49404 Federal Register / Vol. 77, No. 159 / Thursday, August 16, 2012 / Proposed Rules 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR Part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

2. Add § 165.917 to read as follows: 

§ 165.917 Safety Zones; Annual Swim 

Events in the Captain of the Port Detroit 

Zone. 

(a) Location. The following locations 

are designated as safety zones: All 

waters of Lake Erie within positions 41– 

29′–00.04′′ N 082–40′–48.16′′ W to 41– 

29′–19.28′′ N 082–40′–38.97′′ W to 41– 

29′–02.51′′ N 082–40′′–20.82′′ W to 41– 

28′′–45.52′′ N 082–40′–35.75′′ W then 

following the shoreline to the point of 

origin. In the event that weather 

requires changing locations an alternate 

race course site will encompass all 

waters of Lake Erie, Sandusky Bay, 

Cedar Point, OH extending outward 100 

yards on either side of a line running 

between 41–28′–38.59′′ N 082–41′– 

10.51′′ W and 41–28′–17.25′′ N 082–40′– 

54.09′′ W running adjacent to the Cedar 

Point Marina. These coordinates are 

North American Datum of 1983 (NAD 

83). 

(b) Enforcement period. These safety 

zones will be enforced two consecutive 

mornings during the first or second 

week in September. Exact dates and 

times will be determined annually and 

published annually in the Federal 

Register via a Notice of Enforcement. 

(c) Definitions. The following 

definitions apply to this section: 

(1) ‘‘On-scene Representative’’ means 

any Coast Guard Commissioned, 

warrant, or petty officer designated by 

the Captain of the Port Detroit to 

monitor a safety zone, permit entry into 

the zone, give legally enforceable orders 

to persons or vessels within the zones, 

and take other actions authorized by the 

Captain of the Port. 

(2) ‘‘Public vessel’’ means vessels 

owned, chartered, or operated by the 

United States, or by a State or political 

subdivision thereof. 

(d) Regulations. (1) In accordance 

with the general regulations in § 165.23 

of this part, entry into, transiting, or 

anchoring within this safety zone is 

prohibited unless authorized by the 

Captain of the Port Detroit, or his 

designated representative. 

(2) These safety zones are closed to all 

vessel traffic, excepted as may be 

permitted by the Captain of the Port 

Detroit or his designated representative. 

All persons and vessels must comply 

with the instructions of the Coast Guard 

Captain of the Port or his designated 

representative. Upon being hailed by the 

U.S. Coast Guard by siren, radio, 

flashing light or other means, the 

operator of a vessel shall proceed as 

directed. 

(3) All vessels must obtain permission 

from the Captain of the Port or his 

designated representative to enter, move 

within, or exit the safety zone 

established in this section when this 

safety zone is enforced. Vessels and 

persons granted permission to enter the 

safety zone must obey all lawful orders 

or directions of the Captain of the Port 

or a designated representative. While 

within a safety zone, all vessels must 

operate at the minimum speed 

necessary to maintain a safe course. 

(e) Exemption. Public vessels, as 

defined in paragraph (b) of this section, 

are exempt from the requirements in 

this section. 

(f) Waiver. For any vessel, the Captain 

of the Port Detroit or his designated 

representative may waive any of the 

requirements of this section, upon 

finding that operational conditions or 

other circumstances are such that 

application of this section is 

unnecessary or impractical for the 

purposes of public or environmental 

safety. 

(g) Notification. The Captain of the 

Port Detroit will notify the public that 

the safety zones in this section are or 

will be enforced by all appropriate 

means to the affected segments of the 

public including publication in the 

Federal Register as practicable, in 

accordance with 33 CFR 165.7(a). Such 

means of notification may also include, 

but are not limited to Broadcast Notice 

to Mariners or Local Notice to Mariners. 

The Captain of the Port will issue a 

Broadcast Notice to Mariners notifying 

the public when enforcement of the 

safety zone is cancelled. 

Dated: August 6, 2012. 

J. E. Ogden, 

Captain, U.S. Coast Guard, Captain of the 

Port Detroit. 

