Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Prevention of Significant Deterioration Program, 2860-2865 [2015-00872]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 80, Number 13 (Wednesday, January 21, 2015)]
[Proposed Rules]
[Pages 2860-2865]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-00872]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2014-0796; FRL-9921-75-Region 1]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; Prevention of Significant Deterioration Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
State of New Hampshire on November 15, 2012. The submittal proposes to 
ensure that the State PSD program is consistent with the Final New 
Source Review (NSR) Improvement Rule issued on December 31, 2002; the 
Final Rule Governing the Implementation of NSR for Fine Particulate 
Matter issued on May 16, 2008; and the Final Rule to Establish 
Increments, Significant Impact Levels (SILs) and a Significant 
Monitoring Concentration (SMC) issued on October 20, 2010. This action 
is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before February 20, 
2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2014-0796 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: mcdonnell.ida@epa.gov.
    3. Fax: (617) 918-0653
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2014-0796'', 
Ida McDonnell, U.S. Environmental Protection Agency, EPA New England 
Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, 
and Indoor Programs Unit, 5 Post Office Square--Suite 100, (Mail code 
OEP05-2), Boston, MA 02109-3912.
    5. Hand Delivery or Courier: Deliver your comments to: Ida 
McDonnell, Manager, Air Permits, Toxics, and Indoor Programs Unit, U.S. 
Environmental Protection Agency, EPA New England Regional Office, 
Office of Ecosystem Protection, Air Permits, Toxics and Indoor Programs 
Unit, 5 Post Office Square--Suite 100, (mail code OEP05-2), Boston, MA 
02109-3912. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2014-0796. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 through www.regulations.gov, or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means 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 EPA without going through 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, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.

[[Page 2861]]

Electronic files should avoid the use of special characters, any form 
of encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA New England Regional Office, Air Permits, Toxics 
and Indoor Programs Unit, 5 Post Office Square--Suite 100, Boston, MA. 
EPA requests that if at all possible, you contact the contact listed in 
the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. The Regional Office's official hours of business are Monday 
through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.
    In addition, copies of the state submittal and EPA's proposed 
approval and technical support document are also available for public 
inspection during normal business hours, by appointment at the Air 
Resources Division, New Hampshire Department of Environmental Services, 
6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095.

FOR FURTHER INFORMATION CONTACT: Brendan McCahill, U.S. Environmental 
Protection Agency, EPA New England Regional Office, Office of Ecosystem 
Protection, Air Permits, Toxics, and Indoor Programs Unit, 5 Post 
Office Square--Suite 100, (mail code OEP05-2), Boston, MA 02109-3912, 
telephone number (617) 918-1652, Fax number (617) 918-0652, email 
mccahill.brendan@EPA.GOV.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

Table of Contents

I. What action is EPA proposing in this document?
II. What is the background for New Hampshire's November 15, 2012 SIP 
submittal?
    A. What revisions did EPA make in December 31, 2002?
    B. What revisions did EPA make in May 16, 2008?
    C. What revisions did EPA make in October 20, 2010?
III. What is EPA's analysis of New Hampshire's proposed SIP 
revision?
    A. What requirements did EPA use to approve New Hampshire's SIP 
submittal?
    B. What provisions did NH DES include in its November 15, 2012 
SIP submittal?
    C. How did the New Hampshire November 15, 2012 SIP submittal 
meet the new and existing PSD program requirements?
    D. How did NH DES demonstrate that the definition for ``Baseline 
Actual Emissions'' is as stringent as the corresponding federal 
definition?
    1. Description of State and Federal definition for ``Baseline 
Actual Emissions''
    2. Description of Demonstration
IV. How did New Hampshire's November 15, 2012 SIP submittal comply 
with the relevant legal decisions issued by the United States Court 
of Appeals for the District of Columbia and the United States 
Supreme Court effecting PM2.5 SMC and greenhouse gas 
requirements, respectively?
    A. PM2.5 SMC
    B. Greenhouse Gas Requirements
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. What action is EPA proposing in this document?

