Approval and Promulgation of Implementation Plans; Alaska: Prevention of Significant Deterioration; Greenhouse Gas Permitting Authority and Tailoring Rule Revision, 75658-75661 [2010-30479]
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75658
Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Proposed Rules
TABLE 1—2007–2009 FOURTH-HIGH 8-HOUR AVERAGE OZONE CONCENTRATIONS AND 2007–2009 DESIGN VALUES
(PARTS PER MILLION) IN THE BOSTON-MANCHESTER-PORTSMOUTH (SE), NEW HAMPSHIRE AREA—Continued
Location
AQS site ID
Nashua .................................................................................
Portsmouth ...........................................................................
Rye .......................................................................................
EPA’s review of these data indicates
that the Boston-Manchester-Portsmouth
(SE), New Hampshire ozone
nonattainment area has met the 1997 8hour ozone NAAQS, based on 2007–
2009 data. EPA believes these data,
coupled with preliminary data available
through June 15, 2010, indicate that the
Boston-Manchester-Portsmouth (SE),
New Hampshire area has also attained
the standard as of its applicable
attainment date of June 15, 2010. Thus,
in accordance with CAA section
181(b)(2), EPA is also proposing to
determine that the Boston-ManchesterPortsmouth (SE), New Hampshire area
has attained the standard by its
applicable attainment date.
EPA is soliciting public comment on
the issues discussed in this notice or on
other relevant matters pertaining to this
rulemaking action. These comments
will be considered before EPA takes
final action. Interested parties may
participate in the Federal rulemaking
procedure by submitting written
comments to the EPA New England
Regional Office listed in the ADDRESSES
section of this Federal Register.
jdjones on DSK8KYBLC1PROD with PROPOSALS-1
V. Proposed Actions
EPA is proposing to determine that
the Boston-Manchester-Portsmouth (SE),
New Hampshire 1997 8-hour ozone
moderate nonattainment area continues
to attain the 1997 8-hour ozone
standard, based on complete, qualityassured data from 2007 through 2009.
Data for 2010 that are available in AQS
through June 30, 2010 are consistent
with continued attainment. As provided
in 40 CFR Section 51.918, if EPA
finalizes this determination, the
requirements for New Hampshire to
submit planning SIPs related to
attainment of the 1997 8-hour ozone
NAAQS for this area remain suspended,
for so long as the area continues to
attain the standard. In addition, under
section 181(b)(2)(A) of the Clean Air Act
and the provisions of EPA’s ozone
implementation rule (see 40 CFR
51.902(a)), EPA is proposing to
determine that this area has attained the
1997 ozone NAAQS by its applicable
attainment date of June 15, 2010.
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4th high 2007
4th high 2008
4th high 2009
0.081
0.078
0.086
0.067
0.069
0.075
0.066
0.070
0.068
330111011
330150014
330150016
VI. Statutory and Executive Order
Reviews
These actions propose to make
determinations of attainment based on
air quality, and would, if finalized,
result in the continued suspension of
certain Federal requirements, and
would not impose additional
requirements beyond those imposed by
State law. For that reason, these
proposed actions:
• Are 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);
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are 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.);
• Do 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);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not economically significant
regulatory actions based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory
actions subject to Executive Order
13211 (66 FR 28355, May 22, 2001);
• Are not subject to the 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
• Do 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,
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Design value
(07–09)
Sfmt 4702
0.071
0.072
0.076
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, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 24, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA New
England.
[FR Doc. 2010–30493 Filed 12–3–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2010–0921, FRL–9235–6]
Approval and Promulgation of
Implementation Plans; Alaska:
Prevention of Significant Deterioration;
Greenhouse Gas Permitting Authority
and Tailoring Rule Revision
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
a draft revision to the State
Implementation Plan (SIP), submitted
by the Commissioner of the Alaska
Department of Environmental
Conservation (ADEC) to EPA on October
25, 2010, for parallel processing. The
proposed SIP revision updates Alaska’s
Prevention of Significant Deterioration
(PSD) program to reflect changes to the
Federal PSD program relating to the
permitting of greenhouse gas (GHG)
emissions. EPA is proposing in this
action to approve those revisions if the
final SIP revision submitted by Alaska
to EPA is consistent with the draft SIP
revision.
DATES: Comments must be received on
or before January 5, 2011.
