Rescission of Preconstruction Permits Issued Under the Clean Air Act, 38640-38645 [2016-13303]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 81, Number 114 (Tuesday, June 14, 2016)]
[Proposed Rules]
[Pages 38640-38645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13303]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 49 and 52

[EPA-HQ-OAR-2015-0782; FRL-9947-31-OAR]
RIN 2060-AS56


Rescission of Preconstruction Permits Issued Under the Clean Air 
Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing to 
revise a limitation on the rescission of stationary source 
preconstruction permits that is contained in the federal New Source 
Review (NSR) regulations. This proposal would amend the EPA's federal 
Prevention of Significant Deterioration (PSD) regulations to remove a 
date restriction from the current permit rescission provision. Other 
than removing the date restriction, the proposed rule is not intended 
to alter the circumstances under which an NSR permit may be rescinded. 
This proposal would also add a corresponding permit rescission 
provision in the federal regulations that apply to major sources in 
nonattainment areas of Indian country. This rule also proposes to 
correct an outdated cross-reference to another part of the regulations.

DATES: Comments. Comments must be received on or before July 14, 2016.
    Public hearing. If anyone contacts us requesting a public hearing 
on or before June 20, 2016, we will hold a hearing. Additional 
information about the hearing, if requested, will be published in a 
subsequent Federal Register document.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2015-0782, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from 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 https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For general information on this 
proposed rule, please contact Ms. Jessica Montanez, Office of Air 
Quality Planning and Standards, U.S. Environmental Protection Agency, 
by phone at (919) 541-3407 or by email at montanez.jessica@epa.gov. To 
request a public hearing or information pertaining to a public hearing 
on this document, contact Ms. Pamela Long, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency, by phone 
at (919) 541-0641 or by email at long.pam@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How is this Federal Register document organized?

    The information presented in this document is organized as follows:

I. General Information
    A. How is this Federal Register document organized?
    B. Does this action apply to me?
    C. What should I consider as I prepare my comments for the EPA?
    D. How can I find information about a possible public hearing?
    E. Where can I obtain a copy of this document and other related 
information?
II. Overview of Action
III. Background
IV. Proposed Revisions
    A. Removal of Date Restriction
    B. Discretion of the Permitting Reviewing Authority
    C. Incorrect Cross Reference
    D. Rescission Authority for NA NSR Permits in Indian Country
    E. Rescission Authority for Other Air Permitting Programs
    F. Public Notice
V. Implementation
VI. Environmental Justice Considerations

[[Page 38641]]

VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
VIII. Statutory Authority

B. Does this action apply to me?

    Entities potentially affected by this proposed rule include permit 
reviewing authorities responsible for the permitting of stationary 
sources of air pollution. This includes the EPA Regions, and both EPA-
delegated air programs and EPA-approved air programs that are operated 
by state, local and tribal governments and that implement the federal 
NSR rules. Entities also potentially affected by this proposed rule 
include owners and operators of stationary sources that are subject to 
air pollution permitting under the Clean Air Act (CAA or Act).

C. What should I consider as I prepare my comments for the EPA?

    1. Submitting CBI. Do not submit this information to the EPA 
through https://www.regulations.gov or email. Clearly mark the specific 
information that you claim to be CBI. For CBI in a disk or CD-ROM that 
you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and 
then identify electronically within the disk or CD-ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 Code of Federal Regulations (CFR) part 2.
    2. Tips for preparing comments. When submitting comments, remember 
to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions. The proposed rule may ask you to 
respond to specific questions or organize comments by referencing a CFR 
part or section number.
     Explain why you agree or disagree, suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used to support your comment.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns 
wherever possible, and suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

D. How can I find information about a possible public hearing?

    To request a public hearing or information pertaining to a public 
hearing on this document, contact Ms. Pamela Long, Office of Air 
Quality Planning and Standards, U.S. Environmental Protection Agency, 
by phone at (919) 541-0641 or by email at long.pam@epa.gov.