[FR Doc. 2012–20092 Filed 8–15–12; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2011–0453, FRL–9616–1] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Vermont: Prevention of Significant 

Deterioration; Greenhouse Gas 

Permitting Authority and Tailoring Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a revision to the Vermont State 

Implementation Plan (SIP) relating to 

regulation of Greenhouse Gases (GHGs) 

under Vermont’s Prevention of 

Significant Deterioration (PSD) program. 

This revision was submitted by 

Vermont, through the Vermont 

Department of Environmental 

Conservation (VT DEC), Air Pollution 

Control Division on February 14, 2011. 

It is intended to align Vermont’s 

regulations with EPA’s ‘‘Prevention of 

Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule.’’ EPA is 

proposing to approve the revision 

because the Agency has made the 

preliminary determination that the SIP 

revision, already adopted by Vermont as 

a final effective rule, is in accordance 

with the Clean Air Act (CAA or Act) and 

EPA regulations regarding PSD 

permitting for GHGs. The SIP submittal 

also contains proposed amendments to 

several other sections of Vermont’s SIP 

not directly related to GHG permitting 

which EPA is not acting on at this time. 

DATES: Comments must be received on 

or before September 17, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R01– 

OAR–2011–0453, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: 

dahl.donald@epa.govmailto:. 

3. Fax: (617) 918–0657. 

4. Mail: ‘‘Docket Identification 

Number EPA–R01–OAR–2011–0453’’, 

Donald Dahl, U.S. Environmental 

Protection Agency, EPA New England 

Regional Office, Office of Ecosystem 

Protection, 5 Post Office Square—Suite 

100, (Mail code OEP05–2), Boston, MA 

02109–3912. 

5. Hand Delivery or Courier: Deliver 

your comments to: Donald Dahl, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, Office of 

Ecosystem Protection, Air Permits, 


wreier-aviles on DSK7SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 159 / Thursday, August 16, 2012 / Proposed Rules 49405 

1 ‘‘Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in State 

Implementation Plans; Final Rule.’’ 75 FR 82536 

(Dec. 30, 2010). 

2 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 (Dec. 15, 

2009). 

3 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (Apr. 2, 2010). 

4 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

Toxics, and Indoor Programs Unit, 5 

Post Office Square—Suite 100, (mail 

code OEP05–2), Boston, MA 02109– 

3912. Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding legal holidays. 

Instructions: Direct your comments to 

Docket ID No. ‘‘EPA–R01–OAR–2011– 

0453.’’ EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

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 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The 

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 email comment directly 

to EPA without going through 

www.regulations.gov, your email 

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 

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 www.regulations.gov or 

in hard copy at the Office of Ecosystem 

Protection, U.S. Environmental 

Protection Agency, EPA New England 

Regional Office, Office of Ecosystem 

Protection, Air Permits, Toxics, and 

Indoor Programs Unit, 5 Post Office 

Square—Suite 100, Boston, 

Massachusetts. EPA requests that if at 

all possible, you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The Regional Office’s 

official hours of business are Monday 

through Friday, 8:30 to 4:30, excluding 

federal holidays. 

In addition, copies of the state 

submittal and EPA’s technical support 

document are also available for public 

inspection during normal business 

hours, by appointment at the State Air 

Agency; Air Pollution Control Division, 

Agency of Natural Resources, 186 Mad 

River Park, Waitsfield, VT. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Vermont SIP, 

contact Donald Dahl, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, Office of 

Ecosystem Protection, Air Permits, 

Toxics, and Indoor Programs Unit, 5 

Post Office Square—Suite 100, (mail 

code OEP05–2), Boston, MA 02109– 

3912. Mr. Dahl’s telephone number is 

(617) 918–1657; email address: 

dahl.donald@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What action is EPA proposing in this 

document? 

II. What is the background for the action 

proposed by EPA in this document? 

A. GHG-related Actions 

B. Vermont’s Actions 

III. What is EPA’s analysis of Vermont’s SIP 

revision? 

A. Greenhouse Gases 

B. Other Revisions Adopted by Vermont 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 

I. What action is EPA proposing in this 

document? 