SUMMARY:
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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Proposed Rules
Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2010–0921, by any of the
following methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• E-mail: R10Public_Comments@epa.gov.
• Mail: Scott Hedges, EPA Region 10,
Office of Air, Waste and Toxics (AWT–
107), 1200 Sixth Avenue, Suite 900,
Seattle, WA 98101.
• Hand Delivery/Courier: EPA Region
10, 1200 Sixth Avenue, Suite 900,
Seattle, WA 98101. Attention: Scott
Hedges, Office of Air, Waste and Toxics,
AWT–107. Such deliveries are only
accepted during normal hours of
operation, and special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R10–OAR–2010–
0921. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
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 information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://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 e-mail comment directly
to EPA without going through https://
www.regulations.gov your e-mail
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.
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 docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
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ADDRESSES:
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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 in https://
www.regulations.gov or in hard copy
during normal business hours at the
Office of Air, Waste and Toxics, EPA
Region 10, 1200 Sixth Avenue, Seattle,
WA 98101.
FOR FURTHER INFORMATION CONTACT:
Scott Hedges at telephone number: (206)
553–0296, e-mail address:
hedges.scott@epa.gov, or the above EPA,
Region 10 address.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we’’, ‘‘us’’ or ‘‘our’’ are used, we mean
EPA. Information is organized as
follows:
Table of Contents
I. What action is EPA proposing today?
II. What is the background for the action that
EPA is proposing today?
III. What is EPA’s analysis of Alaska’s
proposed SIP revision?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. What action is EPA proposing today?
On October 25, 2010, ADEC submitted
a draft revision to EPA for approval into
the Alaska’s SIP to update Alaska’s PSD
program to reflect changes to the
Federal PSD program that would
authorize the State of Alaska to regulate
GHGs under its PSD program and
establish appropriate emission
thresholds for determining which new
or modified stationary sources become
subject to Alaska’s PSD permitting
requirements for GHG emissions. ADEC
subsequently clarified in an e-mail
dated November 16, 2010, that its
request is limited to updating the
incorporation by reference date of 40
CFR 52.21 in 18 AAC 50.040(h) in order
to incorporate the new definition of
‘‘subject to regulation’’ in 40 CFR
52.21(49) to clarify the meaning of the
definition of ‘‘regulated NSR pollutant’’
in the Alaska SIP so as to make the
Alaska SIP consistent with Federal PSD
requirements for the regulation of GHGs.
Because this draft SIP revision is not
yet State-effective, Alaska requested that
EPA ‘‘parallel process’’ the SIP revision.
Under this procedure, the EPA Regional
Office works closely with the State
while developing new or revised
regulations. Generally, the State submits
a copy of the proposed regulation or
other revisions before final
promulgation by the State. EPA reviews
this proposed State action and prepares
a notice of proposed rulemaking. EPA
publishes this notice of proposed
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rulemaking in the Federal Register and
solicits public comment in
approximately the same time frame
during which the State is completing its
rulemaking action.
In this case, the regulatory revisions
submitted in Alaska’s October 25, 2010,
proposed SIP revision have already gone
through public review and were
adopted by the Commissioner of ADEC
on September 27, 2010. On November 8,
2010, ADEC provided EPA with a
revised draft submittal following review
by the Alaska Department of Law. On
November 16, 2010, ADEC advised EPA
that the revisions that were filed by the
Alaska Lieutenant Governor on
November 9, 2010, will become effective
as a matter of State law on December 8,
2010, and will be submitted as a final
SIP revision before December 1, 2010.
Therefore, EPA is processing this
proposed rulemaking prior to Alaska’s
submission of the final SIP revision.
EPA is proposing to approve the
update to 18 AAC 50.040(h) with
respect to the definition of ‘‘subject to
regulation’’ as a revision to the Alaska
SIP if the final SIP revision relating to
the PSD permitting of GHGs submitted
by Alaska to EPA is consistent with the
proposed SIP revision. Final approval of
Alaska’s SIP revision will make Alaska’s
SIP for GHG-emitting sources consistent
with Federal PSD requirements for GHG
emissions, including the GHG emission
thresholds for PSD applicability. If
changes are made to the SIP revision
after this proposal, such changes will be
acknowledged in EPA’s final
rulemaking action and, if such changes
are significant, may require a reproposal
and an additional public comment
period.
II. What is the background for the
action that EPA is proposing today?
