[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Proposed Rules]
[Pages 81179-81187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32456]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2010-0945, FRL-9243-9]
Approval and Promulgation of Implementation Plans; Nebraska:
Prevention of Significant Deterioration; Greenhouse Gas Permitting
Authority and Tailoring Rule Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve revisions to the Nebraska State
Implementation Plan (SIP), which were recently submitted by the
Nebraska Department of Environmental Quality (NDEQ). These revisions
include proposed changes to Nebraska's Prevention of Significant
Deterioration (PSD) program, submitted by NDEQ to EPA on November 19,
2010; and proposed changes to Nebraska's greenhouse gas (GHG)
construction permit related regulations, submitted by NDEQ to EPA on
October 19, 2010 (that NDEQ requested parallel processing for on
September 30, 2010). The proposed SIP revision (Chapters 1, 2, 5, 14,
15, 17 and 19 of Title 129 of the Nebraska Administrative Code) to
Nebraska's Prevention of Significant Deterioration (PSD) program
includes Nebraska's adoption of portions of EPA's 2002 new source
review (NSR) rule, which we call the NSR Reform Rule, and which we
issued by notice dated December 31, 2002, 67 FR 80186. The proposed SIP
revision also provides the state of Nebraska with authority to regulate
GHG emissions under the PSD program and incorporates the GHG emission
thresholds established in EPA's ``PSD and Title V Greenhouse Gas
Tailoring Final Rule,'' which EPA issued by notice dated June 3, 2010,
75 FR 31514. EPA is proposing approval of both submittals and is
proposing approval of the GHG portion of the proposed SIP revision
through a parallel processing action. In the alternative, EPA is
soliciting comments from the public on whether it should initially only
approve Nebraska's October 19, 2010 submittal with respect to the
revisions to the GHG construction permit regulations, and address
Nebraska's November 19, 2010 submittal related to NSR Reform in a
subsequent final action.
DATES: Comments must be received on or before January 26, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2010-0945, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (913) 551-7844.
4. Mail: Air Planning and Development Branch, Air and Waste
Management Division, U.S. Environmental Protection Agency, Region 7,
901 North 5th Street, Kansas City, Kansas 66101.
5. Hand Delivery or Courier: Mr. Larry Gonzalez, Air Planning and
Development Branch, Air and Waste Management Division, U.S.
Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas
City, Kansas 66101. 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 a.m. to 4:30
p.m., excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2010-0945. 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 Air Planning and Development
Branch, Air and Waste Management Division, U.S. Environmental
Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas
66101. 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 Nebraska
SIP, contact Mr. Larry Gonzalez, Air Planning and Development Branch,
Air and Waste Management Division, U.S. Environmental Protection
Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101. Mr.
Gonzalez's telephone number is (913) 551-7041; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action is EPA Proposing in Today's Notice?
II. What is the Background for the Action Proposed by EPA in Today's
Notice?
A. What are GHGs and their sources?
B. What are the general requirements of the PSD program?
[[Page 81180]]
C. What are the CAA requirements to include the PSD program in
the SIP?
D. What actions has EPA taken concerning PSD requirements for
GHG-emitting sources?
E. What is the background for EPA's New Source Review (NSR)
Reform Rule?
III. What is EPA's analysis of Nebraska's proposed SIP revision?
A. What does Nebraska's proposed SIP revision do?
B. Why is approval of Nebraska's proposed SIP revision
consistent with the Clean Air Act?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. What action is EPA proposing in today's notice?
On October 19, 2010, NDEQ submitted draft revisions to the Nebraska
Administrative Code to EPA for approval into the state of Nebraska's
SIP to (1) provide the state with the authority to regulate GHGs under
its PSD program; and (2) establish appropriate emission thresholds and
time-frames for determining which new or modified stationary sources
become subject to Nebraska's PSD permitting requirements for GHG
emissions. These draft revisions submitted on October 19, 2010 revise
existing regulations that NDEQ had amended to adopt portions of EPA's
2002 NSR Reform rules. Because NDEQ had not previously submitted these
amendments, on November 19, 2010, NDEQ submitted revisions to the
Nebraska Administrative Code to EPA for approval into the state of
Nebraska's SIP that adopt portions of the 2002 NSR Reform rules. The
combination of the October 19, 2010 submittal and the November 19, 2010
submittal will be referred to as the submissions.
With respect to Nebraska's GHG revisions, the thresholds and time-
frames are consistent with the ``PSD and Title V Greenhouse Gas
Tailoring Final Rule'' (75 FR 31514) hereafter referred to as the
``Tailoring Rule.'' Final approval of Nebraska's submissions into the
SIP would make Nebraska's SIP adequate with respect to PSD requirements
for GHG-emitting sources. Furthermore, final approval of Nebraska's
submissions into the SIP would 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 when PSD requirements begin applying
to GHGs on January 2, 2011. Finally, final approval of Nebraska's
submissions into the SIP would update the SIP to reflect Nebraska's
adoption of portions of EPA's 2002 NSR Reform rules. Pursuant to
section 110(k)(3) and 110(l) of the CAA, EPA is proposing to approve
this revision into the Nebraska SIP.\1\
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\1\ In today's proposal, EPA is also soliciting public comment
on whether it should initially only approve the revisions related to
GHGs into the Nebraska SIP in this rulemaking, and address the
revisions related to NSR Reform in a subsequent final action. Under
this alternative, Nebraska SIP-approved rules that are applicable to
the State's authority to regulate GHG would stem from the provisions
of EPA's Federal PSD rules as of July 1, 1997, in conjunction with
Nebraska's revised regulations which change the definition of ``NSR
regulated pollutant'' to provide NDEQ with the authority to regulate
GHGs.