    On November 15, 2012, the New Hampshire Department of Environmental 
Services (NH DES) submitted a proposed SIP revision establishing the 
State's PSD Program under PART Env-A 619, ``Prevention of Significant 
Deterioration.'' The revision incorporated by reference into state law, 
at PART Env-A 619, the federal PSD Program codified in the July 1, 2011 
edition of 40 CFR 52.21, and the State requested that EPA approve the 
revision into the State's SIP-approved PSD Program. The State's PSD 
Program includes provisions to implement the December 31, 2002 Final 
NSR Improvement Rules (67 FR 80185), the May 16, 2008 Final Rules 
Governing the Implementation of NSR for Fine Particulate Matter (73 FR 
28321), and the October 20, 2010 Final Rule to Establish Increments, 
SILs and SMC for Fine Particulate Matter (75 FR 64863). The State's PSD 
program also includes provisions EPA first approved on October 28, 2002 
(67 FR 65710) and that continue to apply.
    After reviewing the submittal, EPA proposes to approve the NH DES's 
November 15, 2012 submittal to establish PART Env-A 619 ``Prevention of 
Significant Deterioration'' into the SIP. PART Env-A 619 will supersede 
all other versions of the PSD program currently approved in New 
Hampshire's SIP. EPA's proposed approval is contingent on a letter 
dated December 9, 2014 from NH DES. As described in the letter, the 
November 15, 2012 submittal establishes an SMC level for 
PM2.5. SMC is a screening tool used to determine if a source 
must submit pre-construction air quality monitoring data prior to 
constructing or modifying a facility. The U.S. Court of Appeals for the 
District of Columbia vacated provisions promulgated as part of the 
October 20, 2010 rule to add PM2.5 SMCs to SIP-approved PSD 
programs. On December 9, 2013 (78 FR 73698), EPA issued a Final Rule 
that revised the existing PM2.5 SMC listed in sections 40 
CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms per 
cubic meter (0 [mu]g/m\3\). The December 9, 2014 letter amends the NH 
DES request that EPA approve the November 15, 2012 SIP submittal 
consistent with the Court's decision. The NH DES now considers the SIP 
submittal to include a PM2.5 SMC of 0 [mu]g/m\3\ and by the 
December 9, 2014 letter, confirms that it will not apply the 
PM2.5 SMC of 4 [mu]g/m\3\ to any pending or future PSD 
permit actions.

II. What is the background for New Hampshire's November 15, 2012 SIP 
submittal?

    New Hampshire's proposal to adopt the July 1, 2011 edition of 40 
CFR 52.21 into its SIP-approved PSD program involves the addition of 
several major changes made to the State's PSD program since EPA first 
approved the state's PSD program on October 28, 2002. More details 
regarding these rule changes are found in the respective final 
rulemakings and are summarized below.
    The November 15, 2012 SIP submittal also retains the major PSD 
program provisions first approved into the SIP on October 28, 2002 
without alteration or revision. These provisions include requirements 
to apply Best Available Control Technology (BACT) and to conduct an air 
quality analysis demonstrating any new emission increase does not 
violate applicable NAAQS or increment.

A. What revisions did EPA make in December 31, 2002?

    EPA issued a Final Rule entitled, ``Prevention of Significant 
Deterioration (PSD) and Nonattainment New Source Review (NSR): Baseline 
Emissions Determination, Actual-to-Future-Actual Methodology, Plantwide 
Applicability Limitations, Clean Units, Pollution Control Projects'' 
(67 FR 80185, December 31, 2002). The rule made a number of changes to 
the applicability requirements of the Federal PSD Program including the 
following:
     A new definition of ``actual emission baseline'' that 
defines an