On June 3, 2010 (effective August 2,
2010), EPA promulgated a final
rulemaking tailoring the applicability
criteria that determine which stationary
sources and modification projects
become subject to permitting
requirements for GHG emissions under
the PSD and title V permitting
programs. See ‘‘Prevention of Significant
Deterioration and title V Greenhouse
Gas Tailoring Rule; Final Rule,’’ (the
Tailoring Rule), 75 FR 31514 (June 3,
2010).1 In particular, by amending the
definition of ‘‘subject to regulation,’’
EPA established thresholds for GHGs
with a phase-in approach for PSD
applicability and established the first
1 The Tailoring Rule also applies to the title V
program, which requires operating permits for
existing sources. However, today’s action does not
affect Alaska’s title V program.
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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Proposed Rules
two steps of the phase-in for the largest
GHG-emitters. As EPA explained in the
Tailoring Rule, the threshold limitations
are necessary because without it, PSD
would apply to all stationary sources
that emit or have the potential to emit
more than 100 or 250 tons of GHGs per
year beginning on January 2, 2011. This
is the date when EPA’s recently
promulgated Light Duty Vehicle Rule
takes effect,2 imposing control
requirements for the first time on GHGs.
If this January 2, 2011, date were to pass
without the Tailoring Rule being in
effect, PSD requirements would apply to
GHG emissions at the 100/250 tons per
year applicability levels provided under
a literal reading of the Clean Air Act
(CAA or the Act) as of that date. From
that point forward, a source owner
proposing to construct any new major
source that emits at or higher than the
applicability levels (and which therefore
may be referred to as a ‘‘major’’ source)
or modify any existing major source in
a way that would increase GHG
emissions would need to obtain a
permit under the PSD program that
addresses these emissions before
construction or modification could
begin. See 75 FR 31514.
As explained in the Tailoring Rule,
many State, local and Tribal area
programs will likely be able to
immediately implement the approach in
the Tailoring Rule without rule or
statutory changes by, for example,
interpreting the term ‘‘subject to
regulation’’ that is part of the
applicability provisions for PSD
permitting. EPA has requested
permitting authorities to confirm that
they will follow this implementation
approach for their programs, and if they
cannot, then EPA has requested that
they notify the Agency so that we can
take appropriate follow-up action to
narrow Federal approval of their
programs before GHGs become subject
to PSD permitting on January 2, 2011.
Narrowing EPA’s approval will ensure
that for Federal purposes, sources with
GHG emissions that are less than the
Tailoring Rule’s emission thresholds
will not be obligated under Federal law
to obtain PSD permits during the gap
between when GHG PSD requirements
go into effect on January 2, 2011 and
when either (1) EPA approves a SIP
revision adopting EPA’s tailoring
approach, or (2) if a State opts to
regulate smaller GHG-emitting sources,
the State demonstrates to EPA that it has
adequate resources to handle permitting
2 See ‘‘Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average Fuel
Economy Standards; Final Rule,’’ 75 FR 25324 (May
7, 2010).
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for such sources. EPA expects to finalize
the narrowing action prior to the
January 2, 2011 deadline with respect to
those States for which EPA will not
have approved the Tailoring Rule
thresholds in their SIPs by that time.
On August 2, 2010, Alaska provided
a letter to EPA explaining that its PSD
rules only apply to pollutants ‘‘subject to
regulation’’ at the time of adoption in
July 1, 2004, and that Alaska thus did
not have authority to issue PSD permits
that address GHG emissions. By notice
dated September 2, 2010, EPA issued a
proposed ‘‘Action to Ensure Authority to
Issue Permits Under the Prevention of
Significant Deterioration Program to
Sources of Greenhouse Gas Emissions:
Finding of Substantial Inadequacy and
SIP Call, Proposed Rule,’’ 75 FR 53892
(September 2, 2010) (GHG SIP Call). In
that action, along with a companion
proposal published at the same time,
EPA took steps to ensure that in States
that do not appear to have authority to
issue PSD permits to GHG-emitting
sources at present, either the State or
EPA will have the authority to issue
such permits by January 2, 2011. EPA
explained in the GHG SIP Call that,
although for most States, either the State
or EPA is already authorized to issue
PSD permits for GHG-emitting sources
as of that date, our preliminary
information showed that 13 States,
including Alaska, have EPA-approved
PSD programs that do not appear to
include GHG-emitting sources and
therefore do not appear to authorize
these States to issue PSD permits to
such sources. Therefore, EPA proposed
to find that these 13 States’ SIPs are
substantially inadequate to comply with
CAA requirements and, accordingly,
proposed to issue a SIP Call to require
a SIP revision that applies their SIP PSD
programs to GHG-emitting sources.3
In a companion rulemaking issued on
the same date, EPA proposed a Federal
Implementation Plan (FIP) that would
give EPA authority to apply EPA’s PSD
program to GHG-emitting sources in any
State that is unable to submit a
corrective SIP revision by its deadline.