On February 14, 2011, the State of 

Vermont submitted a formal revision to 

its State Implementation Plan (SIP). The 

revisions establish thresholds for GHG 

emissions in Vermont’s PSD regulations 

at the same emissions thresholds and in 

the same time-frames as those specified 

by EPA in the ‘‘Prevention of Significant 

Deterioration and Title V Greenhouse 

Gas Tailoring Rule; Final Rule’’ (75 FR 

31514), hereafter referred to as the 

‘‘Tailoring Rule,’’ ensuring that smaller 

GHG sources emitting less than these 

thresholds will not be subject to 

permitting requirements for GHGs that 

they emit. The revisions to the SIP 

clarify the applicable thresholds in the 

Vermont SIP, and address the flaw 

discussed in the ‘‘Limitation of 

Approval of Prevention of Significant 

Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final 

Rule,’’ 75 FR 82536 (December 30, 2010) 

(the ‘‘PSD SIP Narrowing Rule’’). In 

today’s action, pursuant to section 110 

of the CAA, EPA is proposing to 

approve these revisions into the 

Vermont SIP. 

EPA is not proposing to take action on 

various other revisions to Vermont’s 

state implementation plan contained in 

the February 14, 2011 submittal. Those 

are changes to Vermont Air Pollution 

Control Regulations, Chapter 5, Sections 

5–101 (changes to the definitions of 

Emergency use engine, Federal Land 

Manager, and Public Notice), 5–251, 5– 

252, 5–401 (except for 5–401(16)), 5– 

402, 5–404, 5–406, 5–501, and 5–502. 

II. What is the background for the 

action by EPA in this document? 

This section briefly summarizes EPA’s 

recent GHG-related actions that provide 

the background for today’s proposed 

action. More detailed discussion of the 

background is found in the preambles 

for those actions. In particular, the 

background is contained in what we call 

the GHG PSD SIP Narrowing Rule,1 and 

in the preambles to the actions cited 

therein. 

A. GHG-Related Actions 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

distinct from one another, establish the 

overall framework for today’s proposed 

action on the Vermont SIP. Four of these 

actions include, as they are commonly 

called, the ‘‘Endangerment Finding’’ 

and ‘‘Cause or Contribute Finding,’’ 

which EPA issued in a single final 

action,2 the ‘‘Johnson Memo 

Reconsideration,’’ 3 the ‘‘Light-Duty 

Vehicle Rule,’’ 4 and the ‘‘Tailoring 

Rule.’’ Taken together and in 

conjunction with the CAA, these actions 

established regulatory requirements for 

GHGs emitted from new motor vehicles 

and new motor vehicle engines; 

determined that such regulations, when 


wreier-aviles on DSK7SPTVN1PROD with PROPOSALS
49406 Federal Register / Vol. 77, No. 159 / Thursday, August 16, 2012 / Proposed Rules 

5Specifically, by notice dated December 13, 2010, 

EPA finalized a ‘‘SIP Call’’ that would require those 

states with SIPs that have approved PSD programs 

but do not authorize PSD permitting for GHGs to 

submit a SIP revision providing such authority. 

‘‘Action To Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call,’’ 75 

FR 77698 (Dec. 13, 2010). EPA has made findings 

of failure to submit that would apply in any state 

unable to submit the required SIP revision by its 

deadline, and finalized FIPs for such states. See, 

e.g., ‘‘Action To Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Failure To Submit State Implementation 

Plan Revisions Required for Greenhouse Gases,’’ 75 

FR 81874 (Dec. 29, 2010); ‘‘Action To Ensure 

Authority To Issue Permits Under the Prevention of 

Significant Deterioration Program to Sources of 

Greenhouse Gas Emissions: Federal Implementation 

Plan,’’ 75 FR 82246 (Dec. 30, 2010). Because 

Vermont’s SIP already authorizes Vermont to 

regulate GHGs once GHGs became subject to PSD 

requirements on January 2, 2011, Vermont was not 

subject to the proposed SIP Call or FIP. 

6 ‘‘Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in State 

Implementation Plans; Final Rule.’’ 75 FR 82536 

(Dec. 30, 2010). 

7Tailoring Rule, 75 FR 31517. 

8SIP Narrowing Rule, 75 FR 82540. 

9 Id. at 82542. 

10 Id. at 82544. 11 Id. at 82540. 

they took effect on January 2, 2011, 

subjected GHGs emitted from stationary 

sources to PSD requirements; and 

limited the applicability of PSD 

requirements to GHG sources on a 

phased-in basis. EPA took this last 

action in the Tailoring Rule, which, 

more specifically, established 

appropriate GHG emission thresholds 

for determining the applicability of PSD 

requirements to GHG-emitting sources. 

