[Federal Register Volume 84, Number 124 (Thursday, June 27, 2019)]
[Proposed Rules]
[Pages 30686-30689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13636]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2019-0064; FRL-9995-24-Region 8]
South Dakota; Proposed Approval of Revisions to the State Air
Pollution Control Rules and to the Permitting Rules for the Prevention
of Significant Deterioration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) and Operating Permit Program
revisions submitted by the State of South Dakota on October 23, 2015,
related to South Dakota's Air Pollution Control Program. The October
23, 2015 submittal revises certain definitions in the Prevention of
Significant Deterioration (PSD) permitting rules and general definition
section related to greenhouse gases (GHGs). In this rulemaking, we are
proposing action on portions of the October 23, 2015 submittal, which
were not acted on in our previous final rulemaking published on October
13, 2016. The effect of this rulemaking is to ensure that certain
definitions in South Dakota's PSD rules are in compliance with the
federal PSD requirements. This action is being taken under the Clean
Air Act (CAA).
DATES: Written comments must be received on or before July 29, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0064 to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
www.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, 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: All documents in the docket are listed in the
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
in www.regulations.gov or in hard copy at the Air and Radiation
Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. The EPA requests that if at all
possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to
[[Page 30687]]
view the hard copy of the docket. You may view the hard copy of the
docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal
holidays.
FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Quality Planning
Branch, EPA, Region 8, Mailcode 8ARD-QP, 1595 Wynkoop Street, Denver,
Colorado 80202-1129, (303) 312-6227, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
On June 3, 2010 (75 FR 31514), the EPA published a final rule,
known as the GHG Tailoring Rule, which, with respect to the CAA PSD
permitting program, phased in permitting requirements for GHG emissions
from stationary sources. Under its interpretation of the CAA at the
time, the EPA determined it was necessary to avoid an unmanageable
increase in the number of sources that would be required to obtain PSD
permits under the CAA because the sources emitted or had the potential
to emit GHGs at or above the applicable major source and major
modification thresholds. In Step 1 of the GHG Tailoring Rule, the EPA
limited application of PSD requirements to sources only if they were
subject to PSD ``anyway'' due to the emissions of other non-GHG
pollutants. These sources were referred to as ``anyway'' sources. In
Step 2 of the GHG Tailoring Rule, the EPA applied the PSD permitting
requirements under the CAA to sources that were classified as major
based solely on their GHG emissions or potential to emit GHGs, and to
modifications of otherwise major sources that require a PSD permit
because they increased only GHG emissions above the level in the EPA
regulations.
On June 23, 2014, the United States Supreme Court addressed the
application of PSD and Title V permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may
not treat GHGs as an air pollutant for purposes of determining whether
a source is a major source (or a modification thereof) and thus
required to obtain a PSD or title V permit. With respect to PSD, the
Court also held that the EPA could continue to require that PSD
permits, otherwise required based on emissions of pollutants other than
GHGs (anyway sources), contain limitations on GHG emissions based on
the application of Best Available Control Technology (BACT).
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) issued an amended judgment effectively vacating the
regulations that implemented Step 2 of the EPA's GHG Tailoring Rule.
Coalition for Responsible Regulation v. EPA, 606 F. App'x. 6, at 7-8
(D.C. Cir. April 10, 2015) (Amended Judgment). With respect to PSD,
Step 2 applied to sources that emitted only GHGs at or above the
thresholds triggering the requirement to obtain a PSD permit. The
Amended Judgment preserves, without the need for additional rulemaking
by the EPA, the application of the BACT requirement to GHG emissions
from Step 1 or ``anyway sources.'' With respect to PSD Step 2 sources,
the D.C. Circuit's Amended Judgment vacated the regulations at issue in
the litigation, including 40 CFR 51.166(b)(48)(v) and 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 emission increase from a
modification.'' The Amended Judgment further ordered that: ``the
regulations under review be vacated to the extent they require a
stationary source to obtain a title V permit solely because the source
emits or has the potential to emit greenhouse gases above the
applicable major source thresholds.''
In accordance with the D.C. Circuit's Amended Judgment, on August
19, 2015 (80 FR 50199), the EPA published a final rulemaking titled:
``Prevention of Significant Deterioration and Title V Permitting for
Greenhouse Gases: Removal of Vacated Elements.'' In this rulemaking,
the EPA removed GHG Tailoring Rule Step 2 PSD permitting requirements
in 40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v) from the CFR.