See ‘‘Action to Ensure Authority to Issue
Permits Under the Prevention of
Significant Deterioration Program to
Sources of Greenhouse Gas Emissions:
Federal Implementation Plan, Proposed
Rule,’’ 75 FR 53883 (September 2, 2010)
3 As explained in the proposed GHG SIP Call (75
FR 53892, 53896), EPA intends to finalize its
finding of substantial inadequacy and the SIP call
for the 13 listed States by December 1,2010. EPA
requested that the States for which EPA is
proposing a SIP call identify the deadline—between
3 weeks and 12 months from the date of signature
of the final SIP Call—that they would accept for
submitting their corrective SIP revision.
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(GHG FIP). Alaska was one of the States
for which EPA proposed a SIP Call and
a FIP because, as discussed above,
Alaska advised EPA that it did not
interpret its then current PSD
regulations as providing it with the
authority to regulate GHGs.
Alaska’s proposed SIP revision that is
the subject of this rulemaking, however,
addresses this authority. Therefore, if
the State submits its final SIP revision
to EPA prior to the final rulemaking for
the GHG SIP Call, EPA will not take
final action on the GHG SIP Call for
Alaska. Additionally, Alaska would not
be subject to the FIP if EPA finalizes
today’s proposed approval of the
Alaska’s SIP revision.
III. What is EPA’s analysis of Alaska’s
proposed SIP revision?
The State of Alaska is currently a SIPapproved State for the PSD program,
and has incorporated EPA’s 2002 New
Source Review (NSR) reform revisions
for PSD into its SIP. See 72 FR 45378
(August 14, 2007). However, Alaska
does not interpret its PSD rules that are
currently in the SIP, which generally
incorporate the Federal rules by
reference, to be automatically updating
to include newly designated regulated
air pollutants such as GHGs. As
discussed above, in a letter provided to
EPA on August 2, 2010, Alaska notified
EPA that the State did not then have the
authority to regulate GHGs under the
PSD program and thus was in the
process of revising its regulations (the
subject of this proposed action) to
provide this authority.
The proposed rules submitted by
ADEC to EPA with the proposed SIP
revision updates its incorporation by
reference of the Federal PSD
requirements at 40 CFR 51.166 and 40
CFR 52.21–40 CFR 52.22 (Prevention of
Significant Deterioration of Air Quality)
to include all revisions to these Federal
requirements as of August 2, 2010, the
effective date of the Tailoring Rule. See
18 AAC 50.040(h). ADEC has requested
that EPA approve this update only with
respect to the definition of ‘‘subject to
regulation’’ in 40 CFR 52.21(b)(49)
promulgated in the Tailoring Rule
(effective August 2, 2010), which in turn
clarifies the meaning of the State
definition of ‘‘regulated NSR
pollutant.’’ 4 As discussed below, ADEC
intends to request that EPA approve
4 18 AAC 50.040(h)(4)(C)(i) states that the
definition of ‘‘regulated NSR pollutant’’ in 40 CFR
52.21(b)(50) is not adopted and that that term shall
have the meaning assigned to it in 18 AAC 50.990.
The SIP-approved version of 18 AAC 50.990(92)
states that ‘‘regulated NSR pollutant’’ has the
meaning given in 40 CFR 51.166(b)(49), which is
the same definition as in 40 CFR 52.21(b)(50).
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these rule revisions with respect to all
other changes in a subsequent and
separate SIP revision request.
As discussed above, unless EPA either
approves the Alaska SIP revision
authorizing the PSD permitting of GHG
emissions by January 2, 2010, or unless
EPA promulgates a FIP to do so, such
sources will be unable to receive
preconstruction permits and therefore
may not be able to construct or modify
in the State of Alaska after that date.