E. Where can I obtain a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this Federal Register document will be posted at https://www.epa.gov/nsr/nsr-regulatory-actions. The docket contains, among other things, a 
comparison file that reflects how the proposed regulatory revisions 
compare to the current rules.

II. Overview of Action

    The EPA is proposing to remove a date restriction by revising the 
permit rescission provision contained in its federal PSD permitting 
regulations. 40 CFR 52.21(w). This current provision authorizes the 
owner or operator of a stationary source that holds a PSD permit based 
on rules in effect on or before July 30, 1987, to request a rescission 
of their permit or a part of their permit. 40 CFR 52.21(w)(2).
    Through this rulemaking action, we are proposing to remove the July 
30, 1987, date from the 40 CFR 52.21(w)(2) provision. Experience has 
shown that there can be circumstances where a permit based on rules in 
effect after July 30, 1987, may qualify for rescissions under the 
criteria in paragraph (w)(3) of the current regulations. In one recent 
instance, the EPA determined a need for rescission authority after the 
Supreme Court of the United States (Supreme Court) determined that PSD 
permits were not required for new sources or modifications to existing 
sources that only emit greenhouse gases (GHGs). However, because of the 
date restriction in the current rule, the EPA had to revise the 
regulation in order to enable permits to be rescinded, consistent with 
the Supreme Court's ruling. Thus, the EPA is proposing to remove the 
July 30, 1987, date restriction in order to eliminate the need for such 
actions in the future. We believe that removal of the date is justified 
to enable the rule to cover other cases where a rescission of a permit 
may be appropriate under the criteria in paragraph (w)(3) of the 
current permit rescission provision.
    Nevertheless, the EPA still intends to limit the rescission of 
permits to circumstances where the requirement for a source to meet the 
conditions of a major NSR permit is no longer present. Thus, we are not 
proposing to revise the criteria under which an owner or operator may 
qualify for rescission of an NSR permit. However, we are proposing to 
clarify that a rescission of a permit is not automatic; approval of a 
request for a rescission is contingent on an applicant's adequate 
demonstration that the permit is no longer needed and the permit 
reviewing authority's concurrence with the demonstration. Thus, a 
permit reviewing authority retains the discretion to deny a request for 
a permit rescission if it determines that the eligibility criteria are 
not satisfied.
    We are proposing to add a similar permit rescission provision under 
the major nonattainment NSR rules that apply in Indian country at 40 
CFR part 49. This part of the federal NSR program currently does not 
contain a provision addressing the rescission of major nonattainment 
NSR permits in Indian country. This rulemaking action also proposes to 
correct a cross-reference in the current rule provision.

III. Background

    The major NSR program contained in parts C and D of title I of the 
CAA is a preconstruction review and permitting program applicable to 
new major sources and major modifications at such sources. In areas 
meeting the National Ambient Air Quality Standards (NAAQS) 
(``attainment areas'') or for which there is insufficient information 
to determine whether the NAAQS are

[[Page 38642]]