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Due to the fact that the proposed rule revision relating to GHGs is
not yet state-effective, on September 30, 2010, Nebraska requested that
EPA ``parallel process'' this portion of the revisions. Under this
procedure, the EPA Regional Office works closely with the state while
developing new or revised regulations. Generally, the state submits a
copy of the proposed regulation or other revisions to EPA before
conducting its public hearing. EPA reviews this proposed state action
and prepares a notice of proposed rulemaking. EPA publishes this notice
of proposed rulemaking in the Federal Register and solicits public
comment in approximately the same time frame during which the state is
holding its public hearing. The state and EPA thus provide for public
comment periods on both the state and the Federal actions in parallel.
After Nebraska submits the formal state-effective rule and SIP
revision request (including a response to all public comments raised
during the state's public participation process), EPA will prepare a
final rulemaking notice for the SIP revision. If changes are made to
the state's proposed rule after EPA's notice of proposed rulemaking,
such changes must be acknowledged in EPA's final rulemaking action. If
the changes are significant, then EPA may be obliged to re-propose the
action. In addition, if the changes render the SIP revision not
approvable, EPA's re-proposal of the action would be a disapproval of
the revision.
II. What is the background for the action proposed by EPA in today's
notice?
Today's proposed action on the Nebraska SIP relates to four
distinct Federal rulemaking actions. The first rulemaking is EPA's
``Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule,'' Final Rule (the Tailoring Rule). 75 FR 31514 (June 3,
2010). The second rulemaking is EPA's ``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,'' Final Rule (GHG SIP Call), which was signed
by the EPA Administrator on December 1, 2010 (see http://www.epa.gov/nsr/documents/20101201finalrule.pdf). The third rulemaking is EPA's
``Action to Ensure Authority to Issue Permits Under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Federal Implementation Plan,'' Proposed Rule, 75 FR 53883
(September 2, 2010) (GHG proposed FIP), which serves as a companion
rulemaking to EPA's GHG SIP Call, and which EPA has stated it intends
to finalize for certain states as soon as December 23, 2010. The fourth
rulemaking is EPA's ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR): Baseline Emissions
Determination, Actual-to-Future-Actual Methodology, Plantwide
Applicability Limitations, Clean Units, Pollution Control Projects,''
Final Rule, 67 FR 80186 (December 31, 2002) (NSR Reform), which revised
the applicability of the PSD requirements. A summary of each of these
rulemakings is described below.
In the first rulemaking, the Tailoring Rule, EPA established
appropriate GHG emission thresholds for determining the applicability
of PSD requirements to GHG-emitting sources. In the second rulemaking,
the GHG SIP Call, EPA issued a finding that the EPA-approved PSD
programs in 13 states (including Nebraska) are substantially inadequate
to comply with CAA requirements because they do not apply PSD
requirements to GHG-emitting sources. For each of these states, EPA
required the state (through a ``SIP Call'') to revise its SIP as
necessary to correct such inadequacies. EPA imposed an expedited
schedule for these states, in most cases, to submit their corrective
SIP revision, in light of the fact that as of January 2, 2011, certain
GHG-emitting sources will become subject to the PSD requirements and,
without an approved SIP or Federal Implementation Plan (FIP) in place
in the state--which would authorize the State or EPA to act as the
permitting authority--may not be able to obtain a PSD permit in order
to construct or modify. In the third rulemaking, the proposed GHG FIP,
EPA is proposing a FIP to apply in any state that is unable to submit,
by its deadline, a corrective SIP revision. In the fourth rulemaking,
NSR Reform, EPA promulgated certain revisions to the
[[Page 81181]]
PSD program to, among other things, provide administrative flexibility
while retaining or enhancing environmental benefits of the permitting
program.
Nebraska has submitted a proposed SIP revision to make the SIP
adequate with respect to federal PSD requirements for GHG-emitting
sources. This SIP revision puts in place the GHG emission thresholds
for PSD applicability set forth in EPA's Tailoring Rule, thereby
ensuring that smaller GHG sources emitting less than these thresholds
will not be subject to applicable GHG permitting requirements as of
January 2, 2011. The proposed SIP revision also makes other changes to
the PSD program consistent with NSR Reform.
Below is a brief overview of GHGs and GHG-emitting sources, the CAA
PSD program, minimum SIP elements for a PSD program, and EPA's recent
actions regarding GHG permitting. Following this section, EPA
discusses, in sections III and IV, the relationship between the
proposed Nebraska SIP revision and EPA's other national rulemakings as
well as EPA's analysis of Nebraska's SIP revision.
A. What are GHGs and their sources?
A detailed explanation of GHGs, climate change and the impact on
health, society, and the environment is included in EPA's technical
support document for EPA's GHG endangerment finding final rule
(Document ID No. EPA-HQ-OAR-2009-0472-11292 at http://www.regulations.gov). The endangerment finding rulemaking is discussed
later in this rulemaking. A summary of the nature and sources of GHGs
is provided below.
GHGs trap the Earth's heat that would otherwise escape from the
atmosphere into space and form the greenhouse effect that helps keep
the Earth warm enough for life. GHGs are naturally present in the
atmosphere and are also emitted by human activities. Human activities
are intensifying the naturally occurring greenhouse effect by
increasing the amount of GHGs in the atmosphere, which is changing the
climate in a way that endangers human health, society, and the natural
environment.
Some GHGs, such as carbon dioxide (CO2), are emitted to
the atmosphere through natural processes as well as human activities.
Other gases, such as fluorinated gases, are created and emitted solely
through human activities. The well-mixed GHGs of concern directly
emitted by human activities include CO2, methane
(CH4), nitrous oxide (N2O), hydrofluorocarbons
(HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride
(SF6), hereafter referred to collectively as ``the six well-
mixed GHGs,'' or, simply, GHGs. Together these six well-mixed GHGs
constitute the ``air pollutant'' upon which the GHG thresholds in EPA's
Tailoring Rule are based. These six gases remain in the atmosphere for
decades to centuries where they become well-mixed globally in the
atmosphere. When they are emitted more quickly than natural processes
can remove them from the atmosphere, their concentrations increase,
thus increasing the greenhouse effect.
