[Federal Register Volume 84, Number 100 (Thursday, May 23, 2019)]
[Proposed Rules]
[Pages 23750-23753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10723]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2018-0257; FRL-9993-98-Region 4]
Air Plan Approval; North Carolina: PSD Requirements for GHGs
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions dated July 30, 2012,
and January 12, 2018, submitted by the State of North Carolina through
the North Carolina Department of Environmental Quality (NCDEQ). These
SIP revisions are related to the State's Prevention of Significant
Deterioration (PSD) permitting program requirements for greenhouse
gases (GHGs). This action is being proposed pursuant to the Clean Air
Act (CAA or Act).
DATES: Comments must be received on or before June 24, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2018-0257 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. 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. 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, 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.
FOR FURTHER INFORMATION CONTACT: Andres Febres, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Febres can be
reached by telephone at (404) 562-8966 or via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. What action is the agency taking?
EPA received two SIP revisions from NCDEQ, dated July 30, 2012, and
January 12, 2018, that include changes to North Carolina's SIP-approved
air quality rule at 15 North Carolina Administrative Code (NCAC) 02D
.0544--Prevention of Significant Deterioration Requirements for
Greenhouse Gases.1 2 3 The 2012 and 2018 revisions include
several administrative and typographical changes to the rule, as well
as a modification to the date associated with the incorporation by
reference (IBR) of 40 CFR 51.166 that was initially meant to capture
EPA's final action entitled ``Deferral for CO2 Emissions
From Bioenergy and Other Biogenic Sources Under the Prevention of
Significant Deterioration (PSD) and Title V Programs'' (hereinafter
referred to as the ``Biomass Deferral Rule'' and discussed in Section
II.B, below). In a March 4, 2019, letter, North Carolina asked EPA to
approve changes to the IBR-related paragraph in Section 0544, including
the date modification, but to exclude the adoption of the Biomass
Deferral Rule from the IBR.\4\
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\1\ EPA notes that the agency received the SIP revisions on
August 3, 2012, and February 2, 2018, respectively.
\2\ In the table of North Carolina regulations approved into the
SIP at 40 CFR 52.1770(c), 15A NCAC 02D is referred to as
``Subchapter 2D Air Pollution Control Requirements.''
\3\ The PSD permitting program is established in part C of title
I of the CAA and applies in areas that meet the National Ambient Air
Quality Standards (NAAQS)--``attainment areas''--as well as areas
where there is insufficient information to determine if the area
meets the NAAQS--``unclassifiable areas.'' EPA's regulations
governing PSD implementation are located at 40 CFR 51.166 and 52.21.
\4\ The March 4, 2019, supplemental letter is located in the
docket for this proposed rulemaking.
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The 2018 submittal also seeks to remove the PSD requirements for
major stationary sources based solely on their GHG emissions; add a new
paragraph--paragraph (d)--regarding the global warming potential for
GHGs; and re-letter several paragraphs in the rule due to the addition
of the new paragraph (e.g., changing paragraph (d) in the SIP-approved
rule to paragraph (e)).\5\ The revisions removing PSD requirements
based solely on GHG emissions are in response to court decisions
invalidating and vacating the Federal regulations that applied PSD
permitting requirements to major sources based solely on their GHG
emissions.\6\ More
[[Page 23751]]
detail on the court decisions is included in Section II, below.
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\5\ In North Carolina's January 12, 2018, SIP revision cover
letter, the State also mentions changes to rule 15 NCAC 02D Section
.0502--Applicability, which relates to title V permitting
requirements for GHGs. This rule is mentioned because it was
approved, together with Section .0544, by the North Carolina Rules
Review Commission, but the redline strikeout changes were not
include as part of the January12, 2018 SIP package. Additionally,
North Carolina explains in its letter that they do not wish for EPA
to review these changes because they are not part of the SIP but
rather part of the State's title V operating permit program.
\6\ See Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct.
2427 (2014); Coalition for Responsible Regulation, Inc. v. EPA, 606
Fed. Appx. 6, 7 (D.C. Cir. 2015).
