 
solely on their GHG emissions or potential to emit GHGs, and to 
modifications of otherwise major sources that required a PSD permit 
because they increased only GHG emissions above the level in the EPA 
regulations. We generally describe the sources covered by PSD during 
Step 2 of the Tailoring Rule as ``Step 2 sources.''
    On June 23, 2014, the U.S. Supreme Court issued a decision in 
Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427, addressing 
the application of PSD and title V permitting requirements to GHG 
emissions. The U.S. Supreme Court held that the EPA may not treat GHGs 
as an air pollutant for the specific purpose of determining whether a 
source is a major source (or a modification thereof) and thus required 
to obtain a PSD or title V permit. The Court also said that the EPA 
could continue to require that PSD permits, otherwise required based on 
emissions of pollutants other than GHGs, contain limitations on GHG 
emissions based on the application of Best Available Control Technology 
(BACT). With respect to PSD, 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.
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the DC 
Circuit) issued an Amended Judgment vacating the regulations that 
implemented Step 2 of the Tailoring Rule, but not the regulations that 
implement Step 1 of that rule. With respect to Step 2 sources, the DC 
Circuit's amended judgment ordered that the EPA regulations under 
review (including 40 CFR 51.166(b)(48)(v) and 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.''
    The EPA promulgated a final rule on August 19, 2015, removing the 
PSD permitting provisions for Step 2 sources from the federal 
regulations that the DC Circuit specifically identified as vacated (40 
CFR 51.166(b)(48)(v) and 52.21(b)(49)(v)). Consistent with our August 
19, 2015 final rule, the EPA is proposing to disapprove the submitted 
revisions at OAC 252:100-7-2.1 and OAC 252:100-8-31 that pertain to the 
minor source permitting of GHGs and the PSD permitting of Step 2 
sources.

B. SIP Submissions Addressing the GHG Biomass Deferral in Arkansas, New 
Mexico and Oklahoma

    On July 20, 2011, the EPA finalized a rulemaking entitled 
``Deferral for CO2 Emissions From Bioenergy and Other 
Biogenic Sources Under the Prevention of Significant Deterioration 
(PSD) and Title V Programs''. (76 FR 43490) (``Biomass Deferral''). 
This rule deferred (for three years) the applicability of PSD and title 
V requirements CO2 emissions from biogenic sources.\1\ On 
July 12, 2013, the DC Circuit, in Center for Biological Diversity v. 
EPA, 722 F.3d 401, vacated the provisions of the Biomass Deferral. Due 
to a series of extension requests and rehearing proceedings, the court 
did not issue its mandate making the vacatur effective until August 10, 
2015. However, the Biomass Deferral expired by its own terms on July 
21, 2014. For both reasons, the Biomass Deferral is no longer 
applicable under federal laws.
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    \1\ Emissions of CO2 from a stationary source 
directly resulting from the combustion or decomposition of 
biologically-based materials other than fossil fuels and mineral 
sources of carbon (e.g., calcium carbonate) and biologically-based 
material (nonfossilized and biodegradable organic material 
originating from plants, animals or micro-organisms [including 
products, by-products, residues and waste from agriculture, forestry 
and related industries as well as the nonfossilized and 
biodegradable organic fractions of industrial and municipal wastes, 
including gases and liquids recovered from the decomposition of non-
fossilized and biodegradable organic material]).
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    Our analysis, available in our Technical Support Document in the 
rulemaking docket, finds that the States of Arkansas, New Mexico and 
Oklahoma each adopted and submitted as revisions to their respective 
SIPs, provisions that were substantively consistent with the 
requirements of the EPA's now-expired Biomass Deferral. However, 
because the deferral expired on July 21, 2014, and the court issued its 
mandate, these provisions are no longer available for use under federal 
PSD regulations and should not be approved into a state's PSD SIP. For 
that reason, we are proposing to disapprove these provisions.

C. Evaluation of the Submitted Revisions Under Section 110 of the CAA

    The EPA has an obligation under section 110 of the CAA to act on 
submitted SIP revisions unless these revisions are withdrawn by the 
State. Because these provisions have not yet been withdrawn from our 
consideration, the EPA has a duty to act on the

[[Page 1143]]

submitted provisions pertaining to the PSD permitting of Step 2 sources 
in the Oklahoma SIP and the provisions incorporating the now-expired 
Biomass Deferral into the Arkansas, New Mexico and Oklahoma SIPs. Our 
proposed action today will disapprove these provisions because the 
provisions are no longer valid under federal law or consistent with 
federal regulations; as such, our action today will not undermine the 
respective SIPs, PSD programs, or any other requirement of the CAA.