met (``unclassifiable areas''), the NSR requirements under part C of 
title I of the Act apply. We call this program the Prevention of 
Significant Deterioration program. In areas not meeting the NAAQS 
(``nonattainment areas''), the preconstruction permitting program is 
required under part D of the CAA. We call this program the 
Nonattainment NSR (NA NSR) program. Collectively, we also commonly 
refer to these two programs as the major NSR program. These rules are 
contained in 40 CFR 51.165, 51.166, 52.21 and 52.24 and 40 CFR part 51, 
appendices S and W.\1\ The CAA also requires that State Implementation 
Plans (SIP) include measures to assure that achievement of the NAAQS is 
not impeded by construction of other sources that are not subject to 
the major NSR requirements. We call this program ``minor NSR.''
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    \1\ In addition, the major NA NSR rules that apply in Indian 
country can be found at 40 CFR part 49.
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    While the CAA establishes requirements for the permitting of 
construction of new major sources or modifications of such sources, it 
does not specify how long a permit is to remain in effect or whether 
there are circumstances under which an NSR permit may be invalidated or 
rescinded. See, e.g., CAA section 165. The EPA has interpreted this 
silence to mean that an NSR permit should remain in effect for as long 
as the new or modified source continues to operate. However, the 
absence of a statutory provision on the continuing viability of and 
need for a permit does not suggest that the EPA lacks the authority and 
discretion to rescind a permit under some circumstances, such as when a 
final court ruling clarifies the meaning of some part of the CAA. Over 
the years, the EPA has used this authority and discretion to rescind 
permits under limited circumstances.
    40 CFR 52.21(w) authorizes an owner or operator of a source to 
request, and the EPA Administrator \2\ to grant, a rescission of a PSD 
permit if the owner or operator shows that the PSD regulations do not 
apply.
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    \2\ The rescission regulation at 40 CFR 52.21(w) is intended to 
be a delegable authority. The use of the term ``Administrator'' in 
our regulations is not intended to impede delegation. For example, 
for federally-issued permits, since the EPA Regional offices issue 
the permits in their jurisdictions, rescission authority is 
typically delegated--usually to either an EPA Regional Administrator 
or Division Director.
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    The original intent of the 40 CFR 52.21(w) provision was to create 
a means by which a limited category of sources that received a permit 
under the EPA's 1978 PSD regulations could be relieved of the 
requirements of their permits, after the United States Court of Appeals 
for the District of Columbia Circuit (D.C. Circuit) determined that 
portions of those regulations were inconsistent with the CAA. The 
sources in question were ones that would no longer be considered 
``major'' under our 1980 amendments to the PSD regulations, which were 
promulgated in response to the D.C. Circuit Court ruling.\3\ The 
original paragraph (w) only applied to permits issued under the 
regulations in effect between June 19, 1978 (the date the first PSD 
regulations were published in the Federal Register), and August 7, 1980 
(the effective date of the PSD amendments that included the new 
paragraph (w)).
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    \3\ August 7, 1980, 45 FR 52676.
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    In 1987, the EPA revised 40 CFR 52.21(w) to change the effective 
date requirement to apply to permits that were issued based on rules in 
effect on or before July 30, 1987. See 52 FR 24672, 24689 (July 1, 
1987). The EPA made this revision in concert with its amendments to the 
NAAQS for particulate matter (PM), which, among other things, 
transitioned the PM pollution indicator from total suspended particles 
to PM10. This revision of 40 CFR 52.21(w) effectively 
enabled rescission authority to apply to sources and modifications that 
