80 FR 50199 - Prevention of Significant Deterioration and Title V Permitting for Greenhouse Gases: Removal of Certain Vacated Elements

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 80, Issue 160 (August 19, 2015)

The Environmental Protection Agency (EPA) is amending its Prevention of Significant Deterioration (PSD) and title V regulations to remove from the Code of Federal Regulations portions of those regulations that were initially promulgated in 2010 and that the Court of Appeals for the District of Columbia Circuit (D.C. Circuit) specifically identified as vacated in the April 10, 2015, amended judgment, Coalition for Responsible Regulation v. EPA. This action is exempt from notice-and-comment rulemaking because it is ministerial in nature.

[Federal Register Volume 80, Number 160 (Wednesday, August 19, 2015)]
[Rules and Regulations]
[Pages 50199-50203]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-20501]



[[Page 50199]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51, 52, 70, and 71

[EPA-HQ-OAR-2015-0414; FRL-9932-11-OAR]


Prevention of Significant Deterioration and Title V Permitting 
for Greenhouse Gases: Removal of Certain Vacated Elements

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending its 
Prevention of Significant Deterioration (PSD) and title V regulations 
to remove from the Code of Federal Regulations portions of those 
regulations that were initially promulgated in 2010 and that the Court 
of Appeals for the District of Columbia Circuit (D.C. Circuit) 
specifically identified as vacated in the April 10, 2015, amended 
judgment, Coalition for Responsible Regulation v. EPA. This action is 
exempt from notice-and-comment rulemaking because it is ministerial in 
nature.

DATES: This rule is effective on August 19, 2015.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2015-0414. All documents in the docket are 
listed on the www.regulations.gov Web site. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the EPA Docket Center, Room 
3334, EPA William Jefferson Clinton West Building, Room 3334, 1301 
Constitution Avenue NW., Washington, DC 20004. The Public Reading Room 
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744 and the telephone number for the Office of Air and 
Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Questions concerning this final rule 
should be addressed to Mrs. Jessica Monta[ntilde]ez, U.S. Environmental 
Protection Agency, Office of Air Quality Planning and Standards, Air 
Quality Planning Division, (C504-03), Research Triangle Park, NC 27711, 
telephone number (919) 541-3407, email at [email protected].

SUPPLEMENTARY INFORMATION: The information in this section of the 
preamble is organized as follows:

I. Does this action apply to me?
II. Background and Rationale for This Action
III. Final Action
IV. Implementation
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
VII. Judicial Review

I. Does this action apply to me?

    Entities potentially affected by this final action include new and 
modified stationary sources in all industry groups. To determine 
whether your facility would be affected by this action, you should 
carefully examine the applicability criteria in Sec. Sec.  51.166 and 
52.21 of title 40 of the Code of Federal Regulations (CFR). Entities 
potentially affected by this final action also include state, local and 
tribal governments that are authorized to implement the PSD program 
through an EPA-approved State Implementation Plan (SIP) or Tribal 
Implementation Plan (TIP) or that have been authorized to implement the 
PSD program through a delegation of the federal PSD regulations.