As mentioned, the Amended Judgment specifically ordered that
certain EPA regulations under review (including 40 CFR 51.166(b)(48)(v)
and 52.21(b)(49)(v)) be vacated. In the EPA's final rulemaking titled
``Prevention of Significant Deterioration and Title V Permitting for
Greenhouse Gases: Removal of Certain Vacated Elements,'' which was
published on August 19, 2015 (80 FR 50199), we state:
This final action removes from the CFR several provisions of the
PSD and title V permitting regulations that were originally
promulgated as part of the Tailoring Rule and that the D.C. Circuit
specifically identified as vacated in the Coalition Amended
Judgment. Because the D.C. Circuit specifically identified the
Tailoring Rule Step 2 PSD permitting requirements in 40 CFR
51.166(b)(48)(v) and 52.21(b)(49)(v) and the regulations that
require the EPA to consider further phasing-in the GHG permitting
requirements at lower GHG emission thresholds in 40 CFR 52.22, 70.12
and 71.13 as vacated, the EPA is taking the ministerial action of
removing these provisions from the CFR.
EPA further states:
The EPA intends to further revise the PSD and title V
regulations to fully implement the Coalition Amended Judgment in a
separate rulemaking. This future rulemaking will include revisions
to additional definitions in the PSD regulations.
South Dakota's PSD preconstruction permitting program consists of
sections 74-36-09-01 through 74-36-09-03. The State's submittal
incorporated by reference as of October 23, 2015, the revisions to
remove the GHG Tailoring Rule Step 2 PSD permitting requirements in 40
CFR 52.21(b)(49)(v) from their state implementation plan (SIP) in
74:36:09:02(7)-(9) (removing 40 CFR 52.21(b)(49)(v) as well as the
references to 40 CFR 52.21(b)(49)(v)). These revisions were approved in
81 FR 70626 and published on October 13, 2016 (see docket).
In this action we propose to approve two additional revisions
contained in the State's 2015 submittal: South Dakota's revision to the
definition of ``subject to regulation'' in 74:36:01:01(73) \1\ and the
addition of the new provision in 74:36:09-02(10).\2\ In our October 13,
2016 action, we did not act on South Dakota's revisions in
74:36:01:01(73) because it revises the definition of ``regulated NSR
pollutant'' and 74:36:09(02)(10) revises language in Sec.
52.21(b)(49)(iv)(b) related to ``regulated NSR pollutant.'' The EPA
determined that it was not appropriate to act on any revisions related
to definitions as a result of the court's decision at that time
because, as mentioned above, the EPA's final rulemaking titled
``Prevention of Significant Deterioration and Title V Permitting for
Greenhouse Gases: Removal of Certain Vacated Elements'' stated that a
future rulemaking will include revisions to additional definitions in
the PSD regulations.
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\1\ The State's proposed rule changes appear in the document
titled ``Appendix A, Proposed Amendment to ARSD 74-36--Air Pollution
Control Program'', which is in the Docket. Appendix A, p. A-14, PDF
p. 431.
\2\ Appendix A, p. A-175, PDF p. 330.
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On October 3, 2016, the EPA proposed the additional definition
[[Page 30688]]
revisions in ``Revisions to the Prevention of Significant Deterioration
(PSD) and Title V Greenhouse Gas (GHG) Permitting Regulations and
Establishment of a Significant Emissions Rate (SER) for GHG Emissions
Under the PSD Program.'' 81 FR 68110. In the 2016 action, the EPA
proposed to revise certain definitions in the PSD permitting
regulations to fully implement the Amended Judgment. Specifically, we
proposed the following.
The first revision would revise the definitions of ``major
stationary source'' and ``major modification'' by repealing all parts
of the definition of ``subject to regulation'', except for the first
paragraph, which simply serves to codify our interpretation of the term
``subject to regulation.'' Thus, this rulemaking simply proposed
retention of the first paragraph in the definition of ``subject to
regulation'' at 40 CFR 51.166(b)(48) and 52.21(b)(49) and proposed
adding a sentence explaining that pollutants subject to regulation
include, but are not limited to, greenhouse gases.
