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[Federal Register Volume 81, Number 209 (Friday, October 28, 2016)]
[Rules and Regulations]
[Pages 74923-74925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25992]

[[Page 74923]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0450; FRL-9953-94-Region 6]

Approval and Promulgation of Implementation Plans; Louisiana; 
Prevention of Significant Deterioration Significant Monitoring 
Concentration for Fine Particulates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving two 
revisions to the Louisiana State Implementation Plan (SIP) that revise 
the Louisiana Prevention of Significant Deterioration (PSD) permitting 
program to establish the significant monitoring concentration (SMC) for 
fine particles (PM2.5) at a zero microgram per cubic meter 
(0 [mu]g/m\3\) threshold level consistent with federal permitting 
requirements. The EPA is approving this action under section 110 and 
part C of the Clean Air Act (CAA or Act).

DATES: This rule is effective on December 27, 2016 without further 
notice, unless the EPA receives relevant adverse comment by November 
28, 2016. If the EPA receives such comment, the EPA will publish a 
timely withdrawal in the Federal Register informing the public that 
this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0450, at http://www.regulations.gov or via email to 
wiley.adina@epa.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Adina Wiley, (214) 665-
2115, wiley.adina@epa.gov. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Adina Wiley, 214-665-2115, 
wiley.adina@epa.gov. To inspect the hard copy materials, please 
schedule an appointment with Ms. Adina Wiley or Mr. Bill Deese at 214-
665-7253.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

A. CAA and SIPs

    Section 110 of the CAA requires states to develop and submit to the 
EPA a SIP to ensure that state air quality meets National Ambient Air 
Quality Standards. These ambient standards currently address six 
criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, 
particulate matter, and sulfur dioxide. Each federally-approved SIP 
protects air quality primarily by addressing air pollution at its point 
of origin through air pollution regulations and control strategies. The 
EPA approved SIP regulations and control strategies are federally 
enforceable.

B. Prior Federal Action

    Under Section 165(a) of the CAA, a major source may not commence 
construction unless the source has been issued a permit and has 
satisfied certain requirements. Among those requirements, the permit 
applicant must demonstrate that emissions from construction or 
operation of the facility will not cause, or contribute to, air 
pollution in excess of any increment, NAAQS, or any other applicable 
emission standard of standard of performance. This statutory 
requirement has been incorporated into federal regulations at 40 CFR 
51.166(k)(1). Moreover, to support this analysis, PSD permit 
applications must be supported by air quality monitoring data 
representing air quality in the area affected by the proposed source 
for the 1-year period preceding receipt of the application. This 
statutory requirement has been incorporated into federal regulations at 
40 CFR 51.166(m)(ii)-(iv).
    In 2010, the EPA promulgated regulations for SIPs concerning PSD 
permitting for PM2.5 which included two voluntary screening 
tools: S ignificant impact levels (SILs) and SMC. 75 FR 64864 (October 
20, 2010). The SILs are screening tools that states and local 
permitting authorities with PSD SIPs apply in the issuance of a PSD 
permit to demonstrate that the proposed source's allowable emissions 
will not cause or contribute to a violation of the NAAQS or increment. 
The SMC is a screening technique that has been used to exempt sources 
from the requirement in the CAA to collect preconstruction monitoring 
data for up to 1 year before submitting a permit application in order 
to help determine existing ambient air quality. 78 FR 73699 (December 
9, 2013).
    Sierra Club filed a petition for review of the PSD regulations 
containing the PM2.5 SILs and SMC with the United States 
Court of Appeals for the District of Columbia Circuit (the Court). On 
January 22, 2013, the Court issued an opinion granting a request from 
the EPA to vacate and remand to the EPA portions of the October 20, 
2010, PSD regulations establishing the PM2.5 SIL and further 
vacating the portions of the PSD regulations establishing a 
PM2.5 SMC. See, Sierra Club v. EPA, 706 F.3d 428 (D.C. Cir. 
2013).
    In response to the Court's decision, the EPA amended its 
regulations to remove the affected PM2.5 SIL regulations 
from the federal regulations and to replace the existing 
PM2.5 SMC value with a ``zero'' threshold. 78 FR 73698 
(December 9, 2013). In that rulemaking, the EPA removed the regulatory 
text related to the affected PM2.5 SILs at sections 
51.166(k)(2) and 52.21(k)(2). Although the Court vacated the 
PM2.5 SMC provisions in 40 CFR 51.166(i)(5)(i)(c) and 
52.21(i)(5)(i)(c), the EPA did not remove the affected regulatory text, 
but instead revised the concentration for the PM2.5 SMC 
listed in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero 
micrograms per cubic meter (0 [micro]g/m\3\). Because 40 CFR 
51.166(i)(5)(iii) and 40 CFR 52.21(i)(5)(iii) establish an exemption 
from air monitoring requirements for any pollutant ``not listed in 
paragraph (i)(5)(i),'' the EPA explained that it would not be 
appropriate to remove the reference to PM2.5 in paragraph 
(i)(5)(i). Were the EPA to completely remove PM2.5 from the 
list of pollutants in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) 
of the PSD regulations, PM2.5 would no longer be a listed 
pollutant and the paragraph (iii)

