2011-14684. Approval and Promulgation of Implementation Plans; New Hampshire: Prevention of Significant Deterioration; Greenhouse Gas Permitting Authority and Tailoring Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve a requested revision to New Hampshire's State Implementation Plan (SIP) under the Clean Air Act (CAA or Act). The proposed SIP revision was submitted by New Hampshire, through the New Hampshire Department of Environmental Services (NH DES), Air Resources Division, to EPA on February 7, 2011. The proposed SIP revision modifies New Hampshire's Prevention of Significant Deterioration (PSD) program to establish appropriate emission thresholds for determining which new stationary sources and modification projects become subject to New Hampshire's PSD permitting requirements for their greenhouse gas (GHG) emissions. This rule clarifies the applicable thresholds in the New Hampshire SIP, addresses the flaw discussed in the SIP Narrowing Rule, and incorporates state rule changes adopted at the state level into the Federally-approved SIP. EPA is proposing approval of New Hampshire's February 7, 2011, SIP revision because the Agency has made the preliminary determination that this SIP revision is in accordance with the CAA and EPA regulations regarding PSD permitting for GHGs.

DATES:

Comments must be received on or before July 14, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R01-OAR-2011-0346, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Fax: [phone].

4. Mail: “Docket Identification Number EPA-R01-OAR-2011-0346,” Donald Dahl, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, 5 Post Office Square—Suite 100, (mail code OEP05-2), Boston, MA 02109-3912.

5. Hand Delivery or Courier: Deliver your comments to: Donald Dahl, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, and Indoor Programs Unit, 5 Post Office Square—Suite 100, (mail code OEP05-2), Boston, MA 02109-3912. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

Instructions: Direct your comments to Docket ID No. “EPA-R01-OAR-2011-0346.” EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, and Indoor Programs Unit, 5 Post Office Square—Suite 100, Boston, Massachusetts. EPA requests that if at all possible, 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 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

For information regarding the New Hampshire SIP, contact Donald Dahl, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, and Indoor Programs Unit, 5 Post Office Square—Suite 100, (mail code OEP05-2), Boston, MA 02109—3912. Mr. Dahl's telephone number is [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA proposing in this document?

II. What is the background for the action proposed by EPA in this document?

A. GHG-Related Actions

B. New Hampshire's Actions

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

IV. Proposed Action

V. Statutory and Executive Order Reviews

I. What action is EPA proposing in this document?

On February 7, 2011, NH DES submitted a revision to EPA for approval into the New Hampshire SIP to establish appropriate emission thresholds for determining which new or modified stationary sources become subject to New Hampshire's PSD permitting requirements for GHG emissions. Due to a previous EPA action known as the SIP Narrowing Rule, starting on January 2, 2011, the approved New Hampshire SIP's PSD requirements for GHG now apply at the thresholds specified in the Tailoring Rule, not at the 100 or 250 tons per year (tpy) levels otherwise provided under the CAA, which would overwhelm New Hampshire's permitting resources. Final approval of this SIP revision request will put in place the GHG emission thresholds for PSD applicability set forth in EPA's Tailoring Rule, ensuring that smaller GHG sources emitting less than these thresholds will not be subject to permitting requirements. Pursuant to section 110 of the CAA, EPA is proposing to approve this revision into the New Hampshire SIP.

II. What is the background for the action proposed by EPA in this document?

This section briefly summarizes EPA's recent GHG-related actions that provide the background for today's proposed action. More detailed discussion of the background is found in the preambles for those actions. In particular, the background is contained in what we call the GHG PSD SIP Narrowing Rule,^[1] and in the preambles to the actions cited therein.

A. GHG-Related Actions

EPA has recently undertaken a series of actions pertaining to the regulation of GHGs that, although for the most part distinct from one another, establish the overall framework for today's final action on the New Hampshire SIP. Four of these actions include, as they are commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a single final action,^[2] the “Johnson Memo Reconsideration,” ^[3] the “Light-Duty Vehicle Rule,” ^[4] and the “Tailoring Rule.” ^[5] Taken together and in conjunction with the CAA, these actions established regulatory requirements for GHGs emitted from new motor vehicles and new motor vehicle engines; determined that such regulations, when they took effect on January 2, 2011, subjected GHGs emitted from stationary sources to PSD requirements; and limited the applicability of PSD requirements to GHG sources on a phased-in basis. EPA took this last action in the Tailoring Rule, which, more specifically, established appropriate GHG emission thresholds for determining the applicability of PSD requirements to GHG-emitting sources.