The second revision would establish a freestanding
definition of the term ``greenhouse gases'' at 40 CFR 51.166(b)(31) and
52.21(b)(32). Previously, the definition of this pollutant was located
within the definition of ``subject to regulation'' and the EPA simply
proposed to move the language that defined GHGs into an independent
definition for the term ``greenhouse gases,'' including the method to
compute tons per year CO2 equivalent emissions
(CO2e). We explained that this proposed change to the EPA's
definition of GHG in the PSD permitting rules does not change the
meaning of the term, as it will be the exact same language as in the
existing regulations.\3\
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\3\ We note that EPA's proposed rulemaking covered additional
revisions, which are not relevant to the State's submission. EPA has
not finalized this proposal.
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Because South Dakota's revisions are consistent with the D.C.
Circuit's amended judgement, the EPA's October 3, 2016, proposed
rulemaking does not need to be finalized in order for us to approve
South Dakota's revisions.
II. The EPA's Evaluation
A. Chapter 74:36:01:01--Definitions
We are proposing approval to the changes in 74:36:01:01(73).
Chapter 74:36:01:01 defines the terms used throughout Article 74:36--
Air Pollution Control Program. The State updated 74:36:01:01(73) to
reflect the D.C. Circuit's Amended Judgment. In particular, South
Dakota modified the definition of ``subject to regulation'' by striking
the reference to the definition of ``subject to regulation'' in the
part 70 rules (40 CFR 70.2) and replacing it with: ``Subject to
regulation means, for any air pollutant, that the pollutant is subject
to either a provision in the Clean Air Act, or a nationally-applicable
regulation codified by the Administrator in subchapter C of this
chapter, that requires actual control of the quantity of emissions of
that pollutant, and that such a control requirement has taken effect
and is operative to control, limit or restrict the quantity of
emissions of that pollutant released from the regulated activity.
Greenhouse gases are not subject to regulation unless a PSD
preconstruction permit is issued regulating greenhouse gases in
accordance with chapter 74:36:09.''
The State's definition of ``subject to regulation'' retains the
first paragraph in Sec. 52.21(b)(49), which codifies the
interpretation of the term ``subject to regulation,'' which has the
effect of revising the definitions of ``major stationary source'' and
``major modification.'' In adopting only the first paragraph of Sec.
52.21(b)(49), the State's definition excludes the exceptions to the
definition of ``subject to regulation'' provisions in 40 CFR
52.21(b)(49)(i)-(iv). Those provisions are relevant for the PSD program
and are found elsewhere in the State's PSD rules.\4\ The State also
added the following sentence to the end of the definition of ``subject
to regulation'': ``[g]reenhouse gases are not subject to regulation
unless a PSD preconstruction permit is issued regulating greenhouse
gases accordance with chapter 74:36:09.'' We propose to approve this
additional sentence because we do not believe it would reduce the
stringency of the SIP definition of ``subject to regulation,'' as
compared to the revised definitions in our ``Prevention of Significant
Deterioration and Title V Permitting for Greenhouse Gases: Removal of
Vacated Elements'' rulemaking, and because it is consistent with the
Amended Judgment.
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\4\ Our October 13, 2016 final action (81 FR 70626) approved the
following exception to the State's adoption by reference of the PSD
rules. 74:36:09:02(7)-(9), adopts by reference the term ``Subject to
regulation'' in 40 CFR 52.21(b)(49), which includes Sec.
52.21(b)(49)(i)-(iv) and conforming amendments, but not Sec.
52.21(b)(49)(v). We note that our 2016 final action did not include
a revision the EPA proposed in response to the Amended Judgment that
adds a sentence to the end of the first paragraph of 40 CFR
52.21(b)(49) (``Pollutants subject to regulation include, but are
not limited to, greenhouse gases as defined in paragraph (b)(32) of
this section''). 81 FR 68143. Even if EPA were to finalize its
proposal, we do not believe this additional sentence is needed in
the South Dakota regulations because the definition applies to all
sources, including non-PSD sources, and ``Subject to regulation''
for purposes of PSD is adopted by reference elsewhere in the State's
rules.
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Additionally, the State's revision to 74:36:01:01(73) removed and
replaced the reference in that section to the definition of ``subject
to regulation'' in 40 CFR 70.2, which we propose to approve in light of
the Amended Judgment, which, in effect, ordered the vacatur of the
requirement in the part 70 regulations that a stationary source obtain
a title V permit solely because it emits or has the potential to emit
GHGs above the title V major source threshold. This modification is
approvable because it is consistent with the Amended Judgment, which
describes the CAA permitting authority regarding GHG emissions, and
thus we do not believe it would reduce the stringency of the definition
in the SIP compared with the federal definitions of ``subject to
regulation'' found in Sec. 51.166(b)(48), Sec. 52.21(b)(49), and
Sec. 70.2.