[[Page 2862]]

emission unit's pre-modification actual emissions;
     New ``Applicability Procedures'' under 40 CFR 51.166(a)(7) 
that define the test method used to calculate the emission increase 
from the construction or modification of new or existing emission 
units;
     The expansion of the ``Actual-to-Projected Actual'' 
applicability test to determine if projects at non-Electric Utility 
Steam Generating Units (non-EUSGU) are major modifications. The pre-
2002 federal NSR regulations restricted the Actual-to-Projected Actual 
applicability test to EUSGUs only;
     New procedures requiring sources to monitor, keep records 
and report emissions emitted from projects at existing emission units 
if there is a reasonable possibility (as defined in 40 CFR 
51.166(r)(6)) that a project that is not a major modification may 
result in a significant emission increase; and
     The addition of the optional ``Plantwide Applicability 
Test'' (PAL) for all source categories.
    The Federal Register (FR) notification for the NSR Improvement rule 
gave State permitting agencies until January 2, 2006 to submit SIP 
amendments that implemented the new federal revisions or, if a state 
permitting agency did not submit any SIP amendments or submitted 
amendments that differed from the federal rules, a demonstration 
showing that its existing permitting program or amended permitting 
program is at least as stringent as EPA's revised program. In addition, 
federal regulations governing SIP-approved PSD programs at 40 CFR 
51.166 ``Prevention of Significant Deterioration of Air Quality'' 
require that all state plans use the specific definitions as 
promulgated by EPA. Deviations from the federal wording for each 
definition will be approved only if the State specifically demonstrates 
that the submitted definition is more stringent than, or at least as 
stringent in all respects as, the corresponding federal definition.
    The notification for the Final NSR Improvement rule at https://www.epa.gov/NSR/fr/20021231_80186.pdf provides a full description of 
the NSR Improvements, the requirements for SIP submittals, and the 
final amended Federal rule for SIP-approved PSD programs at 40 CFR 
51.166 ``Prevention of Significant Deterioration of Air Quality.''

B. What revisions did EPA make in May 16, 2008?

    EPA issued a Final Rule governing the implementation of NSR for 
PM2.5. (73 FR 28321, May 16, 2008). The rule includes the 
new major source applicability threshold level for major sources of 
PM2.5. A source is defined as a major source and subject to 
the PM2.5 PSD requirements if the source is included as one 
of the specific twenty-eight source categories listed in the current 
Federal PSD regulations and emits 100 or more tons per year (tpy) of a 
regulated pollutant or not included on the list and emits 250 or more 
tpy of a regulated pollutant.
    The rule identified the following list of pollutants that 
contribute to PM2.5 formation and a description of whether 
the pollutant as a precursor to PM2.5 is regulated under the 
PSD program:
     Direct emissions of PM2.5--regulated under the 
PSD program;
     Sulfur dioxide (SO2)--regulated under the PSD 
program;
     Nitrogen oxides (NOX)--regulated under the PSD 
program unless state demonstrates that NOX emissions are not 
a significant contributor to the formation of PM2.5 for an 
area(s) in the state;
     Volatile organic compounds (VOC)--not regulated under the 
PSD program unless state demonstrates that VOC emissions are a 
significant contributor to the formation of PM2.5 for an 
area(s) in the state; and
     Ammonia--not regulated under the PSD program unless state 
demonstrates that ammonia emissions are a significant contributor to 
the formation of PM2.5 for an area(s) in the state
    The rule also identifies the following significant emission rates 
used to determine if increases in direct emissions of PM2.5 
or increases in PM2.5 precursors at an existing facility 
result in major modifications and are subject to the PSD program:
     Direct PM2.5 emissions--10 tpy
     SO2 emissions--40 tpy
     NOX emissions--40 tpy
     VOC emissions (if regulated) 40 tpy unless the state 
demonstrates that a lower rate is appropriate.

C. What revisions did EPA make in October 20, 2010?

    EPA issued a Final Rule to establish Increments, Significant Impact 
Levels (SILs) and Significant Monitoring Concentration (SMC) for the 
new PM2.5 standard. (75 FR 64864, October 20, 2010) This 
final rule is the mechanism used to estimate significant deterioration 
of ambient air quality for a pollutant. An increment is the maximum 
allowable increase in ambient concentrations of a pollutant in an area. 
Permitting agencies may not issue a PSD permit if modeled impacts from 
the new or modified source results in increases above the increment. 
SILs is a screening tool used to determine whether a proposed source's 
emissions will have a ``significant'' impact on air quality in the 
area. SMC is a screening tool that may be used to determine if a source 
must submit to the permitting authority 1 year of pre-construction air 
quality monitoring data prior to constructing or modifying a facility.
    This final rule establishes increments, SILs, and an SMC for 
PM2.5 to facilitate ambient air quality monitoring and 
modeling under the PSD regulations for areas designated attainment or 
unclassifiable for PM2.5. This rule together with the May 
16, 2008 PM2.5 rule provides the necessary elements to 
implement the PM2.5 program in any area.

