Rescission of Preconstruction Permits Issued Under the Clean Air Act, 78043-78048 [2016-26593]

Download as PDF Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations Dated: October 28, 2016. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. 2016–26684 Filed 11–4–16; 8:45 am] BILLING CODE 3510–16–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 49 and 52 [EPA–HQ–OAR–2015–0782; FRL–9954–88– OAR] RIN 2060–AS56 Rescission of Preconstruction Permits Issued Under the Clean Air Act ehiers on DSK5VPTVN1PROD with RULES 11:32 Nov 04, 2016 Jkt 241001 Regulated entities. The Administrator determined that this action is subject to the provisions of Clean Air Act (CAA or Act) section 307(d). CAA section 307(d)(1)(V) (the provisions of CAA section 307(d) apply to ‘‘such other actions as the Administrator may determine’’). These are amendments to existing regulations and could affect any facility that is eligible for a PSD permit rescission for any such permit issued by the EPA, reviewing authorities that implement the EPA’s regulations through delegation or reviewing authorities that incorporate the federal PSD regulations by reference. A. Does this action apply to me? The Environmental Protection Agency (EPA) is promulgating amendments to the EPA’s federal Prevention of Significant Deterioration (PSD) regulations to remove a date restriction from the Permit Rescission provision. Other than removing the date restriction, this final rule does not alter the criteria under which a new source review (NSR) permit may be rescinded. This final rule also clarifies that a rescission of a permit is not automatic and corrects an outdated cross-reference to another part of the PSD regulations. The EPA is also adding a corresponding Permit Rescission provision in the federal regulations that apply to major sources in nonattainment areas of Indian country. DATES: This final rule is effective on December 7, 2016. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2015–0782. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically in http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: For further general information on this rulemaking, contact Ms. Jessica Montanez, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency (C504–03), Research Triangle Park, NC VerDate Sep<11>2014 SUPPLEMENTARY INFORMATION: I. General Information Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: SUMMARY: 27711, by phone at (919) 54l-3407, or by email at montanez.jessica@epa.gov. Entities potentially affected by this final rulemaking include reviewing authorities responsible for the permitting of stationary sources of air pollution, including the following: The EPA Regional offices; air agencies that have delegated authority to implement the EPA regulations; and air agencies that administer EPA-approved air programs that incorporate the federal NSR rules by reference. Entities also potentially affected by this final rulemaking include owners and operators of stationary sources subject to NSR permitting programs under the CAA that are administered by the entities described previously. B. Where can I get a copy of this document and other related information? In addition to being available in the docket, an electronic copy of this notice will be posted at: https://www.epa.gov/ nsr/nsr-regulatory-actions. Upon publication in the Federal Register, only the published version may be considered the final official version of the notice, and will govern in the case of any discrepancies between the Federal Register published version and any other version. C. How is this document organized? The information presented in this document is organized as follows: I. General Information A. Does this action apply to me? B. Where can I get a copy of this document and other related information? C. How is this document organized? II. Background for Final Rulemaking III. Overview of the Final Revisions A. What are the final revisions to the 40 CFR part 52 Permit Rescission provision? PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 78043 B. What are the final revisions to the 40 CFR part 49 Indian country nonattainment NSR provisions? C. What is the basis for the EPA’s final revisions? IV. Environmental Justice Considerations V. 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 Risks 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 (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) L. Judicial Review VI. Statutory Authority II. Background for Final Rulemaking On June 14, 2016, the EPA proposed revisions to the Permit Rescission provision in the EPA’s federal PSD regulations at 40 CFR 52.21(w). The proposed revisions remove a date restriction from this provision, clarify that a rescission of a permit is contingent on the reviewing authority’s concurrence with a rescission applicant’s demonstration that the PSD permit provisions ‘‘would not apply to the source or modification,’’ and correct an outdated cross-reference to another part of the PSD regulations. The EPA also proposed to add a corresponding Permit Rescission provision in the federal regulations that apply to major sources in nonattainment areas of Indian country. The preamble to the proposal provided an overview of the NSR permitting program and a brief history of the previous revisions to the Permit Rescission provision regulations. The preamble also explained the EPA’s basis for the proposed changes and rationale. Because the EPA is finalizing this rule as it was proposed, this final rulemaking notice does not repeat that discussion. The 30-day public comment period for the proposed rule closed on July 14, 2016. In Section III of this document, we summarize and respond to the comments received and explain the E:\FR\FM\07NOR1.SGM 07NOR1 78044 Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations basis for the regulatory text revisions made by this final rule. III. Overview of the Final Revisions A. What are the final revisions to the 40 CFR part 52 Permit Rescission provision? In this final rule, we are making three specific revisions to the Permit Rescission provision in the PSD regulations at 40 CFR part 52. First, we are revising 40 CFR 52.21(w)(2) to remove the July 30, 1987, date restriction. Second, we are revising 40 CFR 52.21(w)(3) to change the word ‘‘shall’’ to ‘‘may’’ to make clear that this provision does not create a mandatory duty on the Administrator to grant a rescission request. Lastly, we are revising 40 CFR 52.21(w)(1) to appropriately cross reference paragraph (r) and not paragraph (s) of our PSD regulations. The PSD Permit Rescission provision is applicable for the EPA Regions and other reviewing authorities that are delegated authority by the EPA to issue PSD permits on behalf of the EPA (via a delegation agreement). The provision also applies to reviewing authorities that have their own PSD rules approved by the EPA in a State Implementation Plan (SIP) where the SIP incorporates 40 CFR 52.21(w) by reference. B. What are the final revisions to the 40 CFR part 49 Indian country nonattainment NSR provisions? This final rule adds a provision to 40 CFR 49.172(f) to provide authority to rescind nonattainment new source review (NA NSR) permits in Indian country. This provision mirrors the provision being finalized at 40 CFR 52.21(w) by providing the EPA and delegated permit reviewing authorities the authority to rescind NA NSR permits where the application for rescission adequately shows that the NA NSR rules for Indian country at 40 CFR 49.166 through 49.173 would not apply to the source or modification. This provision also includes methods for adequate notice of the rescission determination in accordance with the public noticing requirements for NA NSR permits in Indian country. C. What is the basis for the EPA’s final revisions? ehiers on DSK5VPTVN1PROD with RULES 1. Removal of the July 30, 1987, Date Restriction in 40 CFR 52.21(w)(2) a. Summary of the EPA’s Basis for This Action As stated in the proposal, experience has shown that there can be circumstances where the EPA believes rescission of a permit issued under the VerDate Sep<11>2014 11:32 Nov 04, 2016 Jkt 241001 PSD rules in effect after July 30, 1987, may be appropriate under the criteria in paragraph (w)(3) of the Permit Rescission provision. In one recent instance, the EPA determined a need for rescission authority after the Supreme Court of the United