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EPA is proposing to approve the July 30, 2012, and January 12,
2018, SIP revisions as supplemented by the State's March 4, 2019,
letter.\7\ EPA's analysis of North Carolina's submittal and the
reasoning for proposing approval is included in Section III, below.
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\7\ Pursuant to the State's March 4, 2019, letter, EPA's
proposed approval of the IBR date does not include the Biomass
Deferral Rule. As discussed in Section III, below, EPA's proposed
approval is also based on the State's interpretation of Section
.0544(b)(1) included in a December 7, 2018, letter from NCDEQ.
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II. Background
A. GHG Tailoring Rule
On January 2, 2011, GHG emissions were, for the first time, covered
by the PSD and title V operating permit programs.\8\ To establish a
process for phasing in the permitting requirements for stationary
sources of GHGs under the CAA's PSD and title V programs, on June 3,
2010, EPA published a final rule entitled ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (hereinafter
referred to as the ``GHG Tailoring Rule''). See 75 FR 31514. In Step 1
of the GHG Tailoring Rule, which began on January 2, 2011, EPA limited
application of PSD and title V requirements to sources and
modifications of GHG emissions, but only if they were subject to PSD or
title V ``anyway'' due to their emissions of pollutants other than
GHGs. These sources and modifications covered under Step 1 are commonly
referred to as ``anyway sources'' and ``anyway modifications,''
respectively.
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\8\ See 75 FR 17004 (April 2, 2010).
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In Step 2 of the GHG Tailoring Rule, which applied as of July 1,
2011, the PSD and title V permitting requirements extended beyond the
sources and modifications covered under Step 1 to apply to sources that
were classified as major sources based solely on their GHG emissions or
potential to emit GHGs. Step 2 also applied PSD permitting requirements
to modifications of otherwise major sources that would increase only
GHG emissions above the level in the Federal PSD regulations. EPA
generally described the sources and modifications covered by PSD under
Step 2 of the Tailoring Rule as ``Step 2 sources and modifications'' or
``GHG-only sources and modifications.''
Subsequently, EPA published Step 3 of the GHG Tailoring Rule on
July 12, 2012. See 77 FR 41051. In this rule, EPA decided against
further phase-in of the PSD and title V requirements for sources
emitting lower levels of GHG emissions. Thus, the thresholds for
determining PSD and title V applicability based on emissions of GHGs
remained the same as established in Steps 1 and 2 of the Tailoring
Rule.
On June 23, 2014, the U.S. Supreme Court addressed the application
of stationary source permitting requirements to GHG emissions in
Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427 (2014). The
Supreme Court upheld EPA's regulation of GHG Step 1--or ``anyway''
sources--but held that EPA may not treat GHGs as air pollutants for the
purpose of determining whether a source is a major source (or is
undergoing a major modification) and thus require the source to obtain
a PSD or title V permit. Therefore, the Court invalidated the PSD and
title V permitting requirements for GHG Step 2 sources and
modifications.
In accordance with the Supreme Court's decision, on April 10, 2015,
the United States Court of Appeals for the District of Columbia Circuit
(D.C. Circuit) issued an Amended Judgment vacating the regulations that
implemented Step 2 of the GHG Tailoring Rule, but not the regulations
that implement Step 1 of the GHG Tailoring Rule. See Coalition for
Responsible Regulation, Inc. v. EPA, 606 Fed. Appx. 6, 7 (D.C. Cir.
2015). The Amended Judgment specifically vacated the EPA regulations
under review (including 40 CFR 51.166(b)(48)(v) and 40 CFR
52.21(b)(49)(v)) ``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.'' Id. at 7-8.
EPA promulgated a good cause final rule on August 19, 2015,
entitled ``Prevention of Significant Deterioration and Title V
Permitting for Greenhouse Gases: Removal of Certain Vacated Elements.''