PSD is implemented through the SIP system, and so in December 2010, EPA promulgated several rules to implement the new GHG PSD SIP program. Recognizing that some states had approved SIP PSD programs that did not apply PSD to GHGs, EPA issued a SIP call and, for some of these states, a FIP.^[6] Recognizing that other states had approved SIP PSD programs that do apply PSD to GHGs, but that do so for sources that emit as little as 100 or 250 tpy of GHG, and that do not limit PSD applicability to GHGs to the higher thresholds in the Tailoring Rule, EPA issued the GHG PSD SIP Narrowing Rule. Under that rule, EPA withdrew its approval of the affected SIPs to the extent those SIPs covered GHG-emitting sources below the Tailoring Rule thresholds. EPA based its action primarily on the “error correction” provisions of CAA section 110(k)(6).

B. New Hampshire's Actions

On July 30, 2010, New Hampshire provided a letter to EPA, in accordance with a request to all States from EPA in the Tailoring Rule, with confirmation that the State has the authority to regulate GHG in its PSD program. The letter also confirmed that current New Hampshire rules require regulating GHGs at the existing 100/250 tpy threshold, rather than at the higher thresholds set in the Tailoring Rule. See the docket for this proposed rulemaking for a copy of New Hampshire's letter.

In the SIP Narrowing Rule, published on December 30, 2010, EPA withdrew its approval of New Hampshire's SIP (among other SIPs) to the extent that the SIP applies PSD permitting requirements to GHG emissions from sources emitting at levels below those set in the Tailoring Rule.^[7] As a result, New Hampshire's current approved SIP provides the state with authority to regulate GHGs, but only at and above the Tailoring Rule thresholds; and requires new and modified sources to receive a Federal PSD permit based on GHG emissions only if they emit at or above the Tailoring Rule thresholds.

The basis for this proposed SIP revision is that limiting PSD applicability to GHG sources to the higher thresholds in the Tailoring Rule is consistent with the SIP provisions that provide required assurances of adequate resources, and thereby addresses the flaw in the SIP that led to the SIP Narrowing Rule. Specifically, CAA section 110(a)(2)(E) includes as a requirement for SIP approval that States provide “necessary assurances that the State * * * will have adequate personnel [and] funding * * * to carry out such [SIP].” In the Tailoring Rule, EPA established higher thresholds for PSD applicability to GHG-emitting sources on grounds that the states generally did not have adequate resources to apply PSD to GHG-emitting sources below the Tailoring Rule thresholds,^[8] and no State, including New Hampshire, asserted that it did have adequate resources to do so.^[9] In the SIP Narrowing Rule, EPA found that the affected states, including New Hampshire, had a flaw in their SIP at the time they submitted their PSD programs, which was that the applicability of the PSD programs was potentially broader than the resources available to them under their SIP.^[10] Accordingly, for each affected state, including New Hampshire, EPA concluded that EPA's action in approving the SIP was in error, under CAA section 110(k)(6), and EPA rescinded its approval to the extent the PSD program applies to GHG-emitting sources below the Tailoring Rule thresholds.^[11] EPA recommended that States adopt a SIP revision to incorporate the Tailoring Rule thresholds, thereby (i) assuring that under State law, only sources at or above the Tailoring Rule thresholds would be subject to PSD; and (ii) avoiding confusion under the Federally approved SIP by clarifying that the SIP applies to only sources at or above the Tailoring Rule thresholds.^[12]

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

The regulatory revisions that NH DES submitted on February 7, 2011, establish thresholds for determining which stationary sources and modification projects become subject to permitting requirements for GHG emissions under New Hampshire's PSD program. Specifically, the submittal includes changes to New Hampshire's regulations at Air Resources Division Env-A 101 (Definitions) and Env-A 619 (PSD Permit Requirements) that New Hampshire finalized in December 2010.

New Hampshire is currently a SIP-approved state for the PSD program. In a letter provided to EPA on July 30, 2010, New Hampshire notified EPA of its interpretation that the State currently has the authority to regulate GHGs under its PSD regulations. The currently-approved New Hampshire PSD SIP (adopted prior to the promulgation of EPA's Tailoring Rule) applies to major stationary sources (having the potential to emit at least 100 tpy or 250 tpy or more of a regulated NSR pollutant, depending on the type of source) or modifications constructing in areas designated attainment or unclassifiable with respect to the NAAQS.

The amendments to Env-A 101 that EPA is proposing to approve into the New Hampshire SIP include: New Env-A 101.35, definition of “Carbon dioxide equivalent emissions”; new Env-A 101.96, definition of “Greenhouse gases”; an amendment to the definition of “Major source” in Env-A 101.115; and certain amendments to Env-A 619.03, “PSD Permit Requirements.”