States (Supreme Court) determined that the EPA may not treat greenhouse gases (GHGs) as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427 (2014) (‘‘UARG’’). However, because of the date restriction in the former PSD Permit Rescission provision, the EPA had to revise this Permit Rescission regulation to expressly allow rescission of permits granted for sources based solely on the emissions of GHGs. May 7, 2015; 80 FR 26183. The EPA believes removal of the date restriction is appropriate to improve implementation efficiency and eliminate the need to conduct similar targeted rulemakings in the future. finalizing the removal of the July 30, 1987, date to obviate the need to make further changes to this regulation in the future. b. Summary of Comments Two commenters generally supported the removal of the date restriction. One commenter believes that the right for a source to request a permit rescission should be ongoing. The other commenter noted that the amendment is intended to allow a CAA permit holder the ability to request that the EPA rescind permits that would no longer be required under the current regulations. Nevertheless, another commenter questioned why the revision was necessary since (1) the EPA already amended the Permit Rescission provision to accommodate rescission of permits affected by the UARG decision and (2) the EPA has made only two other minor adjustments to rescind certain permits over the past 36 years. One commenter recommended that we retain the existing language in 40 CFR 52.21(w)(3) as ‘‘shall’’ instead of ‘‘may.’’ The commenter believed that the existing language in the regulation provides the Administrator discretion to grant a rescission request since the ‘‘if’’ in that regulatory text shows that a source has the burden of proof to establish that a source is eligible for the permit rescission and there is no guaranteed EPA approval. c. EPA Response We agree with those commenters that support removal of the July 30, 1987, date restriction from the PSD Permit Rescission provision. As we discussed in the proposed rule preamble, the EPA has periodically found a need to amend this provision. Although the instances under which PSD permit rescissions are appropriate are limited and the EPA has made a limited number of amendments to 40 CFR 52.21(w) since it was initially adopted, the purpose for these rule amendments is forward-looking. We expect future instances under which rescission of PSD permits issued after July 30, 1987, would be appropriate under the criteria in paragraph (w)(3) of the current Permit Rescission provision. Therefore, in this final rule the EPA is PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 2. Revision to 40 CFR 52.21(w)(3) To Clarify That the EPA Administrator Does Not Have a Mandatory Duty To Grant a Rescission Request a. Summary of the EPA’s Basis The EPA proposed to revise 40 CFR 52.21(w)(3) to make it clear that the provision does not create a mandatory duty on the Administrator to grant a rescission request. Specifically, the EPA proposed to replace the word ‘‘shall’’ with the word ‘‘may’’ in this provision 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.’’ b. Summary of Comments c. EPA Response The EPA continues to believe that it is appropriate to change the word ‘‘shall’’ to ‘‘may’’ in this provision to clarify 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 word ‘‘shall’’ is commonly used in statutes and regulations to describe a mandatory requirement. Even if other words in 40 CFR 52.21(w)(3) convey that a reviewing authority has discretion to deny a request, the EPA believes the regulation should be clear. We believe it is clearer to use discretionary language that conveys the meaning more directly so one does not have to rely on context to determine the meaning. As stated in the proposal, the EPA does not believe this revision changes the meaning or intent of the existing provision, but rather clarifies the discretion held by the Administrator. Thus, the EPA is finalizing this revision in this final rule. E:\FR\FM\07NOR1.SGM 07NOR1 Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations 3. Corrected Cross-Reference in 40 CFR 52.21(w)(1) a. Summary of the EPA’s Basis We proposed to correct 40 CFR 52.21(w)(1) because it currently references 40 CFR 52.21(s), which pertains to environmental impact statements. 40 CFR 52.21(w)(1) pertains to permit expiration and rescission, so the correct reference should be 40 CFR 52.21(r), which pertains to permit expiration in our federal PSD regulations. b. Summary of Comments and Final EPA Action The EPA received no comments on this proposed correction and is finalizing this correction as proposed. We believe 40 CFR 52.21(r) is the correct reference for 40 CFR 52.21(w)(1). 4. Addition of Permit Rescission Authority to the Nonattainment NSR Regulations for Indian Country a. Summary of the EPA’s Basis We also proposed to add a provision in 40 CFR 49.172(f) to provide rescission authority for major NA NSR permits in Indian country. This new regulatory text includes public notice requirements consistent with the noticing requirements applicable to major NA NSR permits in Indian country. 40 CFR 49.171. The EPA has determined 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 Permit 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 permit rescission authority. b. Summary of Comments and Final EPA Action The EPA received no comments on this proposed provision. The EPA is finalizing the addition of permit rescission authority for major NA NSR permits in Indian country as proposed. 5. Other Issues Raised in Comments ehiers on DSK5VPTVN1PROD with RULES a. Establishing Specific Criteria for Granting or Denying a Permit Rescission Request i. Summary of Comments Various commenters requested that the EPA establish specific criteria under which the EPA would grant or deny a permit rescission request. Commenters noted that without such criteria, implementation of the Permit Rescission VerDate Sep<11>2014 11:32 Nov 04, 2016 Jkt 241001 provision may be inconsistent between reviewing authorities with EPAapproved SIPs incorporating 40 CFR 52.21(w) and reviewing authorities that, for example, implement the federal PSD rules through delegation. One commenter stated that the EPA should withdraw its proposal and repropose the amendment to the PSD Permit Rescission provision and the addition of this provision to the major NA NSR program in Indian country with specific criteria for when a permittee would be eligible for rescission Another commenter argued that in the preamble and through other discussions between the EPA and the National Association of Clean Air Agencies members, the EPA staff have indicated that our intent is to limit permit rescissions to cases in which court decisions have changed the PSD rules or situations in which the PSD rules have changed and gone through all comment periods and reconsiderations. The commenter added that the proposed rule language does not state this. ii. EPA Response As stated in the proposal, the EPA believes there are a limited number of circumstances where a permit rescission is justified and that permit rescission requests are very case-specific. Review of a rescission request requires an indepth 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 determined that the requirements of 40 CFR 52.21 ‘‘would not apply to the source or modification.’’ 40 CFR 52.21(w)(3). The principal aim of this targeted rulemaking action is to remove an unnecessary impediment to rescissions of permits issued after the date specified in the existing version of 40 CFR 52.21(w) and therefore avoid the need for future revisions to 40 CFR 52.21(w). Although the EPA generally believes permit rescissions are warranted in a limited category of circumstances, specifically defining that category of circumstances would be contrary to the goals of this rule to provide flexibility going forward to address circumstances that may not have been previously anticipated or experienced. Therefore, we do not believe it is appropriate to develop specific a priori criteria for when a permit rescission would be granted or denied, nor do we agree with the commenter that argued that permit rescissions are limited only to cases in which court decisions have changed the PSD rules or situations in which the PSD rules have changed and gone through all comment periods and PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 78045 reconsiderations. Thus, the EPA is not including specific criteria for PSD permit rescissions and NA NSR permit rescissions in Indian country in this final rule. b. Clarifying Whether the EPA Would Grant Permit Rescission Requests Under Specific Circumstances i. Summary of Comments A few commenters provided specific examples of circumstances where they believe PSD permit rescissions or rescission of PSD related terms and conditions in other types of air permits could qualify for permit rescission. These circumstances include: 1. Requesting PSD permit rescissions when situations such as energy efficiency improvements and changes in operations cause a source to no longer be a major PSD stationary source. 