See 80 FR 50199 (August 19, 2015) (hereinafter referred to as the
``Good Cause GHG Rule''). The rule removed from the Federal regulations
the portions of the PSD permitting provisions for Step 2 sources that
were vacated by the D.C. Circuit (i.e., 40 CFR 51.166(b)(48)(v) and
52.21(b)(49)(v)). EPA therefore no longer has the authority to conduct
PSD permitting for Step 2 sources, nor can the Agency approve
provisions submitted by a state for inclusion in its SIP providing this
authority. On October 3, 2016, EPA proposed to revise provisions in the
PSD permitting regulations applicable to GHGs to address the GHG
applicability threshold for PSD in order to fully conform with UARG and
the Amended Judgment, but those revisions have not been finalized. See
81 FR 68110.
B. Biomass Deferral Rule
On July 20, 2011, EPA finalized the Biomass Deferral Rule, which
deferred for a period of three years, the application of PSD and Title
V permitting requirements to carbon dioxide (CO2) emissions
from bioenergy and other biogenic stationary sources (also known as
biogenic CO2 emissions). See 76 FR 43490. During this three-
year period, stationary sources that combust biomass and constructed or
modified a facility would have avoided the application of PSD to
biogenic CO2 emissions resulting from construction or
modification. The deferral applied only to biogenic CO2
emissions and did not affect other GHGs emitted from the combustion of
biomass fuel and decomposition of biogenic material or non-GHG
pollutants. Additionally, the deferral only applied to biogenic
CO2 emissions in the PSD and Title V programs; it did not
apply to any other EPA programs, such as the GHG Reporting Program.\9\
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\9\ See https://www.epa.gov/ghgreporting for information on the
GHG Reporting Program.
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On July 12, 2013, the D.C. Circuit vacated the Biomass Deferral
Rule, but on November 14, 2013, issued an order delaying the vacatur of
the Biomass Deferral Rule until the United States Supreme Court made a
final decision in the UARG case related to the GHG Tailoring Rule. See
Center for Biological Diversity v. EPA, 722 F.3d 401. After a final
decision was made by the Supreme Court on June 23, 2014, in UARG, EPA
did not take formal action to remove the Biomass Deferral Rule from the
CFR. Although the language of the Biomass Deferral Rule remains in
place at 40 CFR 51.166(b)(48)(ii)(a), 52.21(b)(49)(ii)(a), 70.2(2), and
71.2(2), the deferral is no longer operative.
III. Analysis of State's Submittal
The proposed changes to the SIP-approved version of 15 NCAC 02D
.0544 in the July 30, 2012, SIP revision include administrative edits
to the rule and an update to the IBR date for 40 CFR 51.166 at Section
.0544(n) (subsequently re-lettered to paragraph (o) in the January 12,
2018, SIP revision). The administrative changes include the correction
of acronyms for New Source Review (NSR) found under paragraphs (a) and
(b) of the rule, as well as the clarification of a reference to the
``owner or operator'' of a facility made in the last subparagraph of
paragraph (m) (subsequently re-lettered
[[Page 23752]]
to paragraph (n) in the January 12, 2018, SIP revision).
The change to the IBR date included in the July 30, 2012, SIP
revision seeks to revise the date from August 2, 2010, to July 20,
2011. The State originally included this change to capture the
promulgation of the Biomass Deferral Rule. However, because the Biomass
Deferral Rule was subsequently vacated but no formal action was taken
to remove the language from the Federal PSD regulations after the UARG
decision, North Carolina decided to withdraw the change to the IBR date
paragraph from the July 30, 2012, SIP revision through a letter dated
January 16, 2015.10 11
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\10\ The January 16, 2015 letter is located in the docket for
this proposed rulemaking.
\11\ In a notice of proposed rulemaking (NPRM) published on
April 19, 2013, EPA proposed to approve the IBR-related changes to
Section .0544 in North Carolina's July 30, 2012, SIP revision to
capture the Biomass Deferral Rule. EPA never took final action to
approve those changes because of the July 12, 2013 vacatur of the
Rule. Today's proposal supersedes the April 19, 2013, NPRM.