Alaska’s incorporation by reference of
the new definition of ‘‘subject to
regulation’’ at 40 CFR 52.21(b)(49) is
consistent with EPA’s regulation of GHG
emissions under the Federal PSD
program. Therefore, if the final SIP
submitted by ADEC to EPA is consistent
with the proposed SIP revision, EPA is
proposing to approve this revision
because Alaska’s regulation is consistent
with the CAA PSD requirements and its
implementing regulations regarding
GHGs.
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IV. Proposed Action
Pursuant to section 110 of the CAA,
EPA is proposing to approve the State
of Alaska’s draft SIP revision that
reflects changes to the Federal PSD
program as of August 2, 2010, relating
to the permitting of GHGs if the final
SIP revision submitted by Alaska to EPA
is consistent with the proposed SIP
revision. This proposed SIP revision
provides Alaska with the authority to
regulate GHGs under its PSD program
and establishes appropriate emissions
thresholds for determining PSD
applicability to new and modified GHGemitting sources in accordance with
EPA’s Tailoring Rule. EPA has made the
preliminary determination that this SIP
revision is approvable because it is in
accordance with the CAA and EPA
regulations regarding PSD permitting for
GHGs.
Note that ADEC has made other
changes to its rules for PSD permitting
and other air regulations that it has not
submitted as part of this draft SIP
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revision (subject to this action) and does
not intend to submit as part of its final
SIP submission. However, ADEC does
intend to submit these other rules and
regulations as a subsequent SIP revision
in the near future. Because of the need
to approve as a SIP revision the changes
relating to the PSD permitting of GHGs
by January 2, 2011 or as soon thereafter
as possible to ensure the State has
adequate authority to issue PSD permits
to subject sources emitting GHGs, once
the requirements go into effect as a
matter of Federal law, EPA believes it is
appropriate to approve Alaska’s
revisions that update the Alaska PSD
program to address GHG emissions as a
SIP strengthening measure.
V. 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,
EPA’s role is to approve State choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves the State’s law
as meeting Federal requirements and
does not impose additional
requirements beyond those imposed by
the State’s 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
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75661
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).
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 Alaska, 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, Incorporation by
reference, Intergovernmental relations,
and Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 19, 2010.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2010–30479 Filed 12–3–10; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 75, Number 233 (Monday, December 6, 2010)]
[Proposed Rules]
[Pages 75658-75661]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30479]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2010-0921, FRL-9235-6]
Approval and Promulgation of Implementation Plans; Alaska:
Prevention of Significant Deterioration; Greenhouse Gas Permitting
Authority and Tailoring Rule Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a draft revision to the State
Implementation Plan (SIP), submitted by the Commissioner of the Alaska
Department of Environmental Conservation (ADEC) to EPA on October 25,
2010, for parallel processing. The proposed SIP revision updates
Alaska's Prevention of Significant Deterioration (PSD) program to
reflect changes to the Federal PSD program relating to the permitting
of greenhouse gas (GHG) emissions. EPA is proposing in this action to
approve those revisions if the final SIP revision submitted by Alaska
to EPA is consistent with the draft SIP revision.
DATES: Comments must be received on or before January 5, 2011.
[[Page 75659]]
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2010-0921, by any of the following methods:
https://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: R10-Public_Comments@epa.gov.
Mail: Scott Hedges, EPA Region 10, Office of Air, Waste
and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
Hand Delivery/Courier: EPA Region 10, 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101. Attention: Scott Hedges, Office of Air,
Waste and Toxics, AWT-107. Such deliveries are only accepted during
normal hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2010-0921. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://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 information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://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 e-mail comment directly to EPA without
going through https://www.regulations.gov your e-mail 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. 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 docket are listed in the https://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, is not placed on the Internet and will be
publicly available only in hard copy. Publicly available docket
materials are available either electronically in https://www.regulations.gov or in hard copy during normal business hours at the
Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue,
Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Scott Hedges at telephone number:
(206) 553-0296, e-mail address: hedges.scott@epa.gov, or the above EPA,
Region 10 address.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',
``us'' or ``our'' are used, we mean EPA. Information is organized as
follows:
Table of Contents
I. What action is EPA proposing today?
II. What is the background for the action that EPA is proposing
today?
III. What is EPA's analysis of Alaska's proposed SIP revision?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. What action is EPA proposing today?