II. Background and Rationale for This Action

    Part C of title I of the Clean Air Act (CAA or the Act) contains 
the requirements for a component of the major New Source Review (NSR) 
program known as the PSD program. This program sets forth procedures 
for the preconstruction review and permitting of new and modified 
stationary sources of air pollution locating in areas meeting the 
National Ambient Air Quality Standards (NAAQS) (``attainment'' areas) 
and areas for which there is insufficient information to classify an 
area as either attainment or nonattainment (``unclassifiable'' areas). 
The applicability of PSD to a particular source must be determined in 
advance of construction of a new source or major modification of an 
existing source and is pollutant-specific. Once a source is determined 
to be subject to PSD, among other requirements, the source must 
demonstrate that it will not cause or contribute to a violation of any 
NAAQS or PSD increment,\1\ and that it will use the Best Available 
Control Technology (BACT).\2\ The EPA regulations for the PSD program 
are contained in 40 CFR 51.166 (applicable to air agencies that issue 
permits under EPA-approved SIPs) and 40 CFR 52.21 (the federal PSD 
program applicable to permits issued by the EPA or air agencies that 
have received delegation to implement the federal PSD program).
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    \1\ CAA section 165(a)(3).
    \2\ CAA section 165(a)(4).
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    Title V of the CAA, on the other hand, requires all major 
stationary sources of air pollution and certain other sources to apply 
for a title V operating permit that includes emission limitations and 
other conditions as necessary to assure compliance with applicable 
requirements of the CAA.\3\ The title V operating permit program is a 
vehicle for ensuring that air quality control requirements are 
appropriately applied to facility emission units and for assuring 
compliance with such requirements. The title V program does not 
generally impose new substantive air quality control requirements, but 
does require permits to contain adequate monitoring, recordkeeping, 
reporting and other requirements to assure sources' compliance. The 
title V program is implemented through regulations contained in 40 CFR 
part 70 (for programs implemented by state or local agencies and 
tribes) and 40 CFR part 71 (for programs generally implemented by the 
EPA).
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    \3\ CAA sections 502(a) and 504(a).
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    On June 3, 2010, the EPA published a final rule, known as the 
Tailoring Rule, which phased in permitting requirements for greenhouse 
gas (GHG) emissions from stationary sources under the CAA PSD and title 
V permitting programs (75 FR 31514). Under its interpretation of the 
CAA at the time, the EPA believed the Tailoring Rule was necessary to 
avoid a sudden and unmanageable increase in the number of sources that 
would be required to obtain PSD and title V permits under the CAA 
because the sources emitted or had the potential to emit GHGs above the 
applicable major source and major modification thresholds. In Step 1 of 
the Tailoring Rule, which began on January 2, 2011, the EPA limited 
application of PSD and title V requirements to sources only if they 
were subject to PSD or title V ``anyway'' due to their emissions of 
non-GHG pollutants. These sources are referred to as ``anyway 
sources.'' In Step 2 of the Tailoring Rule, which began on July 1, 
2011, the EPA applied the PSD and title V permitting requirements under 
the CAA to sources that were classified as major, and, thus, required 
to obtain a permit, based solely on their GHG emissions or potential to 
emit GHGs, and to modifications of otherwise major sources that 
required a PSD permit because they increased only GHG emissions above 
the level in the EPA regulations.
    On June 23, 2014, the U.S. Supreme Court issued a decision in 
Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427, addressing 
the application of stationary source permitting requirements to GHGs. 
The U.S. Supreme Court held that the EPA may not treat GHGs as an air 
pollutant for the

[[Page 50200]]