In the U.S., the combustion of fossil fuels (e.g., coal, oil, gas)
is the largest source of CO2 emissions and accounts for 80
percent of the total GHG emissions by mass. Anthropogenic
CO2 emissions released from a variety of sources, including
through the use of fossil fuel combustion and cement production from
geologically stored carbon (e.g., coal, oil, and natural gas) that is
hundreds of millions of years old, as well as anthropogenic
CO2 emissions from land-use changes such as deforestation,
perturb the atmospheric concentration of CO2, and the
distribution of carbon within different reservoirs readjusts. More than
half of the energy-related emissions come from large stationary sources
such as power plants, while about a third come from transportation. Of
the six well-mixed GHGs, four (CO2, CH4,
N2O, and HFCs) are emitted by motor vehicles. In the U.S.,
industrial processes (such as the production of cement, steel, and
aluminum), agriculture, forestry, other land use, and waste management
are also important sources of GHGs.
Different GHGs have different heat-trapping capacities. The concept
of Global Warming Potential (GWP) was developed to compare the heat-
trapping capacity and atmospheric lifetime of one GHG to another. The
definition of a GWP for a particular GHG is the ratio of heat trapped
by one unit mass of the GHG to that of one unit mass of CO2
over a specified time period. When quantities of the different GHGs are
multiplied by their GWPs, the different GHGs can be summed and compared
on a carbon dioxide equivalent (CO2e) basis. For example,
CH4 has a GWP of 21, meaning each ton of CH4
emissions would have 21 times as much impact on global warming over a
100-year time horizon as 1 ton of CO2 emissions. Thus, on
the basis of heat-trapping capability, 1 ton of CH4 would
equal 21 tons of CO2e. The GWPs of the non-CO2
GHGs range from 21 (for CH4) up to 23,900 (for
SF6). Aggregating all GHGs on a CO2e basis at the
source level allows a facility to evaluate its total GHG emissions
contribution to global warming based on a single metric.
B. What are the general requirements of the PSD program?
1. Overview of the PSD Program
The PSD program is a preconstruction review and permitting program
applicable to new major stationary sources and major modifications at
existing stationary sources. The PSD program applies in areas that are
designated ``attainment'' or ``unclassifiable'' for a national ambient
air quality standard (NAAQS). The PSD program is contained in part C of
title I of the CAA. The ``nonattainment NSR'' program applies in areas
not in attainment of a NAAQS or in the Ozone Transport Region, and it
is implemented under the requirements of part D of title I of the CAA.
Collectively, EPA commonly refers to these two programs as the major
NSR program. The governing EPA rules are generally contained in 40 CFR
51.165, 51.166, 52.21, 52.24, and part 51, Appendices S and W. There is
no NAAQS for CO2 or any of the other well-mixed GHGs, nor
has EPA proposed any such NAAQS; therefore, unless and until EPA takes
further such action, the nonattainment NSR program does not apply to
GHGs.
The applicability of PSD to a particular source must be determined
in advance of construction or modification and is pollutant-specific.
The primary criterion in determining PSD applicability for a proposed
new or modified source is whether the source is a ``major emitting
facility,'' based on its estimated potential emissions of regulated
pollutants within the meaning of CAA section 169(1), that either
constructs or undertakes a modification. EPA has implemented these
requirements in its regulations, which use somewhat different
terminology than the CAA does, for determining PSD applicability.
a. Major Stationary Source
Under EPA's regulations, PSD applies to a ``major stationary
source,'' which is defined as any source belonging to a specified list
of 28 source categories that emits or has the potential to emit 100 tpy
or more of any air pollutant or any other source type that emits or has
the potential to emit any air pollutant in amounts equal to or greater
than 250 tpy. 40 CFR 51.166(a)(7)(i), 51.166(b)(1)(i). We refer to
these levels as the 100/250-tpy thresholds. A new source with a
potential to emit (PTE) at or above the applicable ``major stationary
source threshold'' is subject to major NSR. These limits originate from
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section 165(a)(1) of the CAA, which applies PSD to any ``major emitting
facility''; and CAA section 169(l), which defines the term to include
any source that emits or has a PTE of 100 or 250 tpy, depending on the
source category. EPA's regulations have revised the terminology, by
applying PSD to any ``major stationary source,'' and have interpreted
PSD applicability more narrowly by defining that term to include a
source that emits at least one ``regulated NSR pollutant,'' 40 CFR
51.166(b)(1)(i)(a). The regulations define that term, in turn, to
include pollutants regulated under specified provisions of the CAA; and
to, as a catch-all category, ``[a]ny pollutant that otherwise is
subject to regulation under the [CAA].'' Id. at 51.166(b)(49)(iv). This
catch-all category will include GHGs on January 2, 2011, under our
interpretation of the term ``subject to regulation under the [CAA],''
as discussed in EPA's recently issued memorandum entitled,
``Reconsideration of Interpretation of Regulations that Determine
Pollutants Covered by Clean Air Act Permitting Programs.'' 75 FR 17004
(April 2, 2010).
b. Major Modifications
Under EPA regulations, PSD also applies to existing sources that
undertake a ``major modification,'' which occurs when: (1) There is a
physical change in, or change in the method of operation of, a ``major
stationary source''; (2) the change results in a ``significant''
emissions increase of a pollutant subject to regulation (equal to or
above the significance level that EPA has set for the pollutant in 40
CFR 51.166(b)(23)(i)); and (3) there is a ``significant net emissions
increase'' of a pollutant subject to regulation that is equal to or
above the significance level 40 CFR 51.166(b)(23)(i)). Significance
levels, which EPA has promulgated for criteria pollutants and certain
other pollutants, represent a de minimis contribution to air quality
problems. When EPA has not set a significance level for a regulated NSR
pollutant, PSD applies to an increase of the pollutant in any amount
(that is, in effect, the significance level is treated as zero).