2. Allowing a permit rescission when a pollutant is no longer regulated under the PSD program because the EPA established a CAA section 112 emission limitation, as long as existing limitations in the PSD permits are less restrictive than the applicable section 112 limitations and no increase in emission of another NSR regulated pollutant would be caused by the rescission. 3. Allowing PSD permits to be rescinded after a source takes limits at a future date to restrict emissions below the major source thresholds. One commenter also stated that the EPA should allow a source to request removal of related obligations including synthetic minor PSD permit limits or no longer applicable or obsolete PSD conditions in its federal or PSDapproved state or local construction permit(s) and/or title V operating permits. ii. EPA Response The EPA’s longstanding policy has been to evaluate permit rescission requests on a case-by-case basis since there are multiple factors that need to be considered when evaluating whether a source is eligible for a PSD permit rescission. As we stated previously, PSD permit rescissions 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 determined that the requirements of 40 CFR 52.21 ‘‘would not apply to the source or modification.’’ 40 CFR 52.21(w)(3). As such, the EPA cannot say a priori whether the circumstances raised by the commenters would always be eligible or not for permit rescission. In addition, based on past experience, the EPA E:\FR\FM\07NOR1.SGM 07NOR1 78046 Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations believes that it would not be typical for major sources to seek PSD permit rescissions. Furthermore, the scope of this rule is limited to PSD and NA NSR permitting and does not address the revision or rescission of permits that are not major NSR permits. Therefore, whether to allow a source to request removal of related obligations in non-major NSR permits, such as synthetic minor permits or title V operating permits, is outside the scope of this rulemaking. c. Specifying That PSD Permits Issued Before the Promulgation of the 2007 Final Ethanol Rule Can Be Rescinded Under the Revised Permit Rescission Provision ehiers on DSK5VPTVN1PROD with RULES i. Summary of Comments A couple of commenters asked the EPA to clarify that the revised PSD Permit Rescission provision would apply to PSD permits for fuel ethanol plants that were issued before July 2, 2007, specifically fuel ethanol plants that are no longer considered ‘‘major’’ under the revised major source applicability threshold for ‘‘chemical processing plants.’’ According to one of these commenters, the EPA acknowledged in the Ethanol Rule that PSD permits issued under the 100 tons per year (tpy) major source threshold for sources that would not trigger the revised 250 tpy threshold would be eligible to take advantage of the PSD Permit Rescission provision. 72 FR 24060, 24071. In addition, this same commenter claims that the situation presented by the Ethanol rule is analogous to the situations described in the preamble where the EPA previously revised the Permit Rescission provision to respond to the United States District of Columbia Circuit (D.C. Circuit) Court decision in Alabama Power and when the EPA transitioned from the Total Suspended Particulates to the Particulate Matter 10 micrometers in diameter or less indicator for the Particulate Matter National Ambient Air Quality Standard. Finally, the commenter claims that the equal protection clause, found in 14th Amendment of the United States Constitution and Article I, Section I of the Wisconsin State Constitution, supports rescission of pre-2007 PSD permits issued for fuel ethanol facilities. According to the commenter, treating ethanol facilities built prior to the adoption of the Ethanol Rule (‘‘Pre2007) and those built after the adoption of the Ethanol Rule differently is a disparity between two similarly situated classes distinguished only by year. VerDate Sep<11>2014 11:32 Nov 04, 2016 Jkt 241001 ii. EPA Response For the reasons stated in Sections III.C.5.a and III.C.5.b of this rule, we do not believe it is appropriate in this rule to address specific circumstances when a permit rescission may be granted or denied. In addition and as one commenter argues, the EPA did not acknowledge in the Ethanol Rule that PSD permits issued under the 100 tpy major source threshold for sources that would not trigger the revised 250 tpy threshold would be eligible to take advantage of the PSD Permit Rescission provision discussed in this rule. Historically, corn milling facilities that produced ethanol only for fuel use were considered by the EPA to be part of the ‘‘chemical process plants’’ category while facilities that produced ethanol only for human consumption were not considered by the EPA to be in that category. Under the PSD definition of major stationary source, ‘‘chemical process plants’’ is one of the source categories listed in 40 CFR 52.21(b)(1)(i) for which a source with a potential to emit a regulated NSR pollutant 1 in an amount equal to or higher than 100 tpy is subject to PSD permitting. All other non-listed source categories are subject to permitting if the source has the potential to emit a regulated NSR pollutant in an amount equal to or higher than 250 tpy. On May 1, 2007, the EPA modified the definition of the ‘‘chemical process plants’’ category of sources by removing corn milling facilities that produce ethanol only for fuel use from this definition. This change established the same 250 tpy major source applicability threshold for ethanol producing facilities regardless of whether a source produces ethanol for human consumption, for fuel, or for an industrial purpose. On July 2, 2007, the EPA received a petition for reconsideration pursuant to section 307(d)(7)(B) of the CAA, which the EPA denied in its entirety on March 27, 2008.2 On March 2, 2009, the EPA received a second petition for reconsideration, and we are currently in the process of considering that petition. Furthermore, this rule and the EPA’s denial of the first petition for reconsideration have been challenged in the D.C. Circuit. That litigation is currently being held in abeyance pending the outcome of the second petition for reconsideration. Since this second petition for reconsideration is currently under 1 As defined in 40 CFR 52.21(b)(50). of the EPA’s denial of the petition for reconsideration can be found at: https:// www.epa.gov/sites/production/files/2015-12/ documents/20080327letter.pdf. 2 Details PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 evaluation by the EPA, we believe it is premature to say in this rule whether pre-2007 fuel ethanol PSD permits would meet the regulatory criteria for a permit rescission under 40 CFR 52.21(w)(3). d. Comments on the Scope of the Proposed Revisions to the Permit Rescission Provision i. Summary of Comments One commenter would like the EPA to confirm that the amendment does not allow either the EPA or other reviewing authorities to use the Permit Rescission provision to unilaterally rescind or suspend a duly issued CAA NSR permit without the request of the permittee. Specifically, the commenter would like the EPA to clarify that officials do not intend for the proposed amendment to authorize any permit reviewing authority to: (1) Use this provision to either require updates of state SIPs, or rescind existing SIPs or disapprove future updates of SIPs (i.e., there is no obligation based on this rule change for states to modify SIPs); (2) Use the proposed amendment to rescind any permit without a written request from the owner/operator