were no longer major using the new PM10 indicator. Thus, the 
July 30, 1987, date stipulation that remains in 40 CFR 52.21(w) is an 
artifact of the 1987 regulatory revisions to transition to the revised 
PM10 indicator.
    Following the changes made in 1987, 40 CFR 52.21(w) remained 
unchanged until almost three decades later when the EPA revised 40 CFR 
52.21(w), in response to a Supreme Court decision, to expressly allow 
rescission of permits granted for sources based solely on the emissions 
of GHGs.\4\ See May 7, 2015; 80 FR 26183. This 2015 regulatory action 
did not revise or remove the July 30, 1987, date, but was a targeted 
effort to expeditiously authorize the rescission of PSD permits that 
were required solely based on GHG emissions.
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    \4\ The Supreme Court determined 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) required to obtain a PSD 
permit. UARG v. EPA, 134 S. Ct. 2427 (2014). In accordance with the 
Supreme Court decision, on April 10, 2015, the D.C. Circuit issued 
an amended judgment vacating portions of the particular provisions 
of the EPA's regulations implementing the EPA's PSD and Title V GHG 
Tailoring Rule. On August 19, 2015, the EPA amended its PSD 
regulations to remove from the Code of Federal Regulations portions 
of those regulations that the D.C. Circuit specifically identified 
as vacated.
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    However, in the preamble to that 2015 rule, the EPA signaled its 
intent to undertake a subsequent rulemaking action to apply the permit 
rescission provision to permits issued after July 30, 1987, and to 
eliminate the need to conduct targeted rulemakings in the future. 80 FR 
26186.
    The current regulations require that the Administrator provide 
adequate public notice of the final permit rescission determination. 
Thus, the provision does not require that the EPA provide advance 
notice of the permit rescission determination. However, we believe that 
public notice and comment procedures--similar to those used when 
proposing a draft permit--may be appropriate in certain circumstances. 
This could occur when a permit rescission determination is not 
straightforward (e.g., possible differences in interpretation over the 
change in the law that is the basis for the rescission request) or when 
there is increased public interest in the facility requesting a permit 
rescission. In these cases, while prior notice of the permit rescission 
determination is not required, the permit reviewing authority has 
discretion to provide notice of the rescission and to solicit comment 
(e.g., by way of a public announcement or public hearing) before 
finalizing a permit rescission determination. Having this additional 
public input could be very important if the rescission is controversial 
in nature. This is consistent with the approach the EPA has recommended 
recently in guidance on permit extensions.\5\
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    \5\ Memorandum from Stephen D. Page, Director, Office of Air 
Quality Planning and Standards, Guidance on Extension of Prevention 
of Significant Deterioration (PSD) Permits under 40 CFR 52.21(r)(2) 
(January 31, 2014). https://www.epa.gov/sites/production/files/2015-07/documents/extend14.pdf.
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    Furthermore, the EPA interprets 40 CFR 124.15 of its regulations to 
apply to a number of PSD permit actions, including permit 
rescissions.\6\ Thus, a decision to rescind a PSD permit is a ``final 
permit decision'' under 40 CFR 124.15. As a result, under 40 CFR 
124.19, a decision to rescind a permit under 40 CFR 52.21(w) is subject 
to review by the EPA's Environmental Appeals Board. After this appeal 
procedure is exhausted, a permit rescission determination may, under 
CAA 307(b)(1), be subject to judicial review in the United States Court 
of Appeals for the appropriate circuit.
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    \6\ 40 CFR 124.15(a) uses the term ``terminate,'' which is 
synonymous with a rescission of a permit.
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IV. Proposed Revisions