specific purpose of determining whether a source is a major source (or 
a modification thereof) and thus required to obtain a PSD or title V 
permit. However, the U.S. Supreme Court also said that the EPA could 
continue to require that PSD permits, otherwise required based on 
emissions of pollutants other than GHGs pollutants, contain limitations 
on GHG emissions based on the application of GHG BACT. That is, with 
respect to PSD, the ruling effectively upheld PSD permitting 
requirements for GHG emissions under Step 1 of the Tailoring Rule for 
``anyway sources,'' and invalidated PSD permitting requirements for 
Step 2 sources.
    Because the Supreme Court decision affirmed in part and reversed in 
part an earlier decision of the D.C. Circuit in Coalition for 
Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012), on April 
10, 2015, the D.C. Circuit issued an Amended Judgment (Nos. 09-1322, 
10-073, 10-1092 and 10-1167), which reflects the UARG v. EPA Supreme 
Court decision. The D.C. Circuit simultaneously issued its mandate, 
which means that the Coalition Amended Judgment became final and 
effective upon issuance.
    In the Coalition Amended Judgment, the D.C. Circuit ordered that 
the EPA regulations under review (including 40 CFR 51.166(b)(48)(v) and 
40 CFR 52.21(b)(49)(v)) be vacated to the extent they require a 
stationary source to obtain a PSD permit if GHGs are the only pollutant 
(i) that the source emits or has the potential to emit above the 
applicable major source thresholds, or (ii) for which there is a 
significant emissions increase from a modification. The D.C. Circuit 
also ordered that the regulations under review be vacated to the extent 
they require (i) a stationary source to obtain a title V permit solely 
because the source emits or has the potential to emit GHGs above the 
applicable major source thresholds and (ii) the EPA to consider further 
phasing-in the GHG permitting requirements at lower GHG emission 
thresholds (in particular 40 CFR 52.22 and 40 CFR 70.12, 71.13).
    Consistent with the Coalition Amended Judgment, this action removes 
from the PSD regulations certain regulatory provisions that require a 
stationary source to obtain a PSD permit solely on the basis of the 
source's GHG emissions and the regulations that require the EPA to 
consider further phasing-in GHG permitting requirements into the PSD 
and title V permitting programs at lower GHG emissions thresholds. The 
EPA intends to further revise the PSD and title V regulations to fully 
implement the Coalition Amended Judgment in a separate rulemaking. This 
future rulemaking will include revisions to additional definitions in 
the PSD regulations. It will also include further revising the title V 
regulations to remove portions of the title V regulations that were 
vacated in the Coalition Amended Judgment case--those that require a 
stationary source to obtain a title V permit solely because the source 
emits or has the potential to emit GHGs above the applicable major 
source thresholds. Those additional revisions to the PSD and title V 
regulations, although necessary to implement the Coalition Amended 
Judgment, are not purely ministerial in nature and will be addressed in 
this separate notice-and-comment rulemaking, which would give the 
public an opportunity to comment on how the EPA proposes to address 
those portions of the Coalition Amended Judgment.

III. Final Action

    This final action removes from the CFR several provisions of the 
PSD and title V permitting regulations that were originally promulgated 
as part of the Tailoring Rule and that the D.C. Circuit specifically 
identified as vacated in the Coalition Amended Judgment. Because the 
D.C. Circuit specifically identified the Tailoring Rule Step 2 PSD 
permitting requirements in 40 CFR 51.166(b)(48)(v) and 40 CFR 
52.21(b)(49)(v) and the regulations that require the EPA to consider 
further phasing-in the GHG permitting requirements at lower GHG 
emission thresholds in 40 CFR 52.22, 70.12, and 71.13 as vacated, the 
EPA is taking the ministerial action of removing these provisions from 
the CFR.
    Furthermore, and since the D.C. Circuit's Coalition Amended 
Judgment further ordered ``the EPA to take steps to rescind and/or 
revise the applicable provisions of the CFR as expeditiously as 
practicable'' to reflect its vacatur of certain provisions from the 
Tailoring Rule, this rulemaking addresses only those provisions 
specifically identified in the Coalition Amended Judgment that can be 
removed from the CFR without the need for any further changes. In a 
subsequent notice-and-comment rulemaking, the EPA will need to make 
additional changes to its PSD and title V permitting regulations in 
order to fully implement the Coalition Amended Judgment.
    The EPA is taking this action as a final rule without providing an 
opportunity for public comment or a public hearing because the EPA 
finds that the Administrative Procedure Act (APA) good cause exemption 
applies here. In general, the APA requires that general notice of 
proposed rulemaking shall be published in the Federal Register. Such 
notice must provide an opportunity for public participation in the 
rulemaking process. However, the APA also provides a way for an agency 
to directly issue a final rulemaking in certain specific instances. 
This may occur, in particular, when an agency for good cause finds (and 
incorporates the finding and a brief statement of reasons in the rule 
issued) that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest. See 5 U.S.C. 
553(b)(3)(B). The EPA has determined that it is not necessary to 
provide a public hearing or an opportunity for public comment on this 
action because the removal of the affected PSD and title V Tailoring 
Rule provisions from the CFR is a necessary ministerial act. The D.C. 
Circuit specifically identified as vacated the PSD and title V 
regulations this rule removes, and ordered that the EPA take steps to 
rescind and/or revise the applicable provisions of the CFR as 
expeditiously as practicable. The EPA no longer has the authority to 
require any source to obtain a PSD or title V permit based solely on 
the source having GHG emissions above applicable thresholds. Thus, EPA 
may not implement the vacated provisions at 40 CFR 51.166(b)(48)(v) and 
52.21(b)(49)(v) that applied PSD to this population of sources. 
Further, the EPA is no longer required to take the actions specified in 
the vacated regulations at 40 CFR 52.22, 70.12, and 71.13 to consider 
further phasing in GHG PSD and title V permitting requirements at lower 
GHG emissions thresholds. Therefore, removing the affected regulatory 
text simply implements the decision of the Supreme Court and D.C. 
Circuit and it would serve no useful purpose to provide an opportunity 
for public comment or a public hearing on this issue.
    In addition, notice-and-comment would be contrary to the public 
interest because it would unnecessarily delay the removal from the CFR 
of the Tailoring Rule Step 2 PSD permitting provisions that the Supreme 
Court held were invalid and the regulations that require the EPA to 
consider further phasing-in the GHG permitting requirements for lower 
GHG emissions thresholds in 40 CFR 52.22, 70.12, and 71.13 that the 
D.C. Circuit's Coalition Amended Judgment specifically identified as 
vacated. Such delay could result in confusion on the part of the