of the source; (3) Use the proposed amendment to trigger any changes to existing permitted emission limits (e.g., Potential to Emit, Plantwide Applicability Limits, applicable New Source Performance Standards, or unit-specific permit limits); or (4) Use the proposed amendment provision in any way that would alter the calculation (for an affected source) of significant emissions increase or net significant emission increase. ii. EPA Response The amended regulatory text in the Permit Rescission provision does not allow either the EPA or any other reviewing authorities to unilaterally rescind or suspend a duly issued CAA NSR permit without the request of the permittee. These provisions also do not alter other CAA requirements, such as state SIP provisions on topics other than NSR permitting. As discussed in the next section, the revisions also should not affect NSR permitting requirements in approved SIPs unless those SIPs incorporate § 52.21(w) by reference. The Permit Rescission provision in 40 CFR 49.172(f) and 40 CFR 51.21(w) only applies for the rescission of PSD permits under the federal PSD permitting regulations and NA NSR permits in Indian country, respectively, upon request for rescission application of a permittee when the Administrator E:\FR\FM\07NOR1.SGM 07NOR1 Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations deems such rescission is consistent with the regulatory terms. e. Comments on State Requirements for PSD Permit Rescissions i. Summary of Comments One commenter would like the EPA to clarify if this final action applies to states with EPA-approved SIPs. A different commenter argued that the EPA should allow states with EPAapproved SIP programs to use existing EPA-approved permitting procedures to rescind PSD permits and not require states with EPA-approved SIP programs to develop new rules that mirror 40 CFR 51.21(w)(2). ehiers on DSK5VPTVN1PROD with RULES ii. EPA’s Response As we stated in the proposal, this final action does not apply to states with EPA-approved SIPs unless they incorporate 40 CFR 52.21(w) by reference. We did not propose amendments to 40 CFR part 51 to revise the permitting provisions applicable to state and local programs. Therefore, these revisions to the PSD Permit Rescission provision do not apply to SIP-approved programs unless they incorporate the federal PSD Permit Rescission provision by reference. States will not be required to make any changes to their SIP-approved programs as a result of this rule. IV. Environmental Justice Considerations The revisions being finalized in this rule improve implementation efficiency for the Permit Rescission provision by eliminating the date restriction, correcting an outdated cross-reference and clarifying that a rescission of a permit is not automatic (the Administrator may grant a PSD permit rescission only if the application shows that the PSD rules would not apply to the source or modification). In addition, we are adding a provision in 40 CFR 49.172(f) to provide rescission authority for major NA NSR permits in Indian country for the same reasons it is appropriate to allow rescission of PSD permits and to ensure that all federal programs for major source permitting have permit rescission authority. Reviews of permit rescission requests after the finalization of this rule will continue to 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 determined that the requirements of 40 CFR 49.166 through 49.173 for the NA NSR program in Indian country or 40 CFR 52.21 for the PSD program ‘‘would not apply to the source or modification.’’ Thus, we VerDate Sep<11>2014 11:32 Nov 04, 2016 Jkt 241001 do not believe that these revisions and additions to the rescission of federal major NSR permits will have any effect on environmental justice communities. V. 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 PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 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 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 78047 Order 13175. Specifically, these revisions do not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. This action only extends the EPA’s permit rescission authority to the EPA regions that currently implement the NA NSR program in Indian country or tribes that would like to implement the NA NSR program through a delegation of these federal rules. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks 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 directly involve 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 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act (NTTAA) This action 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 that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, lowincome and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in Section IV of this document titled, ‘‘Environmental Justice Considerations.’’ K. Congressional Review Act (CRA) This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). E:\FR\FM\07NOR1.SGM 07NOR1 78048 Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations L. Judicial Review Under CAA section 307(b)(1), petitions for judicial review of any nationally applicable regulation, or any action the Administrator ‘‘finds and publishes’’ as based on a determination of nationwide scope or effect must be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days of the date the promulgation, approval, or action appears in the Federal Register. This action is nationally applicable, as it adds Permit Rescission provisions to 40 CFR part 49 and revises the rules governing procedures permit rescissions in 40 CFR part 52. As a result, petitions for review of this final action must be filed in the United States Court of Appeals for the District of Columbia Circuit by January 6, 2017. Filing a petition for reconsideration by the Administrator of this final action does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of this action. § 49.172 Final permit issuance and administrative and judicial review. § 52.21 Prevention of significant deterioration of air quality. * * For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: * * * * (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 (f). (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 §§ 49.166 through 49.173 would not apply to the source or modification. (4) If the reviewing authority rescinds a permit under this paragraph (f), 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 49—INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 49 continues to read as follows: ■ VI. 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, Incorporation by reference. 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference. Dated: October 26, 2016. Gina McCarthy, Administrator. 3. The authority citation for part 52 continues to read as follows: ehiers on DSK5VPTVN1PROD with RULES ■ Authority: 42 U.S.C. 7401, et seq. Authority: 42 U.S.C. 7401 et seq. Subpart C—General Federal Implementation Plan Provisions Subpart A—General Provisions 4. Section 52.21 is amended by revising paragraphs (w)(1) through (3) to read as follows: ■ 2. Section 49.172 is amended by adding paragraph (f) to read as follows: ■ VerDate Sep<11>2014 11:32 Nov 04, 2016 Jkt 241001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 * * * * (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 (w). (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 (w)(3) of this section 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. 2016–26593 Filed 11–4–16; 8:45 a.m.] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2016–0042; FRL–9954–40– Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Revisions and Amendments to Regulations for Continuous Opacity Monitoring, Continuous Emissions Monitoring, and Quality Assurance Requirements for Continuous Opacity Monitors Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of Maryland. The revision pertains to changes and amendments to Maryland regulations for continuous opacity monitoring (COM or COMs) and continuous emissions monitoring (CEM or CEMs) and to an amendment adding requirements for Quality Assurance and Quality Control (QA/QC) as they pertain to COMs. EPA is approving these revisions to the COMs and CEMs requirements in accordance with the requirements of the Clean Air Act (CAA). SUMMARY: This final rule is effective on December 7, 2016. DATES: E:\FR\FM\07NOR1.SGM 07NOR1