    These proposed revisions are intended to provide greater 
flexibility and clarity for improved

[[Page 38643]]

implementation of the permit rescission provision. The specific 
proposed changes are explained in this section, and we are requesting 
comment on all aspects of this proposal.

A. Removal of Date Restriction

    In this action, the EPA proposes to remove the date restriction of 
July 30, 1987, from the current 40 CFR 52.21(w) provision. This 
approach is consistent with our recent rule to authorize rescission of 
specific types of permits issued after July 30, 1987, in response to a 
decision by the Supreme Court regarding GHGs. If the EPA finalizes this 
proposed revision, rescission authority would extend to PSD permits 
issued after this date when the applicant shows that the requirements 
of 40 CFR 52.21 ``would not apply to the source or modification.'' In 
addition, the specific language in paragraphs (w)(2) and (w)(3) that 
the EPA added in 2015 to accommodate the rescission of certain types of 
GHG PSD permits would no longer be required, so we are concurrently 
proposing in this action to delete the GHG permit rescission language 
adopted in the 2015 rulemaking.
    As explained in the ``Background'' section of this preamble, the 
creation of the original rescission provision was aimed at addressing a 
specific need with regard to responding to the D.C. Circuit Court 
decision in Alabama Power.\7\ In 1987, the EPA recognized another 
circumstance in which rescission of permits may be justified--the 
change of the PM indicator to PM10. In 2015, the EPA 
identified an additional need to extend the rescission authority beyond 
its original scope after the Supreme Court decision regarding GHGs. 
Thus, over the years, the EPA has periodically found a need to expand 
the rescission provision through a regulatory action beyond its 
original scope as new circumstances have arisen. These and other 
experiences since 1980 have shown that there is a periodic need to 
utilize PSD permit rescission authority. We would expect this pattern 
to continue in the event of additional court decisions that narrow the 
scope of sources required to obtain a PSD permit. Where a source 
obtained a PSD permit in reliance on the EPA regulations that a court 
subsequently determined to be unnecessary or inappropriate, the EPA 
would expect to conclude that 40 CFR 52.21 ``would not apply to the 
source or modification.'' Furthermore, the EPA recognizes there could 
be circumstances not previously considered by the EPA that may lead a 
source to request a rescission of their permit and a permit reviewing 
authority to grant the request.
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    \7\ Alabama Power Company v. Costle, 606 F.2d 1068 (D.C. Cir. 
1979), modified, 636 F.2d 323 (D.C. Cir. 1979).
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    The EPA is not proposing to change the criteria under which an 
owner or operator may qualify for rescission of an NSR permit. Requests 
for permit rescission are very case-specific and require an in-depth 
evaluation of the source, the rules in place at the time, and the court 
decisions or other events affecting the source before it can be shown 
that the requirements of 40 CFR 52.21 ``would not apply to the source 
or modification.''
    Thus, we are proposing to eliminate the date restriction so that 
the EPA--and other permitting authorities that implement 40 CFR 
52.21(w)--may in the future consider, on a case-by-case basis, whether 
a source that requests a permit rescission is eligible for rescission 
of its permit. The regulatory change we are proposing is limited in 
nature, and the EPA continues to believe that rescission is appropriate 
only in limited circumstances. This is because the EPA views the role 
of the NSR program to authorize the construction and initial operation 
of a source or a modification and, assuming the source was constructed 
as originally permitted, there should be very few cases in which the 
original authorization should be rescinded.

B. Discretion of the Permitting Reviewing Authority

    While we are proposing to retain the criteria under which a 
rescission is authorized, we are also proposing to clarify that the 
rescission of a permit requires an exercise of discretion by the permit 
reviewing authority. In this action, the EPA proposes to revise 40 CFR 
51.21(w)(3) to make it clear that the provision does not create a 
mandatory duty on the Administrator to grant a rescission request.
    The 1980 preamble speaks of the EPA needing ``adequate information 
with which to make a sound decision'' to rescind a permit. It also 
states that it ``will have the expertise and objectivity necessary to 
check adequately whether the permittee has applied the intricate 
applicability rules correctly.'' August 7, 1980; 45 FR 52682. Thus, the 
responsible authority at the permitting agency has always had the 
authority to grant or deny a rescission request based on an analysis of 
the request for a permit rescission and a determination of whether it 
is appropriate to grant or deny the request to rescind the permit. The 
EPA believes that it is appropriate to view the existing 40 CFR 
52.21(w)(3) provision as a whole, including the last phrase ``. . . if 
the application shows that this section would not apply to the source 
or modification.'' We believe that the second phrase conditions the 
first phrase (``The Administrator shall grant an application for 
rescission'') on the fact that an adequate demonstration must be made 
by the permit applicant.
    Thus, the EPA is proposing to replace the word ``shall'' with the 
word ``may'' in this provision, without making any other revision to 40 
CFR 52.21(w)(3). This revision is intended to make clear that the 
Administrator may deny a permit rescission request if he or she does 
not concur with the analysis by the permit applicant that 40 CFR 52.21 
``would not apply to the source or modification.'' The EPA does not 
believe this changes the meaning or intent of the existing provision, 
but rather clarifies the approvability of the request by the 
Administrator.