[[Page 50201]]

regulated industry and state, local and tribal air agencies about how 
the D.C. Circuit's decision affects the PSD and title V regulations as 
well as PSD permitting. Promulgation of this rule soon after the D.C. 
Circuit decision serves to clarify that sources are no longer required 
to obtain PSD permits under the preconstruction permitting regulations 
associated with Step 2 of the Tailoring Rule and that the EPA will not 
be required under 40 CFR 52.22, 70.12, and 71.13 to take further steps 
to consider further phasing in PSD and title V permitting requirements 
at lower GHG emissions thresholds. Given the substantial costs to the 
owner/operator of projects associated with delays and uncertainty, it 
is in the public interest for the EPA to amend the CFR without delay. 
Furthermore, and as stated previously, the D.C. Circuit's Coalition 
Amended Judgment ordered the EPA to take steps to undertake these 
revisions as expeditiously as practicable.
    For these reasons, the EPA finds good cause to issue a final 
rulemaking pursuant to section 553 of the APA, 5 U.S.C. 553(b)(3)(B). 
The requirements of CAA section 307(d), including the requirement for 
public comment and hearing on proposed rulemakings, do not apply to 
this action because 5 U.S.C. 553(b)(3)(B) applies. In addition, this 
rule relieves a restriction on construction of some stationary sources 
and therefore is not subject to the requirement for a 30-day delay in 
effective date. 5 U.S.C. 553(d)(1). Moreover, the agency finds that the 
problems outlined above regarding the effects of delaying issuance of 
the rule also provide good cause for not delaying its effective date. 5 
U.S.C. 553(d)(3). Accordingly, the requirement for a delay in effective 
date does not apply and the rule will take effect upon publication in 
the Federal Register. 5 U.S.C. 553(d).