2. General Requirements for PSD
This section provides a very brief summary of the main requirements
of the PSD program. One principal requirement is that a new major
source or major modification must apply best available control
technology (BACT), which is determined on a case-by-case basis taking
into account, among other factors, the cost effectiveness of the
control and energy and environmental impacts. EPA has developed a
``top-down'' approach for BACT review, which involves a decision
process that includes identification of all available control
technologies, elimination of technically infeasible options, ranking of
remaining options by control and cost effectiveness, and then selection
of BACT. Under PSD, once a source is determined to be major for any
regulated NSR pollutant, a BACT review is performed for each pollutant
that exceeds its PSD significance level as part of new construction or
for modification projects at the source, where there is a significant
increase and a significant net emissions increase of such pollutant.\2\
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\2\ EPA notes that the PSD program has historically operated in
this fashion for all pollutants--when new sources or modifications
are ``major,'' PSD applies to all pollutants that are emitted in
significant quantities from the source or project. This rule does
not alter that for sources or modifications that are major due to
their GHG emissions.
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In addition to performing BACT, the source must analyze impacts on
ambient air quality to assure that sources do not cause or contribute
to violation of any NAAQS or PSD increments and must analyze impacts on
soil, vegetation, and visibility. In addition, sources or modifications
that would impact Class I areas (e.g., national parks) may be subject
to additional requirements to protect air quality related values
(AQRVs) that have been identified for such areas. Under PSD, if a
source's proposed project may impact a Class I area, the Federal Land
Manager is notified and is responsible for evaluating a source's
projected impact on the AQRVs and recommending either approval or
disapproval of the source's permit application based on anticipated
impacts. There are currently no NAAQS or PSD increments established for
GHGs, and therefore these PSD requirements would not apply for GHGs,
even when PSD is triggered for GHGs. However, if PSD is triggered for a
GHG-emitting source, all regulated NSR pollutants that the new source
emits in significant amounts would be subject to PSD requirements.
Therefore, if a facility triggers PSD for non-GHG pollutants for which
there are established NAAQS or increments, the air quality, additional
impacts, and Class I requirements would apply to those pollutants.
Pursuant to existing PSD requirements, the permitting authority
must provide notice of its preliminary decision on a source's
application for a PSD permit and must provide an opportunity for
comment by the public, industry, and other interested persons. After
considering and responding to comments, the permitting authority must
issue a final determination on the construction permit. Usually PSD
permits are issued by a state or local air pollution control agency
that has its own authority to issue PSD permits under a permit program
that has been approved by EPA for inclusion in its SIP. In some areas,
EPA has delegated its authority to issue PSD permits under federal
regulations to the state or local agency. In other areas, EPA issues
the permits under its own authority.
C. What are the CAA requirements to include the PSD program in the SIP?
The CAA contemplates that the PSD program be implemented in the
first instance by the states and requires that states include PSD
requirements in their SIPs. CAA section 110(a)(2)(C) requires that--
Each implementation plan * * * shall * * * include a program to
provide for * * * regulation of the modification and construction of
any stationary source within the areas covered by the plan as
necessary to assure that national ambient air quality standards are
achieved, including a permit program as required in part C * * * of
this subchapter.
CAA section 110(a)(2)(J) requires that--
Each implementation plan * * * shall * * * meet the applicable
requirements of * * * part C of this subchapter (relating to
significant deterioration of air quality and visibility protection).
CAA section 161 provides that--
Each applicable implementation plan shall contain emission
limitations and such other measures as may be necessary, as
determined under regulations promulgated under this part [C], to
prevent significant deterioration of air quality for such region * *
* designated * * * as attainment or unclassifiable.
These provisions, read in conjunction with the PSD applicability
provisions--which, as noted above, apply, by their terms, to ``any air
pollutant,'' and which EPA has, through regulation, interpreted more
narrowly as any ``NSR regulated pollutant''--and read in conjunction
with other provisions, such as the BACT provision under CAA section
165(a)(4), mandate that SIPs include PSD programs that are applicable
to, among other things, any air pollutant that is subject to
regulation, including, as discussed below, GHGs on and after January 2,
2011.\3\
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\3\ In the Tailoring Rule, EPA noted that commenters argued,
with some variations, that the PSD provisions applied only to NAAQS
pollutants, and not GHG; and EPA responded that the PSD provisions
apply to all pollutants subject to regulation, including GHG. See 75
FR31560-62 (June 3, 2010). EPA maintains its position that the PSD
provisions apply to all pollutants subject to regulations, and the
Agency incorporates by reference the discussion of this issue in the
Tailoring Rule.
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[[Page 81183]]
A number of states do not have PSD programs approved into their
SIPs. In those states, EPA's regulations at 40 CFR 52.21 govern, and
either EPA or the state acting as EPA's delegatee serves as the
permitting authority. On the other hand, most states have PSD programs
that have been approved into their SIPs, and these states implement
their PSD programs and act as the permitting authority. Nebraska has a
SIP-approved PSD program.
D. What actions has EPA taken concerning PSD requirements for GHG-
emitting sources?
1. What are the Endangerment Finding, the Light Duty Vehicle Rule, and
the Johnson Memo Reconsideration?
By notice dated December 15, 2009, pursuant to CAA section 202(a),
EPA issued, in a single final action, two findings regarding GHGs that
are commonly referred to as the ``Endangerment Finding'' and the
``Cause or Contribute Finding.'' ``Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section 202(a) of the Clean Air
Act,'' 74 FR 66496. In the Endangerment Finding, the Administrator
found that six long-lived and directly emitted GHGs--CO2,
CH4, N2O, HFCs, PFCs, and SF6--may
reasonably be anticipated to endanger public health and welfare. In the
Cause or Contribute Finding, the Administrator ``define[d] the air
pollutant as the aggregate group of the same six * * * greenhouse
gases,'' 74 FR 66536, and found that the combined emissions of this air
pollutant from new motor vehicles and new motor vehicle engines
contribute to the GHG air pollution that endangers public health and
welfare.
