[Federal Register Volume 81, Number 99 (Monday, May 23, 2016)]
[Rules and Regulations]
[Pages 32239-32241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11965]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2015-0783; FRL-9946-66-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is disapproving 
severable portions of the February 6, 2012 Oklahoma State 
Implementation Plan (SIP) submittal that are inconsistent with federal 
laws based on recent decisions by the United States Courts and 
subsequent EPA rulemaking. This submittal established 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 emissions above applicable levels. Additionally, we are 
disapproving 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 disapproving the provisions adopting the Biomass 
Deferral because they are no longer consistent with federal laws and 
regulations. The EPA is finalizing this disapproval under section 110 
and part C of the Clean Air Act (Act or CAA).

DATES: This rule is effective on June 22, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2015-0783. 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, e.g., 
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. Publicly available docket materials are available 
either electronically through http://www.regulations.gov or in hard 
copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733.

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, (214) 665-2115, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our 
January 11, 2016 proposal. See 81 FR 1141. In that document we proposed 
to disapprove severable portions of the February 6, 2012 Oklahoma SIP 
submittal establishing GHG permitting requirements for minor sources 
and for sources that are classified as major, and thus, required to 
obtain a PSD permit based solely on their potential GHG emissions 
(referred to as ``Step 2'' PSD sources in our proposed action) because 
we determined that these revisions to the Oklahoma SIP establish 
permitting requirements that are inconsistent with federal laws 
resulting from recent decisions by United States Courts. We also 
proposed 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. Our 
analysis found that these revisions to the Arkansas, New Mexico, and 
Oklahoma SIPs should be disapproved because adoption or implementation 
of these provisions is no longer consistent with federal laws and 
regulations for PSD permitting.

II. Response to Comments

    We received one comment on our proposed action. Our response to the 
submitted comment is provided below.
    Comment: One commenter stated that ``not requiring states to 
continue step two of the permitting for GHG as a major source thus 
requiring a PSD or Title V permit is the right decisions based on 
law.'' Additionally, the commenter stated that ``GHG emission issues 
would be better addressed in it's [sic] own statute rather than having 
the supreme court [sic] dictate the regulatory framework of GHG 
emissions.''
    Response: We acknowledge the support of the commenter in finding 
that our proposed disapproval action is consistent with current law. 
GHG

[[Page 32240]]

emissions are regulated under the CAA \1\ and the CAA includes 
provisions for citizens, states, and regulated entities to seek 
judicial review of EPA's final regulatory decisions.\2\ Therefore our 
current action to disapprove the Step 2 permitting requirements is 
consistent with current law and is consistent with the statutory 
requirements of the CAA.
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    \1\ See section 160 of the Act and the Act's implementing 
regulations at 40 CFR 52.21.
    \2\ See section 307 of the Act.
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III. Final Action

    We are taking this final action under section 110 and part C of the 
Act; as such, we are not imposing sanctions as a result of this 
disapproval. This final disapproval does not require the EPA to 
promulgate a Federal Implementation Plan because we are finding that 
the submitted provisions are inconsistent with federal laws for the 
regulation and permitting of GHG emissions.
    We are disapproving the following severable portions of the 
February 6, 2012 Oklahoma SIP submittal that establish GHG permitting 
requirements for minor sources and Step 2 PSD:
     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 disapproving as inconsistent with federal laws and 
regulations for PSD permitting, severable portions of the following SIP 
submittals that include the Biomass Deferral:
     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;
     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; and
     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.
    As a result of the final disapproval actions listed above, the EPA 
is also updating the ``Approval status'' section of the Arkansas SIP at 
40 CFR 52.172, New Mexico SIP at 40 CFR 52.1622, and Oklahoma SIP at 40 
CFR 52.1922. Additionally, we are renumbering 40 CFR 52.172 of the 
Arkansas SIP for consistency.

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. We have concluded that 
the state choices under review in this action do not meet the criteria 
of the CAA. Accordingly, this action disapproves 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 
disapproves 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 
disapproves 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 
disapproves 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 disapproves 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.

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

[[Page 32241]]

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.
    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. The 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 22, 2016. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purpose 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: May 11, 2016.
Ron Curry,
Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart E--Arkansas

0
2. Section 52.172 is revised to read as follows:


Sec.  52.172  Approval status.

    With the exceptions set forth in this subpart, the Administrator 
approves Arkansas's state implementation plan under section 110 of the 
Clean Air Act. Furthermore, the Administrator finds that the plan 
satisfies all applicable requirements of Parts C and D, Title I, of the 
Clean Air Act as amended in 1990, except as noted below.
    (a) 1997 PM2.5 NAAQS: The SIP submitted March 28, 2008 
is disapproved for CAA element 110(a)(2)(D)(ii).
    (b) 2006 PM2.5 NAAQS: The SIPs submitted March 28, 2008 
and September 16, 2009 are disapproved for CAA element 
110(a)(2)(D)(ii).
    (c) GHGs: The revisions to the Arkansas SIP definition of 
``CO2 Equivalent Emissions'' at Regulation 19, Chapter 2 to 
implement the GHG Biomass Deferral as submitted on November 6, 2012 are 
disapproved.

Subpart GG--New Mexico

0
3. Section 52.1622 is revised to read as follows:


Sec.  52.1622  Approval status.

    With the exceptions set forth in this subpart, the Administrator 
approves New Mexico's state implementation plan under section 110 of 
the Clean Air Act. Furthermore, the Administrator finds that the plan 
satisfies all applicable requirements of Parts C and D, Title I, of the 
Clean Air Act as amended in 1990, except as noted below.
    (a) The revisions to the New Mexico SIP definition of ``Subject to 
Regulation'' at 20.2.74.7 (AZ)(2)(a) NMAC to implement the GHG Biomass 
Deferral as submitted on January 8, 2013 are disapproved.
    (b) [Reserved]

Subpart LL--Oklahoma

0
4. Section 52.1922 is revised to read as follows:


Sec.  52.1922  Approval status.

    With the exceptions set forth in this subpart, the Administrator 
approves Oklahoma's state implementation plan under section 110 of the 
Clean Air Act. Furthermore, the Administrator finds that the plan 
satisfies all applicable requirements of Parts C and D, Title I, of the 
Clean Air Act as amended in 1990, except as noted below.
    (a) Revisions to the Oklahoma SIP establishing Minor NSR GHG 
permitting requirements at OAC 252:100-7-2.1 as submitted on February 
6, 2012.
    (b) Revisions to the Oklahoma PSD program in OAC 252:100-8-31 
establishing PSD permitting requirements for sources that are 
classified as major and thus required to obtain a PSD permit based 
solely on their potential GHG emissions (``Step 2 sources'') at 
paragraph (E) of the definition of ``subject to regulation'' as 
submitted on February 6, 2012.
    (c) 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 to implement the GHG Biomass Deferral as submitted 
on January 18, 2013.

[FR Doc. 2016-11965 Filed 5-20-16; 8:45 am]
 BILLING CODE 6560-50-P