New Hampshire's original SIP revision request to EPA, dated February 7, 2011, proposed to incorporate all of the amendments to Env-A 619.03 as part of its SIP revision request. After an exchange of correspondence, on May 16, 2011, New Hampshire withdrew from consideration its recent revisions to Env-A 619.03(a). Thus, EPA is proposing to approve into the SIP Env-A 619.03(b)-(e) as revised, but, in place of the revised Env-A 619.03(a), to retain its previously-approved predecessor, which was then numbered as Env-A 623.03(a).^[13] New Hampshire's previously-approved PSD regulations became effective under state law on July 23, 2001 and were approved by EPA on October 28, 2002 (67 FR 65710). EPA and New Hampshire agree that relying on the previously-approved version of Env-A 619.03(a) does not affect the manner in which Env-A 619.03(b)-(e) function. New Hampshire and EPA may take action on the revision to Env-A 619.03(a) in the future.

The changes to New Hampshire's PSD program regulations that EPA is proposing to approve are substantively the same as the amendments to the Federal PSD regulatory provisions in EPA's Tailoring Rule regarding greenhouse gases. As part of its review of this submittal, EPA performed a line-by-line review of New Hampshire's proposed revision and has preliminarily determined that they are consistent with the Tailoring Rule.

EPA has, however, identified several minor differences between the proposed SIP revision and EPA's PSD regulations. These differences arise from the fact that New Hampshire's PSD SIP consists, in the main, of an incorporation by reference of 40 CFR 52.21 as it stood when the PSD SIP was approved. For purposes of regulating greenhouse gases, however, New Hampshire has incorporated by reference the definitions of “major stationary source” and “significant” contained in 40 CFR 52.21(b), July 1, 2009 edition, and the definitions of “subject to regulation” and “regulated NSR pollutant” promulgated by EPA in the Tailoring Rule and codified at 40 CFR 52.21(b)(49)-(50). These differences and EPA's analysis of why they do not affect approvability are explained in a memorandum “Explanation of Two Definitions in New Hampshire's PSD Regulations.” See the docket for this proposed rulemaking for a copy of the memorandum.

IV. Proposed Action

Pursuant to section 110 of the CAA, EPA is proposing to approve New Hampshire's February 7, 2011 SIP revision relating to PSD requirements for GHG-emitting sources. Specifically, New Hampshire's February 7, 2011 SIP revision establishes appropriate emissions thresholds for determining PSD applicability to new and modified GHG-emitting sources in accordance with EPA's Tailoring Rule. EPA has made the preliminary determination that this SIP revision is approvable because it is in accordance with the CAA and EPA regulations regarding PSD permitting for GHGs.

If EPA does approve New Hampshire's changes to its air quality regulations to incorporate the appropriate thresholds for GHG permitting applicability into New Hampshire's SIP, then § 52.1522(c) of 40 CFR part 52, as included in EPA's SIP Narrowing Rule—which codifies EPA's limiting its approval of New Hampshire's PSD SIP to not cover the applicability of PSD to GHG-emitting sources below the Tailoring Rule thresholds—is no longer necessary. In today's proposed action, EPA is also proposing to amend § 52.1522(c) of 40 CFR part 52 to remove this unnecessary regulatory language.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this 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 Clean Air Act; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

List of Subjects in 40 CFR Part 52

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

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

Dated: June 1, 2011.

H. Curtis Spalding,

Regional Administrator, EPA New England.

Footnotes

1.  “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule.” 75 FR 82536 (Dec. 30, 2010).

2.  “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.” 74 FR 66496 (Dec. 15, 2009).

3.  “Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs.” 75 FR 17004 (Apr. 2, 2010).

4.  “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule.” 75 FR 25324 (May 7, 2010).

5.  “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule.” 75 FR 31514 (June 3, 2010).

6.  Specifically, by action dated December 13, 2010, EPA finalized a “SIP Call” that would require those states with SIPs that have approved PSD programs but do not authorize PSD permitting for GHGs to submit a SIP revision providing such authority. “Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call,” 75 FR 77698 (Dec. 13, 2010). EPA has begun making findings of failure to submit that would apply in any state unable to submit the required SIP revision by its deadline, and finalizing FIPs for such states. See, e.g. “Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Failure To Submit State Implementation Plan Revisions Required for Greenhouse Gases,” 75 FR 81874 (Dec. 29, 2010); “Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Federal Implementation Plan,” 75 FR 82246 (Dec. 30, 2010). Because New Hampshire's SIP already authorizes New Hampshire to regulate GHGs once GHGs became subject to PSD requirements on January 2, 2011, New Hampshire is not subject to the proposed SIP Call or FIP.

7.  “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule.” 75 FR 82536 (Dec. 30, 2010).

8.  Tailoring Rule, 75 FR 31517.

9.  SIP Narrowing Rule, 75 FR 82540.

10.  Id. at 82542.

11.  Id. at 82544.

12.  Id. at 82540.

13.  Env-A 623 was renumbered to Env-A 619 for reasons unrelated to the Tailoring Rule or this proposed revision.