By notice dated May 7, 2010, EPA and the National Highway Traffic
Safety Administration published what is commonly referred to as the
``Light-Duty Vehicle Rule'' (LDVR), which for the first time
established Federal controls on GHGs emitted from light-duty vehicles.
``Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate
Average Fuel Economy Standards; Final Rule.'' 75 FR 25324. In its
applicability provisions, the LDVR specifies that it ``contains
standards and other regulations applicable to the emissions of six
greenhouse gases,'' including CO2, CH4,
N2O, HFCs, PFCs, and SF6. 75 FR 25686 (40 CFR
86.1818-12(a)).
Shortly before finalizing the LDVR, by notice dated April 2, 2010,
EPA published an interpretation that we call the Johnson Memo
Reconsideration. ``Reconsideration of Interpretation of Regulations
that Determine Pollutants Covered by Clean Air Act Permitting
Programs'', 75 FR 17004. In this action, EPA stated that it would
continue to apply its interpretation that a pollutant is ``subject to
regulation'' only if it is subject to either a provision in the CAA or
regulation adopted by EPA under the CAA that requires actual control of
emissions of that pollutant. EPA added that a pollutant becomes subject
to regulation at the time the first regulatory requirement to control
emissions of that pollutant ``takes effect'' (rather than upon
promulgation or the legal effective date of the regulation containing
such a requirement). In addition, based on the anticipated promulgation
of the LDVR, EPA stated that the GHG requirements of the vehicle rule
would take effect on January 2, 2011, because that is the earliest date
that a 2012 model year vehicle (the first model year in which the
rule's GHG requirements apply) may be introduced into commerce.
2. What is EPA's tailoring rule?
By notice dated June 3, 2010, EPA published what we call the
Tailoring Rule, which was a final rulemaking for the purpose of
relieving overwhelming permitting burdens that would, in the absence of
the rule, fall on permitting authorities and sources. 75 FR 31514. EPA
accomplished this by tailoring the applicability criteria that
determine which GHG emission sources become subject to the PSD program
\4\ of the CAA. In particular, EPA established in the Tailoring Rule a
phase-in approach for PSD applicability and established the first two
steps of the phase-in for the largest GHG-emitters. Additionally, EPA
committed to certain follow-up actions regarding future steps beyond
the first two, discussed in more detail later.\5\
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\4\ The Tailoring Rule also applies to the title V program,
which requires operating permits for existing sources. However,
today's action does not affect Nebraska's title V program. We plan
to take action on Nebraska's title V program in the future.
\5\ EPA adopted the Tailoring Rule after careful consideration
of numerous public comments. On October 27, 2009 (74 FR 55292), EPA
proposed the Tailoring Rule. EPA held two public hearings on the
proposed rule, and received over 400,000 written public comments.
The public comment period ended on December 28, 2009. The comments
provided detailed information that helped EPA understand better the
issues and potential impacts of the Tailoring Rule. The preamble of
EPA's Tailoring Rule describes in detail the comments received and
how some of these comments were incorporated in EPA's fine rule. See
75 FR 31514 for more detail.
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For the first step of the Tailoring Rule, which will begin on
January 2, 2011, PSD requirements will apply to major stationary source
GHG emissions only if the sources are subject to PSD anyway due to
their emissions of non-GHG pollutants. Therefore, in the first step,
EPA will not require sources that newly construct or modify to apply
PSD requirements solely on account of their GHG emissions.
Specifically, for PSD, Step 1 requires that as of January 2, 2011, the
applicable requirements of PSD, most notably, the BACT requirement,
will apply to projects that increase net GHG emissions by at least
75,000 tpy CO2e, but only if the project also significantly
increases emissions of at least one non-GHG pollutant and thereby
trigger PSD anyway.
The second step of the Tailoring Rule, beginning on July 1, 2011,
will phase in additional large sources of GHG emissions. New sources
that emit, or have the potential to emit, at least 100,000 tpy
CO2e will become subject to the PSD requirements. In
addition, existing sources that emit or have the potential to emit at
least 100,000 tpy CO2e and that undertake a modification
that increases net GHG emissions by at least 75,000 tpy CO2e
will also be subject to PSD requirements. For both steps, EPA notes
that if sources or modifications exceed these CO2e-adjusted
GHG triggers, they are not covered by permitting requirements unless
their GHG emissions also exceed the corresponding mass-based triggers
in tpy.
EPA believes that the costs to the sources and the administrative
burdens to the permitting authorities of PSD permitting will be
manageable at the levels in these initial two steps and that it would
be administratively infeasible to subject additional sources to PSD
requirements at those times. However, EPA also intends to issue a
supplemental notice of proposed rulemaking in 2011, in which the Agency
will propose or solicit comment on a third step of the phase-in that
would include more sources, beginning on July 1, 2013. In the Tailoring
Rule, EPA established an enforceable commitment that the Agency will
complete this rulemaking by July 1, 2012, which will allow for 1 year's
notice before Step 3 would take effect.
In addition, EPA committed to explore streamlining techniques that
may well make the permitting programs much more efficient to administer
for GHGs, and that therefore may allow their expansion to smaller
sources. EPA expects that the initial streamlining techniques will take
several years to develop and implement.
[[Page 81184]]
In the Tailoring Rule, EPA also included a provision, that no
source with emissions below 50,000 tpy CO2e, and no
modification resulting in net GHG increases of less than 50,000 tpy
CO2e, will be subject to PSD permitting before at least 6
years (i.e., April 30, 2016). This is because EPA has concluded that at
the present time the administrative burdens that would accompany
permitting sources below this level would be so great that even with
the streamlining actions that EPA may be able to develop and implement
in the next several years, and even with the increases in permitting
resources that EPA can reasonably expect the permitting authorities to
acquire, it would be impossible to administer the permit programs for
these sources until at least 2016.