Agencies

[Federal Register Volume 81, Number 215 (Monday, November 7, 2016)]
[Rules and Regulations]
[Pages 78043-78048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26593]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 49 and 52

[EPA-HQ-OAR-2015-0782; FRL-9954-88-OAR]
RIN 2060-AS56


Rescission of Preconstruction Permits Issued Under the Clean Air 
Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating 
amendments to the EPA's federal Prevention of Significant Deterioration 
(PSD) regulations to remove a date restriction from the Permit 
Rescission provision. Other than removing the date restriction, this 
final rule does not alter the criteria under which a new source review 
(NSR) permit may be rescinded. This final rule also clarifies that a 
rescission of a permit is not automatic and corrects an outdated cross-
reference to another part of the PSD regulations. The EPA is also 
adding a corresponding Permit Rescission provision in the federal 
regulations that apply to major sources in nonattainment areas of 
Indian country.

DATES: This final rule is effective on December 7, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2015-0782. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, i.e., 
confidential business information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available electronically in http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For further general information on 
this rulemaking, contact Ms. Jessica Montanez, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency (C504-03), 
Research Triangle Park, NC 27711, by phone at (919) 54l-3407, or by 
email at montanez.jessica@epa.gov.

SUPPLEMENTARY INFORMATION: 
    Regulated entities. The Administrator determined that this action 
is subject to the provisions of Clean Air Act (CAA or Act) section 
307(d). CAA section 307(d)(1)(V) (the provisions of CAA section 307(d) 
apply to ``such other actions as the Administrator may determine''). 
These are amendments to existing regulations and could affect any 
facility that is eligible for a PSD permit rescission for any such 
permit issued by the EPA, reviewing authorities that implement the 
EPA's regulations through delegation or reviewing authorities that 
incorporate the federal PSD regulations by reference.

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this final rulemaking include 
reviewing authorities responsible for the permitting of stationary 
sources of air pollution, including the following: The EPA Regional 
offices; air agencies that have delegated authority to implement the 
EPA regulations; and air agencies that administer EPA-approved air 
programs that incorporate the federal NSR rules by reference. Entities 
also potentially affected by this final rulemaking include owners and 
operators of stationary sources subject to NSR permitting programs 
under the CAA that are administered by the entities described 
previously.

B. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this notice will be posted at: https://www.epa.gov/nsr/nsr-regulatory-actions. Upon publication in the Federal Register, only the published 
version may be considered the final official version of the notice, and 
will govern in the case of any discrepancies between the Federal 
Register published version and any other version.

C. How is this document organized?

    The information presented in this document is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related 
information?
    C. How is this document organized?
II. Background for Final Rulemaking
III. Overview of the Final Revisions
    A. What are the final revisions to the 40 CFR part 52 Permit 
Rescission provision?
    B. What are the final revisions to the 40 CFR part 49 Indian 
country nonattainment NSR provisions?
    C. What is the basis for the EPA's final revisions?
IV. Environmental Justice Considerations
V. 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 Risks 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 (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)
    L. Judicial Review
VI. Statutory Authority

II. Background for Final Rulemaking

    On June 14, 2016, the EPA proposed revisions to the Permit 
Rescission provision in the EPA's federal PSD regulations at 40 CFR 
52.21(w). The proposed revisions remove a date restriction from this 
provision, clarify that a rescission of a permit is contingent on the 
reviewing authority's concurrence with a rescission applicant's 
demonstration that the PSD permit provisions ``would not apply to the 
source or modification,'' and correct an outdated cross-reference to 
another part of the PSD regulations. The EPA also proposed to add a 
corresponding Permit Rescission provision in the federal regulations 
that apply to major sources in nonattainment areas of Indian country.
    The preamble to the proposal provided an overview of the NSR 
permitting program and a brief history of the previous revisions to the 
Permit Rescission provision regulations. The preamble also explained 
the EPA's basis for the proposed changes and rationale. Because the EPA 
is finalizing this rule as it was proposed, this final rulemaking 
notice does not repeat that discussion.
    The 30-day public comment period for the proposed rule closed on 
July 14, 2016. In Section III of this document, we summarize and 
respond to the comments received and explain the

[[Page 78044]]

basis for the regulatory text revisions made by this final rule.

III. Overview of the Final Revisions

A. What are the final revisions to the 40 CFR part 52 Permit Rescission 
provision?

    In this final rule, we are making three specific revisions to the 
Permit Rescission provision in the PSD regulations at 40 CFR part 52. 
First, we are revising 40 CFR 52.21(w)(2) to remove the July 30, 1987, 
date restriction. Second, we are revising 40 CFR 52.21(w)(3) to change 
the word ``shall'' to ``may'' to make clear that this provision does 
not create a mandatory duty on the Administrator to grant a rescission 
request. Lastly, we are revising 40 CFR 52.21(w)(1) to appropriately 
cross reference paragraph (r) and not paragraph (s) of our PSD 
regulations.
    The PSD Permit Rescission provision is applicable for the EPA 
Regions and other reviewing authorities that are delegated authority by 
the EPA to issue PSD permits on behalf of the EPA (via a delegation 
agreement). The provision also applies to reviewing authorities that 
have their own PSD rules approved by the EPA in a State Implementation 
Plan (SIP) where the SIP incorporates 40 CFR 52.21(w) by reference.

B. What are the final revisions to the 40 CFR part 49 Indian country 
nonattainment NSR provisions?

    This final rule adds a provision to 40 CFR 49.172(f) to provide 
authority to rescind nonattainment new source review (NA NSR) permits 
in Indian country. This provision mirrors the provision being finalized 
at 40 CFR 52.21(w) by providing the EPA and delegated permit reviewing 
authorities the authority to rescind NA NSR permits where the 
application for rescission adequately shows that the NA NSR rules for 
Indian country at 40 CFR 49.166 through 49.173 would not apply to the 
source or modification. This provision also includes methods for 
adequate notice of the rescission determination in accordance with the 
public noticing requirements for NA NSR permits in Indian country.

