2011-2776. Approval and Promulgation of Implementation Plans; Alaska: Prevention of Significant Deterioration; Greenhouse Gas Permitting Authority and Tailoring Rule Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving a revision to the State Implementation Plan (SIP), submitted by the Commissioner of the Alaska Department of Environmental Conservation (ADEC) to EPA on November 19, 2010. The SIP revision updates Alaska's Prevention of Significant Deterioration (PSD) program to reflect changes to the Federal PSD program relating to the permitting of greenhouse gas (GHG) emissions.

DATES:

This action is effective on March 11, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R10-OAR-2010-0921. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at EPA Region 10, Office of Air, Waste, and Toxics, AWT-107, 1200 Sixth Avenue, Seattle, Washington 98101. EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Scott Hedges at telephone number: [phone], e-mail address: [e-mail], or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA.

Information is organized as follows:

Table of Contents

I. Background

II. Public Comments on the Proposed Action

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

On December 6, 2010, EPA published in the Federal Register, a proposal to approve a draft revision to the Alaska SIP, submitted by the Commissioner of ADEC to EPA on October 25, 2010, for parallel processing if the final SIP revision submitted by ADEC to EPA was consistent with the draft SIP revision. See 75 FR 75658. The draft SIP revision reflected changes to the Federal PSD program as of August 2, 2010 relating to the permitting of GHGs. In the proposal, EPA made the preliminary determination that the draft SIP revision was approvable as a SIP strengthening measure because it was consistent with the Clean Air Act (CAA) and EPA regulations regarding PSD permitting for GHGs.

ADEC submitted to EPA a final SIP revision relating to the permitting of GHGs on November 19, 2010. The final SIP revision is consistent with the draft SIP revision.

ADEC has also made other changes to its PSD permitting rule and other air regulations at the same time as this GHG-related revision. EPA will be acting on these other changes in a subsequent and separate rulemaking.

II. Public Comments on the Proposed Action

EPA provided a 30-day review and comment period and solicited comments on our proposal published in the December 6, 2010, Federal Register (75 FR 75658). EPA received one comment, submitted by ADEC, which supported the proposed action.

III. Final Action

Pursuant to section 110 of the CAA, EPA is approving as a SIP strengthening measure the State of Alaska's SIP revision that reflects changes to the Federal PSD program as of August 2, 2010, relating to the permitting of GHGs. The SIP revision provides Alaska with the authority to regulate GHGs under its PSD program and establishes appropriate emissions thresholds for determining PSD applicability to new and modified GHG-emitting sources in accordance with EPA's regulations regarding PSD permitting for GHGs.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 11, 2011. Filing a petition for reconsideration by the Administrator of this final rule 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 may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations, and Reporting and recordkeeping requirements

Dated: January 18, 2011.

Dennis J. McLerran,

Regional Administrator, Region 10.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

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

Subpart C—Alaska

2. Section 52.70 is amended by adding paragraph (c)(38) to read as follows:

§ 52.70

Identification of plan

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(c) * * *

(38) On November 19, 2010, the Alaska Department of Environmental Conservation (ADEC) submitted a revision to the State of Alaska Implementation Plan that adds a definition of “Subject to regulation” as it applies to greenhouse gases in Alaska's Prevention of Significant Deterioration (PSD) permit rule.

(i) Incorporation by reference. (A) The following section of ADEC's air quality regulations: The incorporation by reference date for 40 CFR 52.21 in 18 AAC 50.040(h), introductory paragraph, but only with respect to its incorporation by reference of the definition of “Subject to regulation” in 40 CFR 52.21(b)(49) for the purpose of greenhouse gases only; State effective December 9, 2010.

3. Section 52.96 is amended by revising paragraph (a) to read as follows:

§ 52.96

Significant deterioration of air quality.

(a) The State of Alaska Department of Environmental Conservation Air Quality Control Regulations as in effect on December 3, 2005 (specifically 18 AAC 50.010 except (7) and (8); 50.015; 50.020; 50.030(6) and (7); 50.035(a)(4) and (5); 50.040(h) except (17), (18), and (19); 50.215 except (a)(3); 50.250; 50.306 except (b)(2) and (b)(3); 50.345 except (b), (c)(3) and (l); and 50.990 except (21) and (77)) are approved as meeting the requirements of part C for preventing significant deterioration of air quality. The introductory paragraph to 18 AAC 50.040(h) as in effect on December 9, 2010 is also approved as meeting the requirements of part C for preventing significant deterioration of air quality, but only with respect to its incorporation by reference of the definition of “Subject to regulation” in 40 CFR 52.21(b)(49) for the purpose of greenhouse gases only.

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