III. What is EPA's analysis of New Hampshire's proposed SIP revision?

A. What requirements did EPA use to approve New Hampshire's SIP 
submittal?

    Section 110(a)(1) of the CAA requires each state to submit to EPA a 
plan which provides for the implementation, maintenance and enforcement 
of each NAAQS. These plans, generally referred to as the SIP, include 
numerous air quality monitoring, emission inventory, and emission 
control requirements designed to obtain and maintain the NAAQS within 
the state. The CAA requires states to adopt SIP revisions into the 
state regulations and to submit the revisions to EPA for approval. 
Section 110(l) of the CAA states that EPA shall not approve a revision 
to the SIP if the revision would interfere with any applicable 
requirement concerning attainment (of the NAAQS) and reasonable further 
progress (as defined in CAA section 7501) or any other requirement of 
the CAA.
    In addition, federal regulations governing SIP-approved PSD 
programs at 40 CFR 51.166 ``Prevention of Significant Deterioration of 
Air Quality'' require that all state plans use the specific definitions 
as promulgated by EPA. Deviations from the federal wording for each 
definition will be approved only if the state specifically demonstrates 
that the submitted definition is more stringent, or at least as 
stringent in all respects, as the corresponding federal definition.

B. What provisions did NH DES include in its November 15, 2012 SIP 
submittal?

    New Hampshire's SIP submittal added or revised the following 
provisions to its PSD Program under Env-A 619 Prevention of Significant 
Deterioration:

 Env-A 619.01: Purpose
 Env-A 619.02: Applicability

[[Page 2863]]

 Env-A 619.03: PSD Program Requirements
 Env-A 619.04: Owner or Operator Obligations
 Env-A 619.05: Permit Application Requirements
 Env-A 619.06: Designation of Class I and Class II Areas
 Env-A 619.07: Department Review and Public Notice
 Env-A 619.08: Increment Consumption

    The following is a description of each section.
    Env-A 619.01 Purpose defines the purpose of the part to implement 
the PSD program as set forth in Sections 160 through 169B of the Act 
and 40 CFR 52.21.
    Env-A 619.02 Applicability identifies the sources subject to the 
state PSD program: New major sources or major modifications of a 
regulated NSR pollutant located in an area designated as attainment or 
unclassifiable under 107(d)(1) of the act for the regulated NSR 
pollutant. The section also allows an owner or operator to demonstrate 
that the program does not apply to a major source or major modification 
with respect to a particular pollutant if the source or modification is 
located in an area designated as nonattainment under 107 of the Act for 
the particular pollutant.
    Env-A 619.03 PSD Program Requirements adopts the specific 
provisions under the July 1, 2011 edition of 40 CFR 52.21 needed to 
implement a SIP-approved PSD program that meets the requirements of 
Title I of the Act. Except for the definition of ``Baseline actual 
emissions,'' the NH DES adopted the federal provisions into the state 
program without revision.
    The section includes instructions to replace the term 
``administrator'' used in the 40 CFR 52.21 with the term 
``department.'' The replacement of ``administrator'' with 
``department'' identifies those federal provisions the NH DES intends 
to implement. The section also includes instructions to retain the term 
administrator for a list of provisions adopted into the state PSD 
program but that cannot be implemented by the NH DES.
    Env-A 619.04 Owner or Operator Obligations includes the following 
requirements:
     the owner or operator of any new major stationary source 
or major modification subject to Env-A 619 shall comply with BACT; and
     the owner or operator of an existing major stationary 
source with a Plantwide applicability limit (PAL) shall comply with the 
provisions of its PAL.
    Env-A 619.05 Permit Application Requirements includes references to 
the state procedures to process permit applications, the information 
required in applications, specific information for PALs, and procedures 
for the department to notify federal land managers.
    Env-A 619.06 Designation of Class I and class II Areas identifies 
the Class I and Class II areas in New Hampshire.
    Env-A 619.07 Department Review and public notice identifies the 
requirements to review permit applications, notify and resolve 
application deficiencies, and schedules for making final determinations 
in accordance with criteria set forth in Env-A 607.04 and 40 CFR 
52.21(j) through (p). Finally, the section identifies the public notice 
procedures under Env-A 621.04 for permit issuance including the 
requirement for a 30-day public notice and comment period and permit 
appeal procedures under the state judicial review regulations.
    Env-A 619.08 Increment Consumption requires the state to 
periodically review pollutant concentration increases over baseline to 
determine whether ambient air increments have been violated in any PSD 
area within the state. If a violation is discovered, the NH DES shall 
submit to EPA a plan for insuring the violation shall be mitigated as 
soon as possible.