On October 25, 2010, ADEC submitted a draft revision to EPA for
approval into the Alaska's SIP to update Alaska's PSD program to
reflect changes to the Federal PSD program that would authorize the
State of Alaska to regulate GHGs under its PSD program and establish
appropriate emission thresholds for determining which new or modified
stationary sources become subject to Alaska's PSD permitting
requirements for GHG emissions. ADEC subsequently clarified in an e-
mail dated November 16, 2010, that its request is limited to updating
the incorporation by reference date of 40 CFR 52.21 in 18 AAC 50.040(h)
in order to incorporate the new definition of ``subject to regulation''
in 40 CFR 52.21(49) to clarify the meaning of the definition of
``regulated NSR pollutant'' in the Alaska SIP so as to make the Alaska
SIP consistent with Federal PSD requirements for the regulation of
GHGs.
Because this draft SIP revision is not yet State-effective, Alaska
requested that EPA ``parallel process'' the SIP revision. Under this
procedure, the EPA Regional Office works closely with the State while
developing new or revised regulations. Generally, the State submits a
copy of the proposed regulation or other revisions before final
promulgation by the State. EPA reviews this proposed State action and
prepares a notice of proposed rulemaking. EPA publishes this notice of
proposed rulemaking in the Federal Register and solicits public comment
in approximately the same time frame during which the State is
completing its rulemaking action.
In this case, the regulatory revisions submitted in Alaska's
October 25, 2010, proposed SIP revision have already gone through
public review and were adopted by the Commissioner of ADEC on September
27, 2010. On November 8, 2010, ADEC provided EPA with a revised draft
submittal following review by the Alaska Department of Law. On November
16, 2010, ADEC advised EPA that the revisions that were filed by the
Alaska Lieutenant Governor on November 9, 2010, will become effective
as a matter of State law on December 8, 2010, and will be submitted as
a final SIP revision before December 1, 2010. Therefore, EPA is
processing this proposed rulemaking prior to Alaska's submission of the
final SIP revision.
EPA is proposing to approve the update to 18 AAC 50.040(h) with
respect to the definition of ``subject to regulation'' as a revision to
the Alaska SIP if the final SIP revision relating to the PSD permitting
of GHGs submitted by Alaska to EPA is consistent with the proposed SIP
revision. Final approval of Alaska's SIP revision will make Alaska's
SIP for GHG-emitting sources consistent with Federal PSD requirements
for GHG emissions, including the GHG emission thresholds for PSD
applicability. If changes are made to the SIP revision after this
proposal, such changes will be acknowledged in EPA's final rulemaking
action and, if such changes are significant, may require a reproposal
and an additional public comment period.
II. What is the background for the action that EPA is proposing today?
On June 3, 2010 (effective August 2, 2010), EPA promulgated a final
rulemaking tailoring the applicability criteria that determine which
stationary sources and modification projects become subject to
permitting requirements for GHG emissions under the PSD and title V
permitting programs. See ``Prevention of Significant Deterioration and
title V Greenhouse Gas Tailoring Rule; Final Rule,'' (the Tailoring
Rule), 75 FR 31514 (June 3, 2010).\1\ In particular, by amending the
definition of ``subject to regulation,'' EPA established thresholds for
GHGs with a phase-in approach for PSD applicability and established the
first
[[Page 75660]]
two steps of the phase-in for the largest GHG-emitters. As EPA
explained in the Tailoring Rule, the threshold limitations are
necessary because without it, PSD would apply to all stationary sources
that emit or have the potential to emit more than 100 or 250 tons of
GHGs per year beginning on January 2, 2011. This is the date when EPA's
recently promulgated Light Duty Vehicle Rule takes effect,\2\ imposing
control requirements for the first time on GHGs. If this January 2,
2011, date were to pass without the Tailoring Rule being in effect, PSD
requirements would apply to GHG emissions at the 100/250 tons per year
applicability levels provided under a literal reading of the Clean Air
Act (CAA or the Act) as of that date. From that point forward, a source
owner proposing to construct any new major source that emits at or
higher than the applicability levels (and which therefore may be
referred to as a ``major'' source) or modify any existing major source
in a way that would increase GHG emissions would need to obtain a
permit under the PSD program that addresses these emissions before
construction or modification could begin. See 75 FR 31514.
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\1\ The Tailoring Rule also applies to the title V program,
which requires operating permits for existing sources. However,
today's action does not affect Alaska's title V program.