B. Chapter 74:36:09--Prevention of Significant Deterioration
We are proposing approval to the addition of 74:36:09:02(10).
Chapter 74:36:09 is South Dakota's PSD preconstruction program for
major sources located in areas of the State that are designated
attainment for the federal national ambient air quality standards
(NAAQS) identified in 74:36:02, which adopts the EPA's PSD rules in 40
CFR 52.21 by reference, noting certain differences. The EPA approved
the PSD preconstruction permitting program in South Dakota's SIP. South
Dakota's October 23, 2015 submittal added 74:36:09:02(10) as an
additional difference from the federal rules, which states that for the
purposes of this section, 40 CFR 52.21(b)(49)(iv)(b), the term ``also
will have an emissions increase of a regulated NSR pollutant'' means
``also will have a major modification of a regulated NSR pollutant that
is not GHGs.'' This provision amends one of the exceptions to the
definition of ``subject to regulation'' in the State's PSD rules
(``Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if: . . . [t]he stationary source is an existing major
stationary source for a regulated NSR pollutant that is not GHGs, and
also will have an emissions increase of a regulated NSR pollutant, and
an emissions increase of 75,000 tpy CO2e or more''). The
State's change was not included in either of the EPA's recent actions
to amend the PSD applicability rules for GHG emissions (80 FR 50199 and
81 FR 68110, described above). Nevertheless, we propose to approve the
change because it is consistent with the intent of our
[[Page 30689]]
federal rules since the regulatory definition of ``major modification''
found at [insert either 40 CFR 52.21(b)(2)(i) or South Dakota's
equivalent rule provision] is essentially equivalent in meaning to the
term ``emissions increase'' as it is defined at 40 CFR
52.21(b)(49)(iii). This change reflects the D.C. Circuit's Amended
Judgment in that 74:36:09:02(10) merely emphasizes that a source has to
trigger PSD for a non-GHG pollutant before GHGs can become subject to
regulation. This modification is approvable because it does not reduce
the stringency of the federal definition of ``subject to regulation''
found in Sec. 51.166(b)(48) and Sec. 52.21(b)(49).
III. Proposed Action
For the reasons described in section II of this proposed
rulemaking, the EPA is proposing to approve the revisions submitted by
South Dakota on October 23, 2015, which were not acted on in 81 FR
70626. Our action is based on an evaluation of South Dakota's revisions
against the requirements of CAA sections 110(a)(2)(c) and 502(b), and
regulatory requirements under 40 CFR 51.160-164, 40 CFR 51.166, 40 CFR
52.21, 40 CFR part 70 and the D.C. Circuit's Amended Judgment.
IV. Consideration of Section 110(l) of the CAA
Under section 110(l) of the CAA, the EPA cannot approve a SIP
revision if the revision would interfere with any applicable
requirements concerning attainment and reasonable further progress
(RFP) toward attainment of the NAAQS, or any other applicable
requirement of the Act. In addition, section 110(l) requires that each
revision to an implementation plan submitted by a state shall be
adopted by the state after reasonable notice and public hearing.
The South Dakota SIP revisions that the EPA proposes to approve do
not interfere with any applicable requirements of the Act. The
revisions to the Administrative Rules of South Dakota (ARSD)
74:36:09:02(10) and 74:36:01(73) submitted by South Dakota on October
23, 2015, ensure South Dakota's PSD program is in compliance with the
federal PSD requirements. Therefore, CAA section 110(l) requirements
are satisfied.
V. Incorporation by Reference
In this rule, the EPA proposes to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA proposes to incorporate by
reference the ARSD rules promulgated in 74:36, as described in section
II of this preamble. The EPA has made, and will continue to make, these
materials generally available through www.regulations.gov and/or at the
EPA Region 8 Office (please contact the person identified in the For
Further Information Contact section of this preamble for more
information).
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. 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 approve state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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 the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the proposed rule does not have tribal implications and
will not impose substantial direct costs on tribal governments or
preempt tribal law as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Greenhouse
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 21, 2019.
Debra H. Thomas,
Regional Administrator, Region 8.
[FR Doc. 2019-13636 Filed 6-26-19; 8:45 am]
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