C. Incorrect Cross Reference

    We are proposing to correct the first paragraph of (w), which has 
an incorrect cross reference. Paragraph (w)(1) currently references 40 
CFR 52.21 paragraph (s), but 40 CFR 52.21(s) pertains to environmental 
impact statements and does not address the expiration of a permit.
    We are therefore proposing to revise the reference in paragraph 
(w)(1) to refer to paragraph (r), which addresses permit expiration. 40 
CFR 52.21(r)(2)

D. Rescission Authority for NA NSR Permits in Indian Country

    This action also proposes to add a provision to 40 CFR 49.172 to 
provide rescission authority for major NA NSR permits in Indian 
country. The EPA proposes that the provision added to 40 CFR 49.172 
would be similar to the provision at 40 CFR 52.21(w) and would reflect 
the public notice requirements included in that rule. The EPA believes 
it is appropriate to allow rescission of NA NSR permits in Indian 
country in limited, case-specific circumstances for the same reasons it 
is appropriate to allow rescission of PSD permits in narrow 
circumstances.
    Creating a rescission provision in 40 CFR part 49 for major NA NSR 
permits in Indian country would ensure that all federal programs for 
major source permitting have rescission authority. PSD permits issued 
to sources in Indian country are federal permits and consequently 
subject to 40 CFR 52.21, so they would be subject to the same revisions 
to 40 CFR 52.21 that are being proposed in this action.

[[Page 38644]]

E. Rescission Authority for Other Air Permitting Programs

    In the case of sources in the Outer Continental Shelf (OCS), the 
EPA's OCS air regulations at 40 CFR 55 establish the applicable 
requirements, which include federal air pollution preconstruction 
permit requirements. 40 CFR part 55 refers to rescinding a 
preconstruction permit issued to an OCS source and incorporates by 
reference 40 CFR 52.21. Thus, any regulatory revisions to 40 CFR 
52.21(w) would automatically apply to applicable permit requirements 
incorporated in part 55. See 40 CFR 55.6(b)(5) and 55.13(d). As a 
result, the EPA does not see a need to revise the Part 55 permitting 
regulations.
    While the EPA's regulations for SIP-approved programs in 40 CFR 
51.165 and 51.166 do not include provisions for permit rescissions, we 
have previously stated that we would approve such provisions if states 
were to adopt them.\8\ In addition, this rule is not intended to alter 
minor source construction permit requirements that may apply in the 
place of major NSR permit conditions that are no longer applicable to a 
source modification.
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    \8\ See August 7, 1980; 45 FR 52686 and 52688.
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    Consequently, we are proposing that the rules on rescinding 
preconstruction permits would only reside in the federal major NSR 
program rules at 40 CFR parts 49 and 52 (and, by extension, part 55 as 
noted previously). The EPA has previously explained that other permit 
reviewing authorities are free to adopt our rescission rule provisions 
or propose their own and request approval by the EPA.

F. Public Notice

    We note that a forthcoming EPA rule has proposed to amend the 
second sentence of paragraph (w)(4) of 40 CFR 52.21 to remove the 
mandatory newspaper notice requirement and to require electronic 
noticing of rescission determinations. See December 29, 2015; 80 FR 
81234. We are not taking comment on these separately proposed revisions 
to paragraph (w)(4) of 40 CFR 52.21 in this rule proposal, and we 
direct the reader to that separate rulemaking for further information 
with regard to the noticing of permit rescissions. In this action, the 
EPA is not proposing to revise 40 CFR 52.21(w)(4) in the permit 
rescission provision.

V. Implementation

    Upon promulgating this action, the rule would become effective 
within 30 days for permit reviewing authorities that implement the 
federal program rules at 40 CFR parts 49 and 52. This includes the EPA 
Regions and other permit reviewing authorities that are delegated 
authority by the EPA to issue PSD permits on behalf of the EPA (via a 
delegation agreement) and permit reviewing authorities that have their 
own PSD rules approved by the EPA in a SIP and the SIP incorporates by 
reference 40 CFR 52.21(w) and automatically updates when the federal 
rules are amended. Since this action is not amending 40 CFR part 51, 
there are no implementation requirements for permit reviewing 
authorities that implement the part 51 regulations through an approved 
SIP.