C. What is the basis for the EPA's final revisions?

1. Removal of the July 30, 1987, Date Restriction in 40 CFR 52.21(w)(2)
a. Summary of the EPA's Basis for This Action
    As stated in the proposal, experience has shown that there can be 
circumstances where the EPA believes rescission of a permit issued 
under the PSD rules in effect after July 30, 1987, may be appropriate 
under the criteria in paragraph (w)(3) of the Permit Rescission 
provision. In one recent instance, the EPA determined a need for 
rescission authority after the Supreme Court of the United States 
(Supreme Court) determined that the EPA may not treat greenhouse gases 
(GHGs) as an air pollutant for purposes of determining whether a source 
is a major source required to obtain a PSD permit. Utility Air 
Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427 
(2014) (``UARG''). However, because of the date restriction in the 
former PSD Permit Rescission provision, the EPA had to revise this 
Permit Rescission regulation to expressly allow rescission of permits 
granted for sources based solely on the emissions of GHGs. May 7, 2015; 
80 FR 26183. The EPA believes removal of the date restriction is 
appropriate to improve implementation efficiency and eliminate the need 
to conduct similar targeted rulemakings in the future.
b. Summary of Comments
    Two commenters generally supported the removal of the date 
restriction. One commenter believes that the right for a source to 
request a permit rescission should be ongoing. The other commenter 
noted that the amendment is intended to allow a CAA permit holder the 
ability to request that the EPA rescind permits that would no longer be 
required under the current regulations. Nevertheless, another commenter 
questioned why the revision was necessary since (1) the EPA already 
amended the Permit Rescission provision to accommodate rescission of 
permits affected by the UARG decision and (2) the EPA has made only two 
other minor adjustments to rescind certain permits over the past 36 
years.
c. EPA Response
    We agree with those commenters that support removal of the July 30, 
1987, date restriction from the PSD Permit Rescission provision. As we 
discussed in the proposed rule preamble, the EPA has periodically found 
a need to amend this provision. Although the instances under which PSD 
permit rescissions are appropriate are limited and the EPA has made a 
limited number of amendments to 40 CFR 52.21(w) since it was initially 
adopted, the purpose for these rule amendments is forward-looking. We 
expect future instances under which rescission of PSD permits issued 
after July 30, 1987, would be appropriate under the criteria in 
paragraph (w)(3) of the current Permit Rescission provision. Therefore, 
in this final rule the EPA is finalizing the removal of the July 30, 
1987, date to obviate the need to make further changes to this 
regulation in the future.
2. Revision to 40 CFR 52.21(w)(3) To Clarify That the EPA Administrator 
Does Not Have a Mandatory Duty To Grant a Rescission Request
a. Summary of the EPA's Basis
    The EPA proposed to revise 40 CFR 52.21(w)(3) to make it clear that 
the provision does not create a mandatory duty on the Administrator to 
grant a rescission request. Specifically, the EPA proposed to replace 
the word ``shall'' with the word ``may'' in this provision 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.''

b. Summary of Comments

    One commenter recommended that we retain the existing language in 
40 CFR 52.21(w)(3) as ``shall'' instead of ``may.'' The commenter 
believed that the existing language in the regulation provides the 
Administrator discretion to grant a rescission request since the ``if'' 
in that regulatory text shows that a source has the burden of proof to 
establish that a source is eligible for the permit rescission and there 
is no guaranteed EPA approval.

c. EPA Response

    The EPA continues to believe that it is appropriate to change the 
word ``shall'' to ``may'' in this provision to clarify 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 word ``shall'' 
is commonly used in statutes and regulations to describe a mandatory 
requirement. Even if other words in 40 CFR 52.21(w)(3) convey that a 
reviewing authority has discretion to deny a request, the EPA believes 
the regulation should be clear. We believe it is clearer to use 
discretionary language that conveys the meaning more directly so one 
does not have to rely on context to determine the meaning. As stated in 
the proposal, the EPA does not believe this revision changes the 
meaning or intent of the existing provision, but rather clarifies the 
discretion held by the Administrator. Thus, the EPA is finalizing this 
revision in this final rule.

[[Page 78045]]

3. Corrected Cross-Reference in 40 CFR 52.21(w)(1)

a. Summary of the EPA's Basis

    We proposed to correct 40 CFR 52.21(w)(1) because it currently 
references 40 CFR 52.21(s), which pertains to environmental impact 
statements. 40 CFR 52.21(w)(1) pertains to permit expiration and 
rescission, so the correct reference should be 40 CFR 52.21(r), which 
pertains to permit expiration in our federal PSD regulations.

b. Summary of Comments and Final EPA Action

    The EPA received no comments on this proposed correction and is 
finalizing this correction as proposed. We believe 40 CFR 52.21(r) is 
the correct reference for 40 CFR 52.21(w)(1).

4. Addition of Permit Rescission Authority to the Nonattainment NSR 
Regulations for Indian Country

a. Summary of the EPA's Basis

    We also proposed to add a provision in 40 CFR 49.172(f) to provide 
rescission authority for major NA NSR permits in Indian country. This 
new regulatory text includes public notice requirements consistent with 
the noticing requirements applicable to major NA NSR permits in Indian 
country. 40 CFR 49.171. The EPA has determined 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 Permit 
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 permit rescission authority.