PSD is implemented through the SIP 

system. In December 2010, EPA 

promulgated several rules to implement 

the new GHG PSD SIP program. 

Recognizing that some states had 

approved SIP PSD programs that did not 

apply PSD to GHGs, EPA issued a SIP 

call and, for some of these states, a 

Federal Implementation Plan (FIP).5

Recognizing that other states had 

approved SIP PSD programs that do 

apply PSD to GHGs, but that do so for 

sources that emit as little as 100 or 250 

tpy of GHG, and that do not limit PSD 

applicability to GHGs to the higher 

thresholds in the Tailoring Rule, EPA 

issued the GHG PSD SIP Narrowing 

Rule. Under that rule, EPA withdrew its 

approval of the affected SIPs to the 

extent those SIPs covered GHG-emitting 

sources below the Tailoring Rule 

thresholds. EPA based its action 

primarily on the ‘‘error correction’’ 

provisions of CAA section 110(k)(6). 

B. Vermont’s Actions 

On July 22, 2010, Vermont provided 

a letter to EPA, in accordance with a 

request to all States from EPA in the 

Tailoring Rule, with confirmation that 

the State has the authority to regulate 

GHG in its PSD program. The letter also 

confirmed that current Vermont rules 

require regulating GHGs at the existing 

50 tpy threshold, rather than at the 

higher thresholds set in the Tailoring 

Rule. See the docket for this proposed 

rulemaking for a copy of Vermont’s 

letter. 

In the SIP Narrowing Rule, published 

on December 30, 2010, EPA withdrew 

its approval of Vermont’s SIP (among 

other SIPs) to the extent the SIP applies 

PSD permitting requirements to GHG 

emissions from sources emitting at 

levels below those set in the Tailoring 

Rule.6 As a result, Vermont’s current 

approved SIP provides the state with 

authority to regulate GHGs, but only at 

and above the Tailoring Rule thresholds; 

and requires new and modified sources 

to receive a federal PSD permit based on 

GHG emissions only if they emit at or 

above the Tailoring Rule thresholds. 

The basis for this SIP revision is that 

limiting PSD applicability to GHG 

sources to the higher thresholds in the 

Tailoring Rule is consistent with the SIP 

provisions that provide required 

assurances of adequate resources, and 

thereby addresses the flaw in the SIP 

that led to the SIP Narrowing Rule. 

Specifically, CAA section 110(a)(2)(E) 

includes as a requirement for SIP 

approval that States provide ‘‘necessary 

assurances that the State * * * will 

have adequate personnel [and] funding 

* * * to carry out such [SIP].’’ In the 

Tailoring Rule, EPA established higher 

thresholds for PSD applicability to 

GHG-emitting sources on grounds that 

the states generally did not have 

adequate resources to apply PSD to 

GHG-emitting sources below the 

Tailoring Rule thresholds,7 and no 

State, including Vermont, asserted that 

it did have adequate resources to do so.8

In the SIP Narrowing Rule, EPA found 

that the affected states, including 

Vermont, had a flaw in their SIPs at the 

time they submitted their PSD 

programs, which was that the 

applicability of the PSD programs was 

potentially broader than the resources 

available to them under their SIPs.9

Accordingly, for each affected state, 

including Vermont, EPA concluded that 

EPA’s action in approving the SIP was 

in error, under CAA section 110(k)(6), 

and EPA rescinded its approval to the 

extent the PSD program applies to GHGemitting sources below the Tailoring 

Rule thresholds.10 EPA recommended 

that States adopt a SIP revision to 

incorporate the Tailoring Rule 

thresholds, thereby (i) assuring that 

under State law, only sources at or 

above the Tailoring Rule thresholds 

would be subject to PSD; and (ii) 

avoiding confusion under the Federally 

approved SIP by clarifying that the SIP 

applies to only sources at or above the 

Tailoring Rule thresholds.11

III. What is EPA’s analysis of Vermont’s 

SIP revision? 