IV. Implementation

    The D.C. Circuit's vacatur of the Tailoring Rule Step 2 PSD 
permitting requirements in 40 CFR 51.166(b)(48)(v) and 40 CFR 
52.21(b)(49)(v) and the provisions that required further action to 
consider phasing-in GHG permitting requirements into the PSD and title 
V programs at lower GHG emission thresholds at 40 CFR 52.22, 70.12, and 
71.13 means that these provisions can no longer be relied upon by the 
EPA, permit applicants or permitting authorities as a basis for issuing 
PSD permits. Further, this means that the EPA will not be required to 
take the actions specified in the regulations at 40 CFR 52.22, 70.12, 
and 71.13 to consider further phasing in GHG PSD and title V permitting 
requirements at lower GHG emissions thresholds.
    Permit reviewing authorities with EPA-approved SIPs containing any 
or all of the affected provisions previously allowed by 40 CFR 
51.166(b)(48)(v) may request to remove their corresponding Tailoring 
Rule Step 2 provisions as soon as feasible, which may be in conjunction 
with the next otherwise planned SIP revision. Permit reviewing 
authorities also have the option to retain the Tailoring Rule Step 2 
permitting requirements solely as a requirement of state law, but these 
requirements will not be approved as part of their federally-
enforceable SIP. As we explained in a memorandum issued by the agency 
on July 24, 2014, titled, ``Next Steps and Preliminary Views on the 
Application of Clean Air Act Permitting Programs to Greenhouse Gases 
Following the Supreme Court's Decision in UARG v. EPA'' (Preliminary 
Views Memo),\4\ we again note that the ``[EPA does] not read the [U.S.] 
Supreme Court decision to preclude states from retaining permitting 
requirements for sources of GHG emissions that apply independently 
under state law even where those requirements are no longer required 
under federal law.''
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    \4\ http://epa.gov/nsr/documents/20140724memo.pdf.
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    With regard to PSD Step 2 permits already issued, the Preliminary 
Views Memo explained that the EPA ``will no longer require PSD . . . 
permits for Step 2 sources'' (Preliminary Views Memo at 2) and that the 
EPA expected ``to provide additional views in the future with respect 
to Step 2 sources that had already obtained a PSD permit . . .'' 
(Preliminary Views Memo at 4). The EPA provided additional views 
regarding EPA-issued Step 2 PSD permits \5\ when it issued two 
memoranda on December 19, 2014. In the first memorandum issued by the 
Office of Air and Radiation (OAR) and titled, ``Next Steps for 
Addressing EPA-Issued Step 2 Prevention of Significant Deterioration 
Greenhouse Gas Permits and Associated Requirements'' (OAR Next Steps 
Memo),\6\ the EPA explained that it intended to complete a rulemaking 
``authorizing the rescission of Step 2 PSD permits.'' In the second 
memorandum, which was issued by the Office of Enforcement and 
Compliance Assurance (OECA) and titled, ``No Action Assurance Regarding 
EPA-Issued Step 2 Prevention of Significant Deterioration Permits and 
Related Title V Requirements Following Utility Air Regulatory Group v. 
Environmental Protection Agency'' (OECA No Action Assurance Memo),\7\ 
OECA issued a narrowly tailored No Action Assurance for sources with 
EPA-issued Step 2 PSD permits. The OECA No Action Assurance Memo 
establishes that the EPA will exercise its enforcement discretion not 
to pursue enforcement of the terms and conditions relating to GHGs in a 
source's EPA-issued Step 2 PSD permit, and for related GHG terms and 
conditions that are contained in the source's title V permit, if any, 
until 11:59 p.m. EDT, September 30, 2016. The No Action Assurance 
ceases to apply to a source once its EPA-issued Step 2 PSD permit is 
rescinded, and, if applicable, its title V permit is accordingly 
revised, whichever is later.
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    \5\ For purposes of this rule, the phrases ``EPA-issued PSD 
permits that were issued under Step 2 of the Tailoring Rule'' and 
``EPA-issued Step 2 PSD permits'' are intended to have the same 
meaning. The use of the term ``EPA-issued'' in both phrases includes 
PSD permits issued by the EPA as well as permits issued by state or 
local reviewing authorities exercising federal law authority 
delegated by an EPA Regional Office under 40 CFR 52.21(u).
    \6\ http://www.epa.gov/nsr/ghgdocs/Step2PermitRescissionMemoFinal_12-19-14.pdf.
    \7\ http://epa.gov/nsr/ghgdocs/OECANoActionAssuranceMemo_December192014.pdf.
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    Consistent with the plan described in the OAR Next Steps Memo, the 
EPA completed the rulemaking that allows for rescission of Step 2 
permits. ``Prevention of Significant Deterioration Permitting for 
Greenhouse Gases: Providing Option for Rescission of EPA-Issued 
Tailoring Rule Step 2 Prevention of Significant Deterioration Permits'' 
(80 FR 26183; May 7, 2015). This rule provides a mechanism for the EPA 
and delegated reviewing authorities to rescind EPA-issued Step 2 PSD 
permits in response to requests from applicants who can demonstrate 
that they are eligible for permit rescission and as further discussed 
in that rule. EPA received no comments on this rule, and it is now in 
effect. Sources with questions on PSD permitting obligations arising 
from Step 2 PSD permits issued by state, local or tribal permitting 
authorities under permitting programs approved into the state or tribal 
implementation plans should review the governing statutory provisions 
and the provisions in the applicable state or tribal implementation 
plans to determine how to address these Step 2 permits and consult with 
the EPA, states and tribes, as necessary.
    In the case of sources that trigger PSD based on emissions of 
pollutants other than GHG (``anyway sources''), the PSD BACT 
requirement continues to apply to GHG emissions from such sources. This 
rulemaking does not change Sec. Sec.  51.166(j), 51.166(b)(48)(iv), 
52.21(j),