III. Proposed Action

    We are proposing to disapprove severable portions of the February 
6, 2012 Oklahoma SIP submittal establishing GHG permitting requirements 
for minor sources and Step 2 PSD sources. The EPA has made the 
preliminary determination that these revisions to the Oklahoma SIP 
should be disapproved because they establish permitting requirements 
that are inconsistent with federal laws. Therefore, under section 110 
and part C of the Act, and for the reasons presented above, the EPA is 
proposing to disapprove the following revisions:
     Substantive revisions to the Oklahoma SIP establishing 
Minor NSR GHG permitting requirements at OAC 252:100-7-2.1 as submitted 
on February 6, 2012; and
     Substantive revisions to the Oklahoma PSD program in OAC 
252:100-8-31 establishing PSD permitting requirements for Step 2 
sources at paragraph (E) of the definition of ``subject to regulation'' 
as submitted on February 6, 2012.
    We are also proposing to disapprove severable portions of the 
November 6, 2012 Arkansas SIP submittal, the January 8, 2013 New Mexico 
SIP, and the January 18, 2013 Oklahoma SIP submittal that include the 
Biomass Deferral in the Arkansas, New Mexico, and Oklahoma PSD 
programs. The EPA has made the preliminary determination that these 
revisions to the Arkansas, New Mexico, and Oklahoma SIPs should be 
disapproved because the Biomass Deferral has expired and adoption or 
implementation of these provisions is no longer consistent with federal 
regulations for PSD permitting. Therefore, under section 110 and part C 
of the Act, and for the reasons presented above, the EPA is proposing 
to disapprove the following revisions:
     Substantive revisions to the Arkansas SIP definition of 
``CO2 Equivalent Emissions'' at Regulation 19, Chapter 2 to 
implement the Biomass Deferral as submitted on November 6, 2012; and
     Substantive revisions to the New Mexico SIP definition of 
``Subject to Regulation'' at 20.2.74.7 (AZ)(2)(a) NMAC to implement the 
Biomass Deferral as submitted on January 8, 2013.
     Substantive revisions to the Oklahoma SIP definitions of 
``carbon dioxide equivalent emissions'' at OAC 252:100-1-3 and 
``subject to regulation'' at OAC 252:100-8-31 as submitted on January 
18, 2013.
    The EPA is proposing to disapprove the revisions listed because the 
submitted provisions are no longer consistent with federal laws. There 
will be no sanctions or punitive measures taken as a result of our 
finalization of this proposed disapproval.

IV. Statutory and Executive Order Reviews

    Under the CAA, 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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to disapprove state law as not meeting Federal 
requirements for the regulation and permitting of GHG emissions.

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 an information collection burden under 
the PRA. There is no burden imposed under the PRA because this action 
proposes to disapprove submitted revisions that are no longer 
consistent with federal laws for the regulation and permitting of GHG 
emissions.

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. This 
action will not impose any requirements on small entities. This action 
proposes to disapprove submitted revisions that are no longer 
consistent with federal laws for the regulation and permitting of GHG 
emissions, and therefore will have no impact on 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. This action proposes 
to disapprove submitted revisions that are no longer consistent with 
federal laws for the regulation and permitting of GHG emissions, and 
therefore will have no impact on small governments.

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. This action proposes to disapprove provisions of 
state law that are no longer consistent with federal laws for the 
regulation and permitting of GHG emissions; there are no requirements 
or responsibilities added or removed from Indian Tribal Governments. 
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 disapproves state permitting 
provisions that are inconsistent with federal laws for the regulation 
and permitting of GHG emissions.

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.

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I. National Technology Transfer and Advancement Act (NTTAA)

    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. This action is not subject to Executive 
Order 12898 because it disapproves state permitting provisions that are 
inconsistent with federal laws for the regulation and permitting of GHG 
emissions.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: December 17, 2015.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2015-33098 Filed 1-8-16; 8:45 am]
 BILLING CODE 6560-50-P