The regulatory revisions that VT DEC 

submitted on February 14, 2011 

establish thresholds for determining 

which stationary sources and 

modification projects become subject to 

permitting requirements for GHG 

emissions under Vermont’s PSD 

program. The revisions also include 

unrelated changes to other portions of 

the Vermont air permitting regulations. 

Specifically, the submittal includes 

changes to Vermont’s regulations at 

Chapter 5, Air Pollution Control, 

Subchapter I (Definitions), Subchapter II 

(Prohibitions), Subchapter IV 

(Operations and Procedures), and 

Subchapter V (Review of New Air 

Contaminant Sources). 

Vermont is currently a SIP-approved 

state for the PSD program. In a letter 

provided to EPA on July 22, 2010, 

Vermont notified EPA of its 

interpretation that the State currently 

has the authority to regulate GHGs 

under its PSD regulations. The current 

Vermont program (adopted prior to the 

promulgation of EPA’s Tailoring Rule) 

applies to major stationary sources 

(having the potential to emit at least 50 

tpy or more of a regulated NSR 

pollutant) or major modifications 

constructing in areas designated 

attainment or unclassifiable with 

respect to the NAAQS. 

The amendments to Subchapter I that 

EPA is proposing to approve into 

Vermont’s SIP include: new definitions 

of ‘‘Greenhouse Gases’’ and ‘‘Subject to 

Regulation,’’ amendments to the 

definition of ‘‘Major Stationary Source,’’ 

and the addition of a provision 

regarding significance levels of 

greenhouse gases to the definition of 

‘‘Significant.’’ EPA is also proposing to 

approve the classification of certain 

sources of greenhouse gas emissions as 

air contaminant sources in Subchapter 

IV, section 5–401(16). 

A. Greenhouse Gases 

The changes to Vermont’s PSD 

program regulations regarding 

greenhouse gases are in most respects 

substantively the same as the 

amendments to the federal PSD 

regulatory provisions in EPA’s Tailoring 


wreier-aviles on DSK7SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 159 / Thursday, August 16, 2012 / Proposed Rules 49407 

12The Vermont regulation actually refers to ‘‘40 

CFR 51.166(48)(b)’’ [sic]. See Section 5–101 

(definition of ‘‘Subject to Regulation’’). We assume 

this is a clerical error and was intended to refer to 

§ 51.166(b)(48). 

Rule. However, there are several issues 

that we note here. 

First, Vermont submitted as part of its 

SIP revision its entire definition of 

‘‘significant’’ in Section 5–101, not just 

the addition made to address 

greenhouse gases. Vermont’s definition 

of ‘‘significant’’ in Section 5–101 

departs from EPA’s definition of 

‘‘significant’’ at 40 CFR 51.166(b)(23) in 

two ways. On the one hand, Vermont 

provides significance levels for several 

pollutants (asbestos, mercury, 

beryllium, and vinyl chloride) that are 

not listed in the federal regulation. On 

the other hand, Vermont fails to provide 

significance levels for several pollutants 

(particulate matter 2.5 microns or less in 

diameter, municipal waste combustor 

organics, municipal waste combustor 

metals, municipal waste combustor acid 

gases, and municipal solid waste 

landfill emissions) that are listed in the 

federal regulation. In the first case, the 

issue is moot because asbestos, mercury 

compounds, beryllium compounds, and 

vinyl chloride are all listed as hazardous 

air pollutants under Section 112(b) of 

the Clean Air Act, and Section 112(b)(6) 

provides that PSD does not apply to 

hazardous air pollutants listed under 

Section 112. In the case of the other 

pollutants, however, the situation is 

more complex. Vermont’s regulation 

neither specifically provides 

significance levels for these pollutants 

(particulate matter 2.5 microns or less in 

diameter, municipal waste combustor 

organics, municipal waste combustor 

metals, municipal waste combustor acid 

gases, and municipal solid waste 

landfill emissions) nor provides a 

default significance threshold of zero. 

Therefore, Vermont’s regulation fails to 

require application of best available 

control technology for emissions of 

these pollutants at any level—even at 

major source levels. See Section 5– 

502(3)(a)(i)–(ii) (applying control 

technology requirement only to 

emissions that are ‘‘significant’’). 