b. Summary of Comments and Final EPA Action

    The EPA received no comments on this proposed provision. The EPA is 
finalizing the addition of permit rescission authority for major NA NSR 
permits in Indian country as proposed.
5. Other Issues Raised in Comments
a. Establishing Specific Criteria for Granting or Denying a Permit 
Rescission Request
i. Summary of Comments
    Various commenters requested that the EPA establish specific 
criteria under which the EPA would grant or deny a permit rescission 
request. Commenters noted that without such criteria, implementation of 
the Permit Rescission provision may be inconsistent between reviewing 
authorities with EPA-approved SIPs incorporating 40 CFR 52.21(w) and 
reviewing authorities that, for example, implement the federal PSD 
rules through delegation.
    One commenter stated that the EPA should withdraw its proposal and 
re-propose the amendment to the PSD Permit Rescission provision and the 
addition of this provision to the major NA NSR program in Indian 
country with specific criteria for when a permittee would be eligible 
for rescission
    Another commenter argued that in the preamble and through other 
discussions between the EPA and the National Association of Clean Air 
Agencies members, the EPA staff have indicated that our intent is to 
limit permit rescissions to cases in which court decisions have changed 
the PSD rules or situations in which the PSD rules have changed and 
gone through all comment periods and reconsiderations. The commenter 
added that the proposed rule language does not state this.
ii. EPA Response
    As stated in the proposal, the EPA believes there are a limited 
number of circumstances where a permit rescission is justified and that 
permit rescission requests are very case-specific. Review of a 
rescission request requires 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 determined that the requirements 
of 40 CFR 52.21 ``would not apply to the source or modification.'' 40 
CFR 52.21(w)(3). The principal aim of this targeted rulemaking action 
is to remove an unnecessary impediment to rescissions of permits issued 
after the date specified in the existing version of 40 CFR 52.21(w) and 
therefore avoid the need for future revisions to 40 CFR 52.21(w). 
Although the EPA generally believes permit rescissions are warranted in 
a limited category of circumstances, specifically defining that 
category of circumstances would be contrary to the goals of this rule 
to provide flexibility going forward to address circumstances that may 
not have been previously anticipated or experienced. Therefore, we do 
not believe it is appropriate to develop specific a priori criteria for 
when a permit rescission would be granted or denied, nor do we agree 
with the commenter that argued that permit rescissions are limited only 
to cases in which court decisions have changed the PSD rules or 
situations in which the PSD rules have changed and gone through all 
comment periods and reconsiderations. Thus, the EPA is not including 
specific criteria for PSD permit rescissions and NA NSR permit 
rescissions in Indian country in this final rule.
b. Clarifying Whether the EPA Would Grant Permit Rescission Requests 
Under Specific Circumstances
i. Summary of Comments
    A few commenters provided specific examples of circumstances where 
they believe PSD permit rescissions or rescission of PSD related terms 
and conditions in other types of air permits could qualify for permit 
rescission. These circumstances include:
    1. Requesting PSD permit rescissions when situations such as energy 
efficiency improvements and changes in operations cause a source to no 
longer be a major PSD stationary source.
    2. Allowing a permit rescission when a pollutant is no longer 
regulated under the PSD program because the EPA established a CAA 
section 112 emission limitation, as long as existing limitations in the 
PSD permits are less restrictive than the applicable section 112 
limitations and no increase in emission of another NSR regulated 
pollutant would be caused by the rescission.
    3. Allowing PSD permits to be rescinded after a source takes limits 
at a future date to restrict emissions below the major source 
thresholds.
    One commenter also stated that the EPA should allow a source to 
request removal of related obligations including synthetic minor PSD 
permit limits or no longer applicable or obsolete PSD conditions in its 
federal or PSD-approved state or local construction permit(s) and/or 
title V operating permits.
ii. EPA Response
    The EPA's longstanding policy has been to evaluate permit 
rescission requests on a case-by-case basis since there are multiple 
factors that need to be considered when evaluating whether a source is 
eligible for a PSD permit rescission. As we stated previously, PSD 
permit rescissions 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 determined that the requirements 
of 40 CFR 52.21 ``would not apply to the source or modification.'' 40 
CFR 52.21(w)(3). As such, the EPA cannot say a priori whether the 
circumstances raised by the commenters would always be eligible or not 
for permit rescission. In addition, based on past experience, the EPA

[[Page 78046]]

believes that it would not be typical for major sources to seek PSD 
permit rescissions.
    Furthermore, the scope of this rule is limited to PSD and NA NSR 
permitting and does not address the revision or rescission of permits 
that are not major NSR permits. Therefore, whether to allow a source to 
request removal of related obligations in non-major NSR permits, such 
as synthetic minor permits or title V operating permits, is outside the 
scope of this rulemaking.
c. Specifying That PSD Permits Issued Before the Promulgation of the 
2007 Final Ethanol Rule Can Be Rescinded Under the Revised Permit 
Rescission Provision
i. Summary of Comments
    A couple of commenters asked the EPA to clarify that the revised 
PSD Permit Rescission provision would apply to PSD permits for fuel 
ethanol plants that were issued before July 2, 2007, specifically fuel 
ethanol plants that are no longer considered ``major'' under the 
revised major source applicability threshold for ``chemical processing 
plants.'' According to one of these commenters, the EPA acknowledged in 
the Ethanol Rule that PSD permits issued under the 100 tons per year 
(tpy) major source threshold for sources that would not trigger the 
revised 250 tpy threshold would be eligible to take advantage of the 
PSD Permit Rescission provision. 72 FR 24060, 24071.
    In addition, this same commenter claims that the situation 
presented by the Ethanol rule is analogous to the situations described 
in the preamble where the EPA previously revised the Permit Rescission 
provision to respond to the United States District of Columbia Circuit 
(D.C. Circuit) Court decision in Alabama Power and when the EPA 
transitioned from the Total Suspended Particulates to the Particulate 
Matter 10 micrometers in diameter or less indicator for the Particulate 
Matter National Ambient Air Quality Standard.
    Finally, the commenter claims that the equal protection clause, 
found in 14th Amendment of the United States Constitution and Article 
I, Section I of the Wisconsin State Constitution, supports rescission 
of pre-2007 PSD permits issued for fuel ethanol facilities. According 
to the commenter, treating ethanol facilities built prior to the 
adoption of the Ethanol Rule (``Pre-2007) and those built after the 
adoption of the Ethanol Rule differently is a disparity between two 
similarly situated classes distinguished only by year.
ii. EPA Response
    For the reasons stated in Sections III.C.5.a and III.C.5.b of this 
rule, we do not believe it is appropriate in this rule to address 
specific circumstances when a permit rescission may be granted or 
denied. In addition and as one commenter argues, the EPA did not 
acknowledge in the Ethanol Rule that PSD permits issued under the 100 
tpy major source threshold for sources that would not trigger the 
revised 250 tpy threshold would be eligible to take advantage of the 
PSD Permit Rescission provision discussed in this rule.
    Historically, corn milling facilities that produced ethanol only 
for fuel use were considered by the EPA to be part of the ``chemical 
process plants'' category while facilities that produced ethanol only 
for human consumption were not considered by the EPA to be in that 
category. Under the PSD definition of major stationary source, 
``chemical process plants'' is one of the source categories listed in 
40 CFR 52.21(b)(1)(i) for which a source with a potential to emit a 
regulated NSR pollutant \1\ in an amount equal to or higher than 100 
tpy is subject to PSD permitting. All other non-listed source 
categories are subject to permitting if the source has the potential to 
emit a regulated NSR pollutant in an amount equal to or higher than 250 
tpy. On May 1, 2007, the EPA modified the definition of the ``chemical 
process plants'' category of sources by removing corn milling 
facilities that produce ethanol only for fuel use from this definition. 
This change established the same 250 tpy major source applicability 
threshold for ethanol producing facilities regardless of whether a 
source produces ethanol for human consumption, for fuel, or for an 
industrial purpose.
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    \1\ As defined in 40 CFR 52.21(b)(50).
---------------------------------------------------------------------------