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In its January 12, 2018, SIP revision, as supplemented by its March
4, 2019, letter, North Carolina seeks to make additional changes to
Section .0544. Specifically, North Carolina seeks to: (1) Modify the
language of .0544(a) in order to capture the effects of the UARG
decision on PSD and title V permitting requirements for GHG-only, or
Step 2, sources; (2) add a new paragraph to Section .0544--paragraph
(d)--to automatically incorporate any changes to the Federal GHG global
warming potentials; (3) re-letter certain paragraphs in Section .0544
due to the addition of paragraph (d); (4) make administrative edits to
the section; and (5) modify the IBR paragraph to, among other things,
change the IBR date of 40 CFR 51.166 to July 20, 2011. As discussed
above, North Carolina's March 4, 2019, letter asks EPA to approve
changes to the IBR-related paragraph in Section 0544, including the
date modification, but to exclude the Biomass Deferral Rule from the
IBR.
As previously mentioned, the UARG decision invalidated and vacated
the PSD and title V permitting requirements for GHG-only, or Step 2,
sources and modifications. North Carolina had previously adopted the
GHG Tailoring Rule through the August 2, 2010, IBR date of 40 CFR
51.166 found in the current SIP-approved version of Section .0544(n).
North Carolina's January 12, 2018, SIP revision seeks to add language
to Section .0544 to capture the effects of the UARG decision.
Specifically, North Carolina proposes to add the following language to
paragraph (a) of Section .0544--``A major stationary source or major
modification shall not be required to obtain a prevention of
significant deterioration (PSD) permit on the sole basis of its
greenhouse gases emissions.'' Given the UARG decision and the fact that
the State is still being as stringent as the current Federal PSD
requirements for GHGs, EPA is proposing to approve these changes.
Additionally, in the January 12, 2018, SIP revision, North Carolina
adds paragraph (d) to Section .0544 in order to automatically
incorporate any changes to the Federal GHG global warming potentials
into the definition of ``subject to regulation'' incorporated by
reference from 40 CFR 51.166(b)(48) that may occur after the IBR date.
In order to determine if a source is subject to regulation for GHGs, a
source's total GHG emissions are calculated using the global warming
potentials published in Table A-1 of Subpart A of 40 CFR part 98.\12\
North Carolina's revision ensures that any future changes EPA makes to
Table A-1 are concurrently incorporated into the State's SIP-approved
PSD program for greenhouse gases without the need for further SIP
revisions. For this reason, EPA is proposing to incorporate paragraph
(d) into the SIP. Furthermore, due to the addition of paragraph (d),
the State seeks to re-letter the remaining paragraphs in the rule
(e.g., changing paragraph (e) in the SIP-approved rule to paragraph
(f)). EPA is proposing to approve this organizational change.
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\12\ GHGs, as defined in the definition of ``subject to
regulation'' at 40 CFR 51.166(b)(48), is the aggregate of six
different gases: Carbon dioxide, nitrous oxide, methane,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. To
calculate the total GHG emissions for a source: (1) The mass amount
of emissions, in tons per year (tpy), of each individual GHG is
multiplied by its global warming potential found in Table A-1 of
Subpart A of 40 CFR 98, and (2) the resulting values for each
individual GHG are added. This results in the total GHG emissions
for the source expressed in tpy of CO2 equivalent (tpy
CO2e).
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Originally, the January 12, 2018, SIP revision also sought to re-
letter the IBR paragraph at Section .0544(n) to paragraph (o) and
revise the IBR date of 40 CFR 51.166 from August 2, 2010, to July 20,
2011, without exception. Because North Carolina had previously asked
EPA not to approve the updates to the IBR paragraph submitted in the
July 30, 2012, SIP revision, EPA requested clarification from the State
on whether they want EPA to incorporate the changes to the IBR-related
paragraph into the SIP. Subsequently, on December 7, 2018, North
Carolina submitted a letter to EPA stating that it was not requesting
that EPA approve paragraph (o) into the SIP because the Biomass
Deferral Rule had expired and EPA had not taken action to remove the
rule language from 40 CFR 51.166.