Despite this flaw, EPA is nonetheless 

proposing approval of Vermont’s SIP 

revision. The revised definition adds a 

significance threshold for ‘‘greenhouse 

gases,’’ which does not exist in the 

currently approved SIP, and the lack of 

significance thresholds for particulate 

matter 2.5 microns or less in diameter, 

municipal waste combustor organics, 

municipal waste combustor metals, 

municipal waste combustor acid gases, 

and municipal solid waste landfill 

emissions is a continuation from the 

currently approved SIP, not a new flaw. 

For that reason, EPA is proposing to 

approve Vermont’s SIP revision as ‘‘SIP 

strengthening.’’ 

Several lesser issues require 

discussion regarding EPA’s proposed 

interpretation of the Vermont 

regulation. First, Vermont defines 

‘‘greenhouse gases’’ in Section 5–101 as 

‘‘carbon dioxide, methane, nitrous 

oxide, hydrofluorocarbons, 

perfluorocarbons, sulfur hexafluoride, 

and any other chemical or physical 

substance emitted into the air that the 

Secretary may reasonably anticipate to 

cause or contribute to climate change.’’ 

This definition does not explicitly state 

whether ‘‘greenhouse gases’’ is an 

aggregate pollutant consisting of six (or 

more) components, cf. 40 CFR 

51.166(b)(48)(i), or six (or more) 

individual gases. However, elsewhere in 

Vermont’s regulations, ‘‘greenhouse 

gases’’ is referred to in a manner 

suggesting the aggregate interpretation. 

See, e.g., Section 5–101 (definition of 

‘‘Major Stationary Source’’) (referring to 

‘‘the air contaminant that is greenhouse 

gases’’). Therefore, EPA proposes to 

interpret the definition of ‘‘greenhouse 

gases’’ in Section 5–101 as an aggregate 

pollutant. 

Second, Vermont incorporates by 

reference EPA’s definition of ‘‘subject to 

regulation’’ at 40 CFR 51.166(b)(48).12

This definition provides that the 

pollutant ‘‘greenhouse gases’’ is subject 

to regulation if ‘‘both a significant 

emissions increase (as calculated using 

the procedures in (a)(7)(iv) of this 

section) and a significant net emissions 

increase (as defined in paragraphs (b)(3) 

and (b)(23) of this section) occur.’’ 40 

CFR 51.166(b)(48)(iii). This, in turn, 

incorporates two different elements of 

the federal PSD regulation: emissions 

increase calculation, and emissions 

increase netting. For non-greenhouse 

gas pollutants, Vermont uses a different 

emissions increase calculation 

methodology, and does not allow for 

netting. However, EPA understands that 

Vermont intends for its greenhouse gas 

permitting requirements to match the 

federal requirements, and consequently 

EPA is proposing to interpret Vermont’s 

definition of ‘‘subject to regulation’’ as 

including the calculation methodology 

specified in the federal regulations. See 

also VT DEC’s Jan. 3, 2011 response to 

comments; response No. 2 (emphasizing 

VT DEC’s ‘‘intent to have the same (and 

not more stringent) permitting 

thresholds for greenhouse gases in 

Vermont as required by federal 

regulations’’), and response No. 8 (‘‘The 

[VT DEC] intends for the federal netting 

and baseline calculation procedures to 

apply for applicability of permitting 

greenhouse gases.’’). Thus, for example, 

an existing Vermont source, in 

determining whether a proposed 

modification’s greenhouse gas emissions 

would be ‘‘subject to regulation,’’ would 

be permitted to use the actual-toprojected-actual applicability test of 40 

CFR 51.166(a)(7)(iv)(c), and to 

incorporate creditable and 

contemporaneous reductions in actual 

emissions in calculating the ‘‘net 

emissions increase.’’ 

Third, in light of the preceding two 

proposed interpretations, it is possible 

that an ambiguity may arise if Vermont 

adds a new component gas to its statedefined ‘‘greenhouse gases’’ pollutant 

but that component gas is not part of the 

federal ‘‘greenhouse gases’’ definition at 

40 CFR 51.166(b)(48)(i). In this 

situation, it may not be clear in any 

given context whether ‘‘greenhouse 

gases’’ in Vermont’s regulations refers to 

‘‘greenhouse gases’’ as defined by EPA 

or as defined by Vermont. This could be 

relevant if, for example, an existing 

source sought to take credit for 

reductions in a state-only gas when 

calculating its net emissions increase of 

greenhouse gases. Since Vermont’s 

definition of ‘‘subject to regulation’’ in 

Section 5–101 includes all of 40 CFR 

51.166(b)(48), it must therefore include 

the federal definition of ‘‘greenhouse 

gases’’ at 40 CFR 51.166(b)(48)(i). 