C. How did the New Hampshire November 15, 2012 SIP submittal meet the 
new and existing PSD program requirements?

    With the exception of the revision to the definition of ``baseline 
actual emissions,'' the NH DES's SIP submittal incorporated by 
reference into State regulations the federal PSD Program definitions 
and requirements as promulgated under the July 1, 2011 edition of 40 
CFR 52.21, without revision. By incorporating the Federal provisions 
under 40 CFR 52.21 without revision, the state's proposed SIP revision 
satisfies the existing SIP-approved PSD program requirements approved 
on October 28, 2002, the December 31, 2002 NSR Improvement Rule, the 
May 16, 2008 PM2.5 NSR Rule and October 20, 2010 
PM2.5 Increment, SMC and SIL Rule.
    In EPA's October 28, 2002 approval of New Hampshire's state PSD 
program, New Hampshire's regulations included public participation and 
permit appeal procedural requirements that are specific to the State's 
permitting programs. The requirements complied with federal procedural 
requirements including provisions for a public notice and comment 
period of a minimum of 30 days. These requirements continue to meet 
federal PSD permit procedural requirements.
    EPA's October 30, 2014 Technical Support Document (TSD) for the 
proposed approval described in this document includes a complete list 
of federal provisions adopted into the state PSD program, the 
corresponding state requirements and a description of how the state 
provision complies with the federal requirements.

D. How did NH DES demonstrate that the definition for ``Baseline Actual 
Emissions'' is as stringent as the corresponding federal definition?

    1. Description of State and Federal definition for ``Baseline 
Actual Emissions''
    The ``Baseline actual emissions'' definition is used in all major 
source applicability tests and defines the actual emissions from a 
source before the project. The difference between the pre-project 
``actual emission baseline'' and the post-project ``projected actual 
emissions'' determines the emission increase from a project.
    The federal definition of ``Baseline actual emissions'' at 40 CFR 
52.21(b)(48) and 40 CFR 51.166(b)(47) defines separate baseline 
emissions calculations for existing electric utility steam generating 
units (EUSGU) and all other existing emission units other than EUSGU as 
follows:
     Existing EUSGU: The owner/operator may select any 
consecutive 24-month period for each pollutant without the need for a 
demonstration within the 5-year period immediately preceding when the 
owner/operator begins actual construction of the project. The reviewing 
authority may allow the use of a different time period upon a 
determination showing the time period is more representative of normal 
source operations. A different consecutive 24-month period can be used 
for each regulated pollutant.
     All other existing emission units: The owner/operator may 
select any consecutive 24-month period in the 10-year period 
immediately preceding either the date the owner/operator begins actual 
construction or the date a completed permit application is received by 
the reviewing authority for a permit required either under this section 
or under a plan approved by the administrator, whichever is earlier. No 
other different time period is allowed. A different consecutive 24-
month period can be used for each regulated pollutant.
    The NH DES definition tracks the requirements in 40 CFR 
52.21(b)(48) except for the following revisions:

[[Page 2864]]