As EPA explained in the Tailoring Rule, the threshold limitations
are necessary because without them, PSD would apply to all stationary
sources that emit or have the potential to emit more than 100 or 250
tons of GHG per year beginning on January 2, 2011. This is the date
when EPA's recently promulgated LDVR takes effect, imposing control
requirements for the first time on CO2 and other GHGs. If
this January 2, 2011, date were to pass without the Tailoring Rule
being in effect, PSD requirements would apply to GHG emissions at the
100/250 tpy applicability levels provided under a literal reading of
the CAA as of that date. From that point forward, a source owner
proposing to construct any new major source that emits at or higher
than the applicability levels (and which therefore may be referred to
as a ``major'' source) or modify any existing major source in a way
that would increase GHG emissions would need to obtain a permit under
the PSD program that addresses these emissions before construction or
modification could begin.
Under these circumstances, many small sources would be burdened by
the costs of the individualized PSD control technology requirements and
permit applications that the PSD provisions, absent streamlining,
require. Additionally, state and local permitting authorities would be
burdened by the extraordinary number of these permit applications,
which are orders of magnitude greater than the current inventory of
permits and would vastly exceed the current administrative resources of
the permitting authorities. Permit gridlock would result since the
permitting authorities would likely be able to issue only a tiny
fraction of the permits requested.
In the Tailoring Rule, EPA adopted regulatory language codifying
the phase-in approach. As explained in that rulemaking, many state,
local and tribal area programs will likely be able to immediately
implement the approach without rule or statutory changes by, for
example, interpreting the term ``subject to regulation'' that is part
of the applicability provisions for PSD permitting. EPA has requested
permitting authorities to confirm that they will follow this
implementation approach for their programs, and if they cannot, then
EPA has requested that they notify the Agency so that we can take
appropriate follow-up action to narrow federal approval of their
programs before GHGs become subject to PSD permitting on January 2,
2011.\6\ On September 30, 2010, the state of Nebraska provided a letter
to EPA with the requested modification. See the docket for this
proposed rulemaking for a copy of Nebraska's letter.
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\6\ Narrowing EPA's approval will ensure that for federal
purposes, sources with GHG emissions that are less than the
Tailoring Rule's emission thresholds will not be obligated under
federal law to obtain PSD permits during the gap between when GHG
PSD requirements go into effect on January 2, 2011 and when either
(1) EPA approves a SIP revision adopting EPA's tailoring approach,
or (2) if a state opts to regulate smaller GHG-emitting sources, the
state demonstrates to EPA that it has adequate resources to handle
permitting for such sources. EPA expects to finalize the narrowing
action prior to the January 2, 2011 deadline with respect to those
states for which EPA will not have approved the Tailoring Rule
thresholds in their SIPs by that time.
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The thresholds that EPA established are based on CO2e
for the aggregate sum of six GHGs that constitute the pollutant that
will be subject to regulation, which we refer to as GHG.\7\ These gases
are: CO2, CH4, N2O, HFCs, PFCs, and
SF6. Thus, in EPA's Tailoring Rule, EPA provided that PSD
applicability is based on the quantity that results when the mass
emissions of each of these gases is multiplied by the GWP of that gas,
and then summed for all six gases. However, EPA further provided that
in order for a source's GHG emissions to trigger PSD requirements, the
quantity of the GHG emissions must equal or exceed both the
applicability thresholds established in the Tailoring Rule on a
CO2e basis and the statutory thresholds of 100 or 250 tpy on
a mass basis.\8\ Similarly, in order for a source to be subject to the
PSD modification requirements, the source's net GHG emissions increase
must exceed the applicable significance level on a CO2e
basis and must also result in a net mass increase of the constituent
gases combined.
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\7\ The term ``greenhouse gases'' is commonly used to refer
generally to gases that have heat-trapping properties. However, in
this notice, unless noted otherwise, we use it to refer specifically
to the pollutant regulated in the LDVR.
\8\ The relevant thresholds are 100 tpy for title V, and 250 tpy
for PSD, except for 28 categories listed in EPA regulations for
which the PSD threshold is 100 tpy.
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3. What is the GHG SIP Call and the proposed GHG FIP?
On December 1, 2010, the EPA Administrator signed the final GHG SIP
Call. In that action--along with the companion GHG FIP, which EPA
proposed by notice dated September 2, 2010 and expects to finalize for
some states on December 23, 2010--EPA took steps to ensure that in the
13 states that do not have authority to issue PSD permits to GHG-
emitting sources at present, either the state or EPA will have the
authority to issue such permits by January 2, 2011 or soon thereafter.
EPA explained that although for most states, either the state or EPA is
already authorized to issue PSD permits for GHG-emitting sources as of
that date, these 13 states have EPA-approved PSD programs that do not
include GHG-emitting sources and therefore do not authorize these
states to issue PSD permits to such sources. Therefore, EPA issued a
finding that these 13 states' SIPs are substantially inadequate to
comply with CAA requirements. Accordingly, and as part of the same
action, EPA also issued a SIP Call to require a SIP revision that
applies their SIP PSD programs to GHG-emitting sources. EPA also
established a SIP submittal deadline. In the proposed SIP call, EPA had
stated that the deadline could range from as little as three weeks
after the final SIP call was signed to as long as 12 months after the
final SIP call was signed, and that each affected state was authorized
to indicate to EPA that it did not object to a deadline on the earlier
end of that range. In the final SIP call, EPA established deadlines
that ranged, for the various states, from December 23, 2010 (three
weeks after signature) to December 1, 2011 (12 months after signature),
based, in general, on each state's preference. In the companion GHG FIP
rulemaking, EPA proposed a FIP that would give EPA authority to apply
EPA's PSD program to GHG-emitting sources in any state that is unable
to submit a corrective SIP revision by its deadline.