\2\ See ``Light-Duty Vehicle Greenhouse Gas Emission Standards
and Corporate Average Fuel Economy Standards; Final Rule,'' 75 FR
25324 (May 7, 2010).
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As explained in the Tailoring Rule, many State, local and Tribal
area programs will likely be able to immediately implement the approach
in the Tailoring Rule without rule or statutory changes by, for
example, interpreting the term ``subject to regulation'' that is part
of the applicability provisions for PSD permitting. EPA has requested
permitting authorities to confirm that they will follow this
implementation approach for their programs, and if they cannot, then
EPA has requested that they notify the Agency so that we can take
appropriate follow-up action to narrow Federal approval of their
programs before GHGs become subject to PSD permitting on January 2,
2011. Narrowing EPA's approval will ensure that for Federal purposes,
sources with GHG emissions that are less than the Tailoring Rule's
emission thresholds will not be obligated under Federal law to obtain
PSD permits during the gap between when GHG PSD requirements go into
effect on January 2, 2011 and when either (1) EPA approves a SIP
revision adopting EPA's tailoring approach, or (2) if a State opts to
regulate smaller GHG-emitting sources, the State demonstrates to EPA
that it has adequate resources to handle permitting for such sources.
EPA expects to finalize the narrowing action prior to the January 2,
2011 deadline with respect to those States for which EPA will not have
approved the Tailoring Rule thresholds in their SIPs by that time.
On August 2, 2010, Alaska provided a letter to EPA explaining that
its PSD rules only apply to pollutants ``subject to regulation'' at the
time of adoption in July 1, 2004, and that Alaska thus did not have
authority to issue PSD permits that address GHG emissions. By notice
dated September 2, 2010, EPA issued a proposed ``Action to Ensure
Authority to Issue Permits Under the Prevention of Significant
Deterioration Program to Sources of Greenhouse Gas Emissions: Finding
of Substantial Inadequacy and SIP Call, Proposed Rule,'' 75 FR 53892
(September 2, 2010) (GHG SIP Call). In that action, along with a
companion proposal published at the same time, EPA took steps to ensure
that in States that do not appear to have authority to issue PSD
permits to GHG-emitting sources at present, either the State or EPA
will have the authority to issue such permits by January 2, 2011. EPA
explained in the GHG SIP Call that, although for most States, either
the State or EPA is already authorized to issue PSD permits for GHG-
emitting sources as of that date, our preliminary information showed
that 13 States, including Alaska, have EPA-approved PSD programs that
do not appear to include GHG-emitting sources and therefore do not
appear to authorize these States to issue PSD permits to such sources.
Therefore, EPA proposed to find that these 13 States' SIPs are
substantially inadequate to comply with CAA requirements and,
accordingly, proposed to issue a SIP Call to require a SIP revision
that applies their SIP PSD programs to GHG-emitting sources.\3\
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\3\ As explained in the proposed GHG SIP Call (75 FR 53892,
53896), EPA intends to finalize its finding of substantial
inadequacy and the SIP call for the 13 listed States by December
1,2010. EPA requested that the States for which EPA is proposing a
SIP call identify the deadline--between 3 weeks and 12 months from
the date of signature of the final SIP Call--that they would accept
for submitting their corrective SIP revision.
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In a companion rulemaking issued on the same date, EPA proposed a
Federal Implementation Plan (FIP) that would give EPA authority to
apply EPA's PSD program to GHG-emitting sources in any State that is
unable to submit a corrective SIP revision by its deadline. See
``Action to Ensure Authority to Issue Permits Under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Federal Implementation Plan, Proposed Rule,'' 75 FR 53883
(September 2, 2010) (GHG FIP). Alaska was one of the States for which
EPA proposed a SIP Call and a FIP because, as discussed above, Alaska
advised EPA that it did not interpret its then current PSD regulations
as providing it with the authority to regulate GHGs.
Alaska's proposed SIP revision that is the subject of this
rulemaking, however, addresses this authority. Therefore, if the State
submits its final SIP revision to EPA prior to the final rulemaking for
the GHG SIP Call, EPA will not take final action on the GHG SIP Call
for Alaska. Additionally, Alaska would not be subject to the FIP if EPA
finalizes today's proposed approval of the Alaska's SIP revision.