[[Page 50202]]

or 52.21(b)(48)(iv) of EPA's regulations, which remain in effect. Under 
these provisions, the BACT requirement applies to GHG emissions from 
``anyway sources'' when a new source emits or has the potential to emit 
75,000 tons per year (tpy) or more of GHG on a carbon dioxide 
equivalent (``CO2e'') basis. When an anyway source is 
modified, under these provisions, the BACT requirement applies to GHGs 
if (1) the modification is otherwise subject to PSD for a pollutant 
other than GHG; and (2) the modification results in a GHG emissions 
increase and a net GHG emission increase equal to or greater than 
75,000 tpy or more on a CO2e basis and greater than zero on 
a mass basis.
    With respect to title V, the D.C. Circuit's Amended Judgment in 
Coalition means that the provisions at 40 CFR 70.12 and 71.13 
addressing further consideration of phasing-in of title V permitting 
program requirements at lower GHG emission thresholds are no longer in 
effect. The obligations that they contain for the EPA to further study 
and take further action to consider regulating GHGs at lower GHG 
emissions thresholds under the title V program no longer exist.

V. Environmental Justice Considerations

    This action removes sections and paragraphs of the PSD and title V 
GHG Tailoring Rule regulations that the D.C. Circuit specifically 
identified as vacated in the Coalition Amended Judgment. In accordance 
with the changes made by this action, permit applicants are no longer 
required to request PSD permits if GHGs are the only pollutant (i) that 
the source emits or has the potential to emit above the major source 
thresholds, or (ii) for which there is a significant emissions increase 
and a significant net emissions increase from a modification. In 
addition, the EPA will not be required to take the actions specified in 
the regulations at 40 CFR 52.22, 70.12, and 71.13 to consider further 
phasing in GHG PSD and title V permitting requirements at lower GHG 
emissions thresholds. Therefore, this action itself does not compel any 
specific permit action that will affect the fair treatment and 
meaningful involvement of all people. Rather, it makes clear that a 
portion of the Coalition Amended Judgment is efficiently implemented 
and permit applicants are no longer required to submit PSD permit 
applications if GHGs are the only pollutant that the sources emits 
above the applicable major source thresholds.

VI. Statutory and Executive Order Reviews

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

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

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 2060-0003. To the extent this rule has any substantive 
effect, it relieves regulatory burdens by removing regulations that 
purport to require permit applicants to request PSD permits if GHGs are 
the only pollutant emitted by the new source or modification to an 
existing source above the applicable major source thresholds and 
regulations that required the EPA to consider further phasing-in the 
GHG permitting requirements at lower GHG emission thresholds. This 
action is taken in light of the D.C. Circuit's Coalition Amended 
Judgment that vacated those regulations.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. To the extent this rule has any 
substantive effect, it relieves regulatory burdens by removing 
regulations that purport to require permit applicants to request PSD 
permits if GHGs are the only pollutant emitted by the new source or 
modification to an existing source above the applicable major source 
thresholds and regulations that required the EPA to consider further 
phasing-in the GHG permitting requirements at lower GHG emission 
thresholds. This action is taken in light of the D.C. Circuit's 
Coalition Amended Judgment that vacated those regulations. We have 
therefore concluded that this action will relieve regulatory burden for 
all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