VI. Environmental Justice Considerations

    We do not believe that these proposed revisions and additions to 
the rescission of federal major NSR permits would have any effect on 
environmental justice communities.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control numbers 2060-0003 for the PSD and NA NSR permit programs. We 
believe that the burden associated with rescinding federal NSR permits 
is already accounted for under the approved information collection 
requests.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. Entities 
potentially affected directly by this proposal include state, local and 
tribal governments, and none of these governments would qualify as a 
small entity. Other types of small entities are not directly subject to 
the requirements of this action.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded federal mandate as 
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or 
uniquely affect small governments. The action imposes no enforceable 
duty on any state, local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. Specifically, these proposed revisions do not 
affect the relationship or distribution of power and responsibilities 
between the federal government and Indian tribes. Thus, Executive Order 
13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed 
by this

[[Page 38645]]

action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations because it does not affect the level of 
protection provided to human health or the environment.

VIII. Statutory Authority

    The statutory authority for this action is provided by 42 U.S.C. 
7401, et seq.

List of Subjects

40 CFR Part 49

    Environmental protection, Administrative practice and procedure, 
Air pollution control

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference.

    Dated: May 27, 2016.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT

0
1. The authority citation for part 49 continues to read as follows:

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

Subpart C--General Federal Implementation Plan Provisions

0
2. Section 49.172 is amended by adding paragraph (f) to read as 
follows:


Sec.  49.172  Final permit issuance and administrative and judicial 
review.

* * * * *
    (f) Can my permit be rescinded?
    (1) Any permit issued under this section or a prior version of this 
section shall remain in effect until it is rescinded under this 
paragraph.
    (2) An owner or operator of a stationary source or modification who 
holds a permit issued under this section for the construction of a new 
source or modification that meets the requirement in paragraph (f)(3) 
of this section may request that the reviewing authority rescind the 
permit or a particular portion of the permit.
    (3) The reviewing authority may grant an application for rescission 
if the application shows that this section would not apply to the 
source or modification.
    (4) If the reviewing authority rescinds a permit under this 
paragraph, the public shall be given adequate notice of the rescission 
determination in accordance with one or more of the following methods:
    (i) The reviewing authority may mail or email a copy of the notice 
to persons on a mailing list developed by the reviewing authority 
consisting of those persons who have requested to be placed on such a 
mailing list.
    (ii) The reviewing authority may post the notice on its Web site.
    (iii) The reviewing authority may publish the notice in a newspaper 
of general circulation in the area affected by the source. Where 
possible, the notice may also be published in a Tribal newspaper or 
newsletter.
    (iv) The reviewing authority may provide copies of the notice for 
posting at one or more locations in the area affected by the source, 
such as Post Offices, trading posts, libraries, Tribal environmental 
offices, community centers or other gathering places in the community.
    (v) The reviewing authority may employ other means of notification 
as appropriate.

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart A--General Provisions

0
4. Section 52.21 is amended by revising paragraphs (w)(1) through (3) 
to read as follows:


Sec.  52.21  Prevention of significant deterioration of air quality.

* * * * *
    (w) * * *
    (1) Any permit issued under this section or a prior version of this 
section shall remain in effect, unless and until it expires under 
paragraph (r) of this section or is rescinded under this paragraph.
    (2) An owner or operator of a stationary source or modification who 
holds a permit issued under this section for the construction of a new 
source or modification that meets the requirement in Sec.  52.21 
paragraph (w)(3) may request that the Administrator rescind the permit 
or a particular portion of the permit.
    (3) The Administrator may grant an application for rescission if 
the application shows that this section would not apply to the source 
or modification.
* * * * *
[FR Doc. 2016-13303 Filed 6-13-16; 8:45 am]
BILLING CODE 6560-50-P