Nebraska was one of the states for which EPA proposed and finalized
the SIP Call. The state's comments regarding the proposed SIP call,
submitted September 30, 2010, are included in the docket for this
rulemaking. In the SIP call, EPA established a SIP submittal deadline
for Nebraska of March 1, 2011, in accordance with Nebraska's statement
[[Page 81185]]
in that letter that ``Nebraska does not object to EPA's establishment
of a deadline of March 1, 2011 for submittal of Nebraska's corrective
SIP, although we are expeditiously working for an earlier submittal.''
In addition, in the SIP call rulemaking, EPA stated certain
requirements that the corrective SIP revision must meet, which are that
the corrective SIP revision must--
(i) apply the SIP PSD program to GHG-emitting sources;
(ii) define GHGs as the same pollutant to which the Light-Duty
Vehicle Rule \9\ (LDVR) applies, that is, a single pollutant that is
the aggregate of the group of six gases (carbon dioxide
(CO2), methane (CH4), nitrous oxide
(N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs),
and sulfur hexafluoride (SF6)); and
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\9\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
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(iii) either limit PSD applicability to GHG-emitting sources by
adopting the applicability thresholds included in the Tailoring Rule or
adopt lower thresholds and show that the state has adequate personnel
and funding to administer and implement those lower thresholds.
GHG SIP Call, at 12-13. In addition, if the corrective SIP revision
adopts the Tailoring Rule thresholds, then it must either adopt the
CO2e metric and use short tons (as opposed to metric tons)
for calculating GHG emissions in order to implement those thresholds,
or assure that its approach is at least as stringent as under the
Tailoring Rule, so that the state does not exclude more sources than
under the Tailoring Rule. See id. at 96.
E. What is the background for EPA's New Source Review (NSR) Reform
rule?
The 2002 NSR Reform rules made changes to five areas of the NSR
programs (concerning both PSD and nonattainment NSR). In summary, the
2002 rules: (1) Provide a new method for determining baseline actual
emissions; (2) adopt an actual-to-projected-actual methodology for
determining whether a major modification has occurred; (3) allow major
stationary sources to comply with plantwide applicability limits (PALs)
to avoid having a significant emission increase that triggers the
requirements of the major NSR program; (4) provide a new applicability
provision for emissions units that are designated clean units; and (5)
exclude pollution control projects (PCPs) from the definition of
physical change or change in the method of operation.
After the 2002 NSR Reform rules were finalized and effective,
various petitioners challenged numerous aspects of the 2002 NSR Reform
rules, along with portions of EPA's 1980 NSR rules (45 FR 5276 August
7, 1980). On June 24, 2005, the Court of Appeals for the District of
Columbia issued a decision on the challenges to the 2002 NSR Reform
Rules. New York v. United States, 413 F.3d 3 (DC Cir. 2005). In
summary, the Court vacated portions of the rules pertaining to clean
units and pollution control projects, remanded a portion of the rules
regarding exemption from recordkeeping, e.g., 40 CFR 52.21(r)(6) and 40
CFR 51.166(r)(6), and let stand the other provisions included as part
of the 2002 NSR Reform rules.
III. What is EPA's analysis of Nebraska's proposed SIP revision?
A. What does Nebraska's proposed SIP revision do?
In the submissions, Nebraska proposed a SIP revision to its GHG
construction permit related regulations and submitted its proposal to
EPA for parallel processing and eventual approval as the corrective SIP
revision in anticipation of EPA's SIP call. If and when EPA approves
this SIP revision, Nebraska will have authority to issue PSD permits to
GHG-emitting sources, and thereby assure that those sources will be
able to construct or undertake modifications after January 1, 2011. In
addition, this SIP revision establishes the Tailoring Rule thresholds
for determining which stationary sources and modification projects
become subject to permitting requirements for GHG emissions under the
PSD program. Without these Tailoring Rule thresholds, PSD requirements
would apply, as of January 2, 2011, at the 100- or 250-tpy levels
provided under the CAA. This would greatly increase the number of
required permits, would impose undue costs on small sources, and would
overwhelm Nebraska's permitting resources and severely impair the
function of the program.
Specifically, Nebraska's proposed SIP revision includes changes to
Chapter 1 of Title 129 of the Nebraska Administrative Code--
Definitions. These revisions update Nebraska's air regulations by
providing the state the authority to regulate GHGs and aligning the
thresholds for GHG permitting applicability with those specified in the
Tailoring Rule. The proposed SIP revisions also include a change to
Chapter 5 of Title 129 of the Nebraska Administrative Code--Operating
Permits--When Required. This revision allows sources to limit their
potential to emit in order to become a synthetic minor source.
The proposed SIP revision also adopts those portions of the NSR
Reform rules which were not vacated or remanded by the Court, and
includes changes to Chapter 2 of Title 129 of the Nebraska
Administrative Code--Definition of Major Source, Chapter 14 of Title
129 of the Nebraska Administrative Code--Permits: Public Participation,
Chapter 15 of Title 129 of the Nebraska Administrative Code--Permit
Revisions; Reopening for Cause, Chapter 17 of Title 129 of the Nebraska
Administrative Code--Construction Permits--When Required, and Chapter
19 of Title 129 of the Nebraska Administrative Code--Prevention of
Significant Deterioration of Air Quality. These changes adopt portions
of the 2002 NSR Reform rules. These revisions have already been adopted
and are effective at the state level. Thus, unlike the Tailoring Rule
revisions where the state is in the process of adopting the proposed
revisions, these rules are not subject to parallel processing.
Nebraska's proposed SIP revision includes the 2002 NSR Reform
provisions for determining baseline actual emissions, adopting actual-
to-projected actual methodology for determining whether a major
modification has occurred, and allowing plantwide applicability limits
(PALs). Nebraska's proposed SIP revision does not include the 2002 NSR
Reform provisions relating to clean units, pollution control projects
(PCPs), and reasonable possibility recordkeeping provisions. In
addition, Nebraska's submittal does not include a change to the named
source category list in Chapter 2, which changed the designation of
``chemical processing plants'' to exclude certain ethanol production
facilities. Therefore, this proposed action does not propose to approve
into the SIP EPA's ``ethanol rule'' revision promulgated in May 2007.