Therefore, EPA proposes to interpret 

‘‘greenhouse gases’’ in Vermont’s 

regulations as meaning greenhouse 

gases as defined by 40 CFR 

51.166(b)(48)(i) for purposes of the 

‘‘subject to regulation’’ definition and 

any reference elsewhere in Vermont’s 

regulations that specifically references 

the ‘‘subject to regulation’’ definition, 

but as meaning greenhouse gases as 

defined by Section 5–101 for all other 

purposes in Vermont’s SIP. 

Finally, as noted above, the Vermont 

regulation in several places incorporates 

federal regulations by reference. See, 

e.g., Section 5–101 (definition of ‘‘Major 

Stationary Source’’) (referring to ‘‘the 

thresholds in 40 CFR 51.166(b)(1)(i)’’). 

However, these references do not 

specify whether the incorporation by 

reference is intended to be prospective 

(i.e., to incorporate the federal 

regulation as it may be amended from 

time to time, without need for revising 

the state regulation to accommodate 

federal regulatory revisions) or fixed. 

We propose to interpret each 

incorporation by reference of a federal 

regulation as referring to the date of 

adoption of the Vermont regulation, i.e., 

January 24, 2011. 


wreier-aviles on DSK7SPTVN1PROD with PROPOSALS
49408 Federal Register / Vol. 77, No. 159 / Thursday, August 16, 2012 / Proposed Rules 

B. Other Revisions Adopted by Vermont 

Vermont submitted other 

amendments to its SIP which EPA is not 

acting on at this time. These 

amendments include Sections 5–101 

(changes to the definitions of Emergency 

use engine, Federal Land Manager, and 

Public Notice), 5–251 (NOX limits), 5– 

252 (SO2 limits), 5–401(1–15, 17, and 

18) (Classification of Air Contaminant 

Sources), 5–402 (Written Reports When 

Requested), 5–404 (Methods of 

Sampling and Testing of Sources), 5– 

406 (Required Air Modeling), 5–501 

(Review of Construction or Modification 

of Air Contaminant Sources), and 5–502 

(Major Stationary Sources and Major 

Modifications). 

IV. Proposed Action 

Pursuant to section 110 of the CAA, 

EPA is proposing to approve Vermont’s 

February 14, 2011 SIP revision, relating 

to PSD requirements for GHG-emitting 

sources. Specifically, Vermont’s 

February 14, 2011 SIP revision 

establishes appropriate emissions 

thresholds for determining PSD 

applicability to new and modified GHGemitting sources in accordance with 

EPA’s Tailoring Rule. EPA has made the 

preliminary determination that this SIP 

revision is approvable because it is in 

accordance with the CAA and EPA 

regulations regarding PSD permitting for 

GHGs. 

If EPA does approve Vermont’s 

changes to its air quality regulations to 

incorporate the appropriate thresholds 

for GHG permitting applicability into 

Vermont’s SIP, then Section 52.2372(b) 

of 40 CFR part 52, as included in EPA’s 

SIP Narrowing Rule—which codifies 

EPA’s limiting its approval of Vermont’s 

PSD SIP to not cover the applicability of 

PSD to GHG-emitting sources below the 

Tailoring Rule thresholds—is no longer 

necessary. In today’s proposed action, 

EPA is also proposing to amend Section 

52.2372(b) of 40 CFR part 52 to remove 

this unnecessary regulatory language. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, 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 Clean Air Act. 

Accordingly, this proposed action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this 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 Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

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

Dated: August 2, 2012. 

H. Curtis Spalding, 

Regional Administrator, EPA New England. 

[FR Doc. 2012–20140 Filed 8–15–12; 8:45 am] 

BILLING CODE 6560–50–P 


wreier-aviles on DSK7SPTVN1PROD with PROPOSALS