    On July 2, 2007, the EPA received a petition for reconsideration 
pursuant to section 307(d)(7)(B) of the CAA, which the EPA denied in 
its entirety on March 27, 2008.\2\ On March 2, 2009, the EPA received a 
second petition for reconsideration, and we are currently in the 
process of considering that petition. Furthermore, this rule and the 
EPA's denial of the first petition for reconsideration have been 
challenged in the D.C. Circuit. That litigation is currently being held 
in abeyance pending the outcome of the second petition for 
reconsideration.
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    \2\ Details of the EPA's denial of the petition for 
reconsideration can be found at: https://www.epa.gov/sites/production/files/2015-12/documents/20080327letter.pdf.
---------------------------------------------------------------------------

    Since this second petition for reconsideration is currently under 
evaluation by the EPA, we believe it is premature to say in this rule 
whether pre-2007 fuel ethanol PSD permits would meet the regulatory 
criteria for a permit rescission under 40 CFR 52.21(w)(3).
d. Comments on the Scope of the Proposed Revisions to the Permit 
Rescission Provision
i. Summary of Comments
    One commenter would like the EPA to confirm that the amendment does 
not allow either the EPA or other reviewing authorities to use the 
Permit Rescission provision to unilaterally rescind or suspend a duly 
issued CAA NSR permit without the request of the permittee. 
Specifically, the commenter would like the EPA to clarify that 
officials do not intend for the proposed amendment to authorize any 
permit reviewing authority to: (1) Use this provision to either require 
updates of state SIPs, or rescind existing SIPs or disapprove future 
updates of SIPs (i.e., there is no obligation based on this rule change 
for states to modify SIPs); (2) Use the proposed amendment to rescind 
any permit without a written request from the owner/operator of the 
source; (3) Use the proposed amendment to trigger any changes to 
existing permitted emission limits (e.g., Potential to Emit, Plantwide 
Applicability Limits, applicable New Source Performance Standards, or 
unit-specific permit limits); or (4) Use the proposed amendment 
provision in any way that would alter the calculation (for an affected 
source) of significant emissions increase or net significant emission 
increase.
ii. EPA Response
    The amended regulatory text in the Permit Rescission provision does 
not allow either the EPA or any other reviewing authorities to 
unilaterally rescind or suspend a duly issued CAA NSR permit without 
the request of the permittee. These provisions also do not alter other 
CAA requirements, such as state SIP provisions on topics other than NSR 
permitting. As discussed in the next section, the revisions also should 
not affect NSR permitting requirements in approved SIPs unless those 
SIPs incorporate Sec.  52.21(w) by reference. The Permit Rescission 
provision in 40 CFR 49.172(f) and 40 CFR 51.21(w) only applies for the 
rescission of PSD permits under the federal PSD permitting regulations 
and NA NSR permits in Indian country, respectively, upon request for 
rescission application of a permittee when the Administrator

[[Page 78047]]

deems such rescission is consistent with the regulatory terms.
e. Comments on State Requirements for PSD Permit Rescissions
i. Summary of Comments
    One commenter would like the EPA to clarify if this final action 
applies to states with EPA-approved SIPs. A different commenter argued 
that the EPA should allow states with EPA-approved SIP programs to use 
existing EPA-approved permitting procedures to rescind PSD permits and 
not require states with EPA-approved SIP programs to develop new rules 
that mirror 40 CFR 51.21(w)(2).
ii. EPA's Response
    As we stated in the proposal, this final action does not apply to 
states with EPA-approved SIPs unless they incorporate 40 CFR 52.21(w) 
by reference. We did not propose amendments to 40 CFR part 51 to revise 
the permitting provisions applicable to state and local programs. 
Therefore, these revisions to the PSD Permit Rescission provision do 
not apply to SIP-approved programs unless they incorporate the federal 
PSD Permit Rescission provision by reference. States will not be 
required to make any changes to their SIP-approved programs as a result 
of this rule.

IV. Environmental Justice Considerations

    The revisions being finalized in this rule improve implementation 
efficiency for the Permit Rescission provision by eliminating the date 
restriction, correcting an outdated cross-reference and clarifying that 
a rescission of a permit is not automatic (the Administrator may grant 
a PSD permit rescission only if the application shows that the PSD 
rules would not apply to the source or modification). In addition, we 
are adding a provision in 40 CFR 49.172(f) to provide rescission 
authority for major NA NSR permits in Indian country for the same 
reasons it is appropriate to allow rescission of PSD permits and to 
ensure that all federal programs for major source permitting have 
permit rescission authority. Reviews of permit rescission requests 
after the finalization of this rule will continue to 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 
determined that the requirements of 40 CFR 49.166 through 49.173 for 
the NA NSR program in Indian country or 40 CFR 52.21 for the PSD 
program ``would not apply to the source or modification.'' Thus, we do 
not believe that these revisions and additions to the rescission of 
federal major NSR permits will have any effect on environmental justice 
communities.

V. 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 PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 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 revisions do not affect the 
relationship or distribution of power and responsibilities between the 
federal government and Indian tribes. This action only extends the 
EPA's permit rescission authority to the EPA regions that currently 
implement the NA NSR program in Indian country or tribes that would 
like to implement the NA NSR program through a delegation of these 
federal rules. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks 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 directly involve 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 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This action 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 that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income and/or indigenous peoples, as specified in 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The documentation for this decision is contained in Section IV of 
this document titled, ``Environmental Justice Considerations.''

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

[[Page 78048]]

L. Judicial Review

    Under CAA section 307(b)(1), petitions for judicial review of any 
nationally applicable regulation, or any action the Administrator 
``finds and publishes'' as based on a determination of nationwide scope 
or effect must be filed in the United States Court of Appeals for the 
District of Columbia Circuit within 60 days of the date the 
promulgation, approval, or action appears in the Federal Register. This 
action is nationally applicable, as it adds Permit Rescission 
provisions to 40 CFR part 49 and revises the rules governing procedures 
permit rescissions in 40 CFR part 52. As a result, petitions for review 
of this final action must be filed in the United States Court of 
Appeals for the District of Columbia Circuit by January 6, 2017. Filing 
a petition for reconsideration by the Administrator of this final 
action does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review must be filed, and shall not postpone the effectiveness 
of this action.

VI. 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, Incorporation by reference.

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference.

    Dated: October 26, 2016.
Gina McCarthy,
Administrator.
    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is 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 (f).
    (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 Sec. Sec.  49.166 through 49.173 would 
not apply to the source or modification.
    (4) If the reviewing authority rescinds a permit under this 
paragraph (f), 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 (w).
    (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 (w)(3) 
of this section 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. 2016-26593 Filed 11-4-16; 8:45 a.m.]
 BILLING CODE 6560-50-P