     The definition applies to EUSGU and non-EUSGU.
     The owner/operator may select a consecutive 24-month 
period for each pollutant within a 5-year period without the need for a 
demonstration.
     The department shall allow the use of a different time 
period up to 10-years preceding the date when the owner/operator begins 
actual construction upon adequate demonstration by the applicant that 
it is more representative of normal source operations.
     The same consecutive 24-month period shall be used for 
each regulated pollutant.
     The department may allow a different consecutive 24-month 
period for different pollutants upon a determination that the 
alternative time period is more representative of normal source 
operations upon adequate demonstration by the applicant that it is more 
representative of normal source operations.
2. Description of Demonstration
    As noted in the background section, the federal regulations 
governing SIP-approved PSD Programs at 40 CFR 51.166 ``Prevention of 
significant deterioration of air quality'' require that all state plans 
use the specific definitions as promulgated by EPA. Deviations from the 
federal wording for each definition will be approved only if the State 
specifically demonstrates that the submitted definition is more 
stringent, or at least as stringent in all respects, as the 
corresponding federal definition.
    As part of the Final 2002 NSR final rule, EPA prepared a November 
21, 2002, ``Supplemental Analysis of the Environmental Impact of the 
2002 Final NSR Improvement Rules (Supplemental Analysis).'' The 
Supplemental Analysis provided a description of the NSR reform rules 
and an analysis demonstrating that the reform rule's environmental 
benefits were equivalent to or more stringent than the existing pre-
reform rules. For the addition of the definition of ``Baseline actual 
emissions,'' EPA concluded that the use of a 10 year period to select a 
baseline is a reasonable period considering the variability of 
different business cycles. EPA believes the effect from the new 
definition is small and would not alter the baseline for 90% of the 
sources. For the remaining 10%, EPA cannot draw general conclusions 
about how many sources would or would not receive an alternative 
baseline nor estimate what emission consequences would result. EPA's 
complete analysis of the definition of ``Baseline Actual Emissions'' 
can be found at https://www.epa.gov/nsr/documents/nsr-analysis.pdf.
    The NH DES included as part of their SIP submittal a November 16, 
2012 memorandum entitled ``Supplemental Information for SIP Revision 
Request Parts of Env-A 600, Statewide Permit System.'' Similar to the 
EPA's study, the memorandum described the difference between the 
federal and state ``Baseline actual emissions'' definitions and an 
emissions study that compares the effects of the state and federal 
definition on changes to actual sources located in New Hampshire. The 
NH DES's analysis looked at the federal definition baseline actual 
emission, the state's default baseline actual emission method (i.e., 24 
consecutive months selected from the 5 years preceding actual 
construction for all regulated pollutants), and the state's baseline 
emission baseline if the owner/operator could demonstrate normal source 
operations:
     For 24 consecutive months selected from the 5 to 10 year 
period preceding actual construction, and
     for different 24 consecutive months selected for different 
regulated pollutants.
    For the majority of changes occurring at any type of source, the 
state's default baseline actual emissions method resulted in the same 
or lower baseline emissions as compared to the federal definition. For 
owner/operators that could demonstrate normal source operations for 24 
consecutive months selected from the 5 to 10 year period preceding 
construction and for different regulated pollutants, the results showed 
that state's definition resulted in baseline emissions that were 
equivalent in all cases to the federal definition.
    EPA concludes the NH DES's definition is as stringent in all 
respects as the federal definition. The state definition results in the 
same emission baseline for new emission units, changes to existing 
EUSGUs, and changes at existing units that emit one pollutant and with 
high utilization rates within the last 5 years. For all other changes, 
the state's definition allows the use of baselines selected outside of 
5 years (but before 10-years) and baselines for each regulated 
pollutant where appropriately demonstrated. As a result, any difference 
in the application of the state and federal definition on the selection 
of baseline emissions, if any, would be insignificant and would result 
in similar PSD applicability decisions, emission limitations or 
emission control requirements.

IV. How did New Hampshire's November 15, 2012 SIP submittal comply with 
the relevant legal decisions issued by the United States Court of 
Appeals for the District of Columbia and the United States Supreme 
Court effecting PM2.5 SMC and greenhouse gas requirements, 
respectively?