However, due to the re-lettering, approving the revisions to
Section .0544 into the SIP without paragraph (o) could cause confusion
for the general public and would create an inconsistency between the
SIP-approved version and the state version of the rule. Therefore,
North Carolina submitted the March 4, 2019, letter asking EPA to
approve all changes to Section .0544 from its July 30, 2012, and
January 12, 2018, SIP revisions, including the adoption of paragraph
(o) with the IBR date update, but to exclude the adoption of the
Biomass Deferral Rule language from the July 20, 2011, IBR of 40 CFR
51.166. Therefore, EPA is proposing to incorporate paragraph (o) into
the SIP with this exclusion.\13\
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\13\ If EPA takes final action to approve the July 30, 2012, and
the January 12, 2018, SIP revisions, it will place a note in the
entry for Section .0544 in the table of North Carolina SIP-approved
rules, at 40 CFR 52.1770(c), explaining that the Biomass Deferral
Rule is excluded from the July 20, 2011 IBR of 40 CFR 51.166.
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Finally, the January 12, 2018 SIP revision also seeks to remove the
term ``immediately'' from the following subparagraph (Section
.0544(b)(1)) in the definition of ``baseline actual emissions'':
For an existing emissions unit, baseline actual emissions means
the average rate, in tons per year, at which the emissions unit
actually emitted the pollutant during any consecutive 24-month
period selected by the owner or operator within the 5-year period
immediately preceding the date that a complete permit application is
received by the Division for a permit required under this Rule. The
Director shall allow a different time period, not to exceed 10 years
immediately preceding the date that a complete permit application is
received by the Division, if the owner or operator demonstrates that
it is more representative of normal source operation. . . .
In the December 7, 2018, supplemental letter, the State explained
that the term was eliminated as the result of a technical correction
from the North Carolina Rules Review Commission to remove extraneous
text throughout North Carolina's rules. North Carolina also stated that
it intends to enforce subparagraph (b)(1) as if the term
``immediately'' were present in the rule. EPA's proposed action to
incorporate the change is based on the State's interpretation of this
subparagraph as explained in its December 7, 2018 letter.
All other changes to Section .0544 consist of administrative and
typographical corrections that have no effect on how the PSD provisions
for
[[Page 23753]]
GHG would operate in the State. For all of the reasons discussed above,
EPA proposes to incorporate the changes to Section .0544 into the North
Carolina SIP from the July 30, 2012 and January 12, 2018, SIP revisions
but exclude the Biomass Deferral Rule language from the IBR of 40 CFR
51.166.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference, under Subchapter 2D, Air Pollution Control Requirements of
the North Carolina SIP, Section .0544--``Prevention of Significant
Deterioration Requirements for Greenhouse Gases,'' state-effective
September 1, 2015.\14\ EPA has made, and will continue to make, these
materials generally available through www.regulations.gov and at the
EPA Region 4 office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
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\14\ As discussed above, EPA is proposing to exclude the Biomass
Deferral Rule from the July 20, 2011 IBR of 40 CFR 51.166, found in
Section .0544(o).
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V. Proposed Action
EPA is proposing to approve North Carolina's July 30, 2012, and
January 12, 2018, SIP revisions that revise the PSD requirements for
GHGs under 15 NCAC 02D .0544--Prevention of Significant Deterioration
Requirements for Greenhouse Gases as described above. Specifically, EPA
is proposing to approve language under paragraph (a) that will prevent
the regulation of GHG-only, or Step 2 sources; the adoption of new
paragraph (d), regarding the definition of global warming potential for
GHGs, and the re-lettering of Section .0544 following the new paragraph
(d); the deletion of the term ``immediately'' from paragraph (b)(1);
the adoption of paragraph (o), excluding incorporation of the Biomass
Deferral Rule into the July 20, 2011 IBR of 40 CFR 51.166; and adoption
of various administrative edits such as the addition of acronyms and
typographical corrections throughout the rule. EPA believes that these
changes are consistent with the requirements of the CAA.
VI. 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. See 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 CAA. This proposed action
merely proposes to approve state law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 CAA; 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).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 10, 2019.
Mary S. Walker,
Acting Regional Administrator, Region 4.
[FR Doc. 2019-10723 Filed 5-22-19; 8:45 am]
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