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

E. Executive Order 13132: Federalism

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

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

    This action does not have tribal implications, as specified in 
Executive Order 13175. Although the Tribal Air Rule (76 FR 38748, July 
1, 2011) under the CAA gives tribes the opportunity to request and be 
granted delegation of the federal PSD program found at 40 CFR 52.21 to 
issue PSD permits, there are no tribal agencies currently implementing 
the federal PSD permitting program. As a result, the removal of the PSD 
provisions that the D.C. Circuit vacated will not affect any tribal 
reviewing authorities and any tribally-owned sources with EPA-issued 
Step 2 PSD permits have the discretion to request the EPA to rescind 
their permit. In addition, the D.C. Circuit vacatur of the requirements 
for the EPA to consider further phasing in GHG permitting requirements 
into the PSD and title V programs at lower GHG emission thresholds 
provides relief to tribally-owned sources that could have been subject 
to GHG permitting regulations at lower GHG emission thresholds if the 
EPA would have taken steps to apply GHG permitting requirements to such 
sources at such thresholds. Thus, Executive Order 13175 does not apply 
to this action.

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

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

[[Page 50203]]

because it does not concern an environmental health risk or safety 
risk.

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

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

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations. The results of this evaluation are contained 
in the section V titled, ``Environmental Justice Considerations'' for 
this action.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. The CRA allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice-and-comment rulemaking procedures are 
impracticable, unnecessary or contrary to the public interest (5 U.S.C. 
808(2)). The EPA has made a good cause finding for this rule as 
discussed in the Final Action section of this rulemaking, including the 
basis for that finding.

L. Determination Under Section 307(d)

    Pursuant to CAA section 307(d)(1)(V), the Administrator determines 
that this action is subject to provisions of section 307(d). Section 
307(d) establishes procedural requirements specific to rulemaking under 
the CAA. Section 307(d)(1)(V) provides that the provisions of section 
307(d) apply to ``such other actions as the Administrator may 
determine.''

VII. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the U.S. Court of Appeals for the D.C. 
Circuit within 60 days from August 19, 2015. 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) of the CAA).

List of Subjects

40 CFR Parts 51 and 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Greenhouse gases, Incorporation by reference, Intergovernmental 
relations, Lead, National ambient air quality standards, New source 
review, Nitrogen dioxide, Ozone, Particulate matter, Preconstruction 
permitting, Prevention of significant deterioration, Reviewing 
authorities, Sulfur oxides, Tailoring rule, Volatile organic compounds.

40 CFR Parts 70 and 71

    Environmental protection, Air pollution control, Carbon monoxide, 
Greenhouse gases, Intergovernmental relations, Lead, National ambient 
air quality standards, Nitrogen dioxide, Operating permits, Ozone, 
Particulate matter, Permitting authorities, Sulfur oxides, Tailoring 
rule, Title V, Volatile organic compounds.

    Dated: August 12, 2015.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, Chapter I of the 
Code of Federal Regulations is amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

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1. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart I--Review of New Sources and Modifications


Sec.  51.166  [Amended]

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2. Section 51.166 is amended by removing paragraph (b)(48)(v).

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart A--General Provisions


Sec.  52.21  [Amended]

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4. Section 52.21 is amended by removing paragraph (b)(49)(v).


Sec.  52.22  [Removed]

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5. Section 52.22 is removed.

PART 70--STATE OPERATING PERMIT PROGRAMS

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6. The authority citation for part 70 continues to read as follows:

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


Sec.  70.12  [Removed]

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7. Section 70.12 is removed.

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

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8. The authority citation for part 71 continues to read as follows:

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


Sec.  71.13  [Removed]

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9. Section 71.13 is removed.
[FR Doc. 2015-20501 Filed 8-18-15; 8:45 am]
 BILLING CODE 6560-50-P