A. PM2.5 SMC

    The November 15, 2012 SIP submittal includes requirements to make 
the State's PSD program comply with the federal PSD program for 
PM2.5 NAAQS. After the NH DES submitted the November 2012 
proposed PSD SIP revision to EPA, the U.S. Court of Appeals for the 
District of Columbia, in Sierra Club v. EPA, 705 F.3d 458 (2013), 
vacated the provisions at 40 CFR 51.166(i)(5)(i)(c) and 
52.21(i)(5)(i)(c), relating to PM2.5 SMC, that were 
promulgated as part of EPA's 2010 PM2.5 PSD rulemaking. (75 
FR 64864, October 20, 2010). In a letter dated December 9, 2014, the NH 
DES amended its November 15, 2012 SIP submittal to clarify that the 
submittal is no longer intended to include the PM2.5 SMC 
provisions. In addition, the NH DES letter confirms that it will not 
apply the PM2.5 SMC provisions to pending or future PSD 
permit actions.

B. Greenhouse Gas Requirements

    The November 15, 2012 submittal includes requirements that had 
earlier been approved by EPA into the New Hampshire SIP on March 3, 
2012, establishing appropriate emission thresholds for determining 
which new and modified stationary sources are subject to New 
Hampshire's PSD permitting requirements for their greenhouse gas (GHG) 
emissions.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD 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). In order to act consistently with 
its understanding of the Court's decision pending further judicial 
action to effectuate the decision, the EPA is not continuing to apply 
EPA regulations that would require that SIPs

[[Page 2865]]

include permitting requirements that the Supreme Court found 
impermissible. Specifically, EPA is not applying the requirement that a 
state's SIP-approved PSD program require that sources obtain PSD 
permits when GHGs are the only pollutant (i) that the source emits or 
has the potential to emit above the major source thresholds, or (ii) 
for which there is a significant emissions increase and a significant 
net emissions increase from a modification (e.g. 40 CFR 
51.166(b)(48)(v)). EPA anticipates a need to revise federal PSD rules 
in light of the Supreme Court opinion. In addition, EPA anticipates 
that many states will revise their existing SIP-approved PSD programs 
in light of the Supreme Court's decision. The timing and content of 
subsequent EPA actions with respect to the EPA regulations and state 
PSD program approvals are expected to be informed by additional legal 
process before the United States District Court for the District of 
Columbia Circuit. At this juncture, EPA is not expecting states to have 
revised their PSD programs and is only evaluating such submissions to 
assure that the state's program correctly addresses GHGs consistent 
with the Supreme Court's decision.
    In its December 9, 2014 letter, New Hampshire indicated that it 
will not implement the GHG requirements as to sources that would be 
subject to the PSD program solely by virtue of their GHG emissions. New 
Hampshire indicated that it will not treat GHG as a pollutant for 
purposes of determining whether a source is a major source required to 
obtain a PSD permit. However, consistent with the Supreme Court's June 
23, 1014 decision, New Hampshire will be implementing the GHG 
requirements that apply to sources that are subject to the PSD program 
requirements by virtue of other regulated pollutants. Once EPA revises 
its regulations to address the Supreme Court's recent GHG decision, the 
NH DES will revise its rules and submit the revisions to EPA for 
approval into the SIP.

V. What action is EPA taking?

    EPA proposes to approve the NH DES's November 15, 2012 proposed SIP 
revision. The proposed SIP revision, as clarified in a letter dated 
December 9, 2014 from the NH DES, establishes a state PSD program at 
Env-A 619, ``Prevention of Significant Deterioration'' that meets all 
requirements for a SIP-approved PSD program under 40 CFR 51.166, 
section 110 of the CAA, and EPA regulations.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves 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 Order 
12866 (58 FR 51735, October 4, 1993);
     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 Clean Air Act; 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).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not 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, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 31, 2014.
Deborah A Szaro,
Acting Regional Administrator, EPA New England.
[FR Doc. 2015-00872 Filed 1-20-15; 8:45 am]
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