EPA is proposing in today's action to simultaneously approve
Nebraska's proposed SIP revisions relating to GHGs and NSR Reform. In
the alternative, EPA is also soliciting public comment on whether it
should initially only approve the SIP revisions related to GHGs in this
rulemaking, and address the proposed SIP revisions related to the NSR
Reform provisions in a subsequent final action. Under this alternative,
Nebraska's SIP-approved rules that are applicable to the State's
authority to regulate GHG would stem from the provisions of EPA's
Federal PSD rules as of July 1, 1997, in conjunction with Nebraska's
revised regulations which change the definition
[[Page 81186]]
of ``NSR regulated pollutant'' to provide NDEQ with the authority to
regulate GHGs.
B. Why is approval of Nebraska's proposed SIP revision consistent with
the Clean Air Act?
With respect to the GHG part of the SIP submission, Nebraska has
received a SIP call because its PSD program does not apply to GHGs, and
as a result, Nebraska is required to submit, by March 1, 2010, a SIP
revision that applies PSD to GHGs and does so either at the Tailoring
Rule thresholds or at lower thresholds and, if the latter, then
Nebraska is required to demonstrate that it has adequate resources for
implementation. In its letter dated September 30, 2010, referenced
above, Nebraska notified EPA that the state is in the process of
revising its regulation (the subject of this proposed action) to
provide this authority. It will do so by updating the definitions of
``major source'' and ``regulated NSR pollutant'' to explicitly include
GHG as a regulated NSR pollutant. In addition, the Nebraska rules
incorporate the same thresholds and phase-in schedule as the Tailoring
Rule and they adopt the CO2e metric and use of short tons
for determining the thresholds.
EPA has preliminarily determined that this change to Nebraska's
regulation meets the requirements of the SIP call. Thus, this change is
consistent with the CAA and its implementing regulations regarding GHG.
The changes included in this submittal are substantively the same as
EPA's Tailoring Rule, and therefore comply with the requirements of the
SIP call. The Nebraska rules have been formatted to conform to
Nebraska's rule drafting standards, but in substantive content the
rules that address the Tailoring Rule provisions are the same as the
federal rules.
With respect to the NSR Reform part of the proposed SIP revision,
Nebraska's proposed SIP revision tracks the Federal NSR Reform Rules,
and EPA previously determined that the implementation of the Federal
NSR Reform Rules will be environmentally beneficial. (See 68 FR 44620
and 63021). Section 110(k) of the CAA provides that EPA shall approve a
SIP revision as a whole if it meets all the applicable requirements of
the CAA. EPA's Supplemental Analysis for the Federal NSR Reform Rules
estimated that there are likely to be reductions in emissions of
volatile organic compounds (VOC) due to the use of PALs. It is more
difficult to assess the environmental impacts of the actual-to-
projected-actual test and the ``2 in 10'' baseline provisions. The
Supplemental Analysis determined that there is a slight national
environmental benefit brought about by these NSR Reform provisions.
Overall, we expect changes in air quality as a result of implementing
PALs, the actual-to-projected-actual test, and the ``2 in 10'' baseline
provisions in Nebraska to be somewhere between neutral and providing
modest benefits toward air quality improvements. Accordingly, EPA
believes that these changes are consistent with the requirements of
section 110(l).
In addition, the Nebraska NSR Reform rules are, in substantive
content, the same as EPA's December 2002 NSR Reform rule, as it relates
to PALs, the ``actual to projected actual'' test, and the calculation
of baseline actual emissions. As stated previously, Nebraska has not
adopted the other provisions of the federal rule vacated or remanded by
the Court in the New York case.\10\
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\10\ As stated above, EPA is proposing in today's action to
simultaneously approve Nebraska's proposed SIP revisions relating to
GHGs and NSR Reform. In the alternative, EPA is also soliciting
public comment on whether it should initially only approve the SIP
revisions related to GHGs in this rulemaking, and address the
proposed SIP revisions related to the NSR Reform provisions in a
subsequent final action.
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IV. Proposed Action
Pursuant to sections 110(k)(3) and 110(l) of the CAA, EPA is
proposing to approve the state of Nebraska's proposed revisions to the
Nebraska Administrative Code that were submitted to EPA relating to PSD
requirements for GHG-emitting sources. Specifically, Nebraska's
submissions meet the requirements of the GHG SIP Call because they (1)
provide the state of Nebraska with the authority to regulate GHGs under
its PSD program, and (2) establish appropriate emissions thresholds for
determining PSD applicability to new and modified GHG-emitting sources
in accordance with EPA's Tailoring Rule. EPA is also proposing to
approve prior revisions to Nebraska's PSD rule, identified above, which
incorporate portions of EPA's 2002 NSR Reform 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, and with the EPA regulations implementing NSR
Reform.
As noted above, at Nebraska's request, EPA is ``parallel
processing'' this proposed rule revision as it relates to GHGs. After
Nebraska submits the formal state-effective rule revisions (including a
response to all public comments raised during the state's public
participation process), EPA will prepare a final rulemaking notice for
the SIP revision. If changes are made to the state's proposed rule
after EPA's notice of proposed rulemaking, such changes must be
acknowledged in EPA's final rulemaking action. If the changes are
significant, then EPA may be obliged to re-propose the action. In
addition, if these changes render the SIP revision not approvable,
EPA's re-proposal of the action would be a disapproval of the revision.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves the state's law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by the state's law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human
[[Page 81187]]
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 of Nebraska, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, and Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 15, 2010.
William W. Rice,
Acting Regional Administrator, Region 7.
[FR Doc. 2010-32456 Filed 12-23-10; 8:45 am]
BILLING CODE 6560-50-P