III. What is EPA's analysis of Alaska's proposed SIP revision?
The State of Alaska is currently a SIP-approved State for the PSD
program, and has incorporated EPA's 2002 New Source Review (NSR) reform
revisions for PSD into its SIP. See 72 FR 45378 (August 14, 2007).
However, Alaska does not interpret its PSD rules that are currently in
the SIP, which generally incorporate the Federal rules by reference, to
be automatically updating to include newly designated regulated air
pollutants such as GHGs. As discussed above, in a letter provided to
EPA on August 2, 2010, Alaska notified EPA that the State did not then
have the authority to regulate GHGs under the PSD program and thus was
in the process of revising its regulations (the subject of this
proposed action) to provide this authority.
The proposed rules submitted by ADEC to EPA with the proposed SIP
revision updates its incorporation by reference of the Federal PSD
requirements at 40 CFR 51.166 and 40 CFR 52.21-40 CFR 52.22 (Prevention
of Significant Deterioration of Air Quality) to include all revisions
to these Federal requirements as of August 2, 2010, the effective date
of the Tailoring Rule. See 18 AAC 50.040(h). ADEC has requested that
EPA approve this update only with respect to the definition of
``subject to regulation'' in 40 CFR 52.21(b)(49) promulgated in the
Tailoring Rule (effective August 2, 2010), which in turn clarifies the
meaning of the State definition of ``regulated NSR pollutant.'' \4\ As
discussed below, ADEC intends to request that EPA approve
[[Page 75661]]
these rule revisions with respect to all other changes in a subsequent
and separate SIP revision request.
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\4\ 18 AAC 50.040(h)(4)(C)(i) states that the definition of
``regulated NSR pollutant'' in 40 CFR 52.21(b)(50) is not adopted
and that that term shall have the meaning assigned to it in 18 AAC
50.990. The SIP-approved version of 18 AAC 50.990(92) states that
``regulated NSR pollutant'' has the meaning given in 40 CFR
51.166(b)(49), which is the same definition as in 40 CFR
52.21(b)(50).
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As discussed above, unless EPA either approves the Alaska SIP
revision authorizing the PSD permitting of GHG emissions by January 2,
2010, or unless EPA promulgates a FIP to do so, such sources will be
unable to receive preconstruction permits and therefore may not be able
to construct or modify in the State of Alaska after that date. Alaska's
incorporation by reference of the new definition of ``subject to
regulation'' at 40 CFR 52.21(b)(49) is consistent with EPA's regulation
of GHG emissions under the Federal PSD program. Therefore, if the final
SIP submitted by ADEC to EPA is consistent with the proposed SIP
revision, EPA is proposing to approve this revision because Alaska's
regulation is consistent with the CAA PSD requirements and its
implementing regulations regarding GHGs.
IV. Proposed Action
Pursuant to section 110 of the CAA, EPA is proposing to approve the
State of Alaska's draft SIP revision that reflects changes to the
Federal PSD program as of August 2, 2010, relating to the permitting of
GHGs if the final SIP revision submitted by Alaska to EPA is consistent
with the proposed SIP revision. This proposed SIP revision provides
Alaska with the authority to regulate GHGs under its PSD program and
establishes appropriate emissions thresholds for determining PSD
applicability to new and modified GHG-emitting sources in accordance
with EPA's Tailoring Rule. EPA has made the preliminary determination
that this SIP revision is approvable because it is in accordance with
the CAA and EPA regulations regarding PSD permitting for GHGs.
Note that ADEC has made other changes to its rules for PSD
permitting and other air regulations that it has not submitted as part
of this draft SIP revision (subject to this action) and does not intend
to submit as part of its final SIP submission. However, ADEC does
intend to submit these other rules and regulations as a subsequent SIP
revision in the near future. Because of the need to approve as a SIP
revision the changes relating to the PSD permitting of GHGs by January
2, 2011 or as soon thereafter as possible to ensure the State has
adequate authority to issue PSD permits to subject sources emitting
GHGs, once the requirements go into effect as a matter of Federal law,
EPA believes it is appropriate to approve Alaska's revisions that
update the Alaska PSD program to address GHG emissions as a SIP
strengthening measure.
V. 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, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves the State's law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by the State's 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 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).
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
Alaska, 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, Incorporation by
reference, Intergovernmental relations, and Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 19, 2010.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2010-30479 Filed 12-3-10; 8:45 am]
BILLING CODE 6560-50-P