[[Page 74924]]

provision could be interpreted as giving reviewing authorities the 
discretion to exempt permit applicants from the requirement to conduct 
monitoring for PM2.5, in contravention of the Court's 
decision and the CAA. Instead, the EPA revised the concentration listed 
in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms 
per cubic meter (0 [micro]g/m\3\). This means that there is no air 
quality impact level below which a reviewing authority has the 
discretion to exempt a source from the PM2.5 monitoring 
requirements at 40 CFR 52.21(m).

C. Louisiana's Submittals

    On February 27, 2013, Louisiana submitted revisions to its PSD SIP 
at LAC 33:III.509 that adopted provisions substantively identical to 
the EPA PSD SIP's requirement for PM2.5 PSD SMC. 40 CFR 
51.166(i)(5)(i). The February 27, 2013, submittal included other 
revisions to the Louisiana SIP that have been separately approved by 
the EPA on November 5, 2015. See 80 FR 68451. On July 22, 2016, 
Louisiana submitted revisions to its PSD SIP at LAC 33:III.509 to 
revise the previously adopted and submitted PM2.5 SMC at LAC 
33:III.509(I)(5)(a). Louisiana has not adopted or submitted provisions 
addressing the PM2.5 SIL.

II. The EPA's Evaluation

    Our analysis, available in our Technical Support Document (TSD) in 
the rulemaking docket, finds that the State of Louisiana adopted and 
submitted on February 27, 2013, revisions to the Louisiana SIP that 
were substantively consistent with the voluntary exemptions from PSD 
monitoring at 40 CFR 51.166(i)(5)(i) promulgated on October 20, 2010. 
Subsequent to the submittal of these provisions, the Court vacated and 
remanded these provisions to the EPA. On December 9, 2013, we 
promulgated revisions to the PSD SIP rules that replaced the existing 
PM2.5 SMC value with a zero micrograms per cubic meter (0 
[micro]g/m\3\) threshold level at 40 CFR 51.166.
    To address the EPA's December 9, 2013, rulemaking, the State of 
Louisiana submitted further revisions to the Louisiana PSD program on 
July 22, 2016, setting the PM2.5 SMC to zero; effectively 
removing any exemption from pre- and post-construction monitoring under 
the Louisiana PSD SIP.
    Our evaluation of the Louisiana PSD program finds that the adoption 
and revision of the PSD PM2.5 SMC at a zero threshold value 
is consistent with federal PSD permitting provisions for PSD SMCs. We 
further find that the Louisiana PSD program does not provide an 
exemption from the PSD pre- and post-construction monitoring 
requirements for emissions of PM2.5 that are SIP-approved at 
LAC 33:III.509(M) as consistent with federal PSD permitting provisions.

III. Final Action

    We are approving revisions to the Louisiana PSD program into the 
Louisiana SIP that establish the PSD PM2.5 SMC and set the 
SMC to zero micrograms per cubic meter (0 [micro]g/m\3\) consistent 
with federal PSD permitting requirements and the CAA. Specifically, the 
EPA is approving the following revisions to the Louisiana PSD SIP:
     New provisions at LAC 33:III.509(I)(5)(a) adopted on 
December 20, 2012 and submitted on February 27, 2013, establishing the 
PM2.5 SMC;
     Revisions to LAC 33:III.509(I)(5)(a), adopted on March 20, 
2016 and submitted on July 22, 2016 setting the PM2.5 SMC to 
0 [mu]g/m\3\.
    The EPA is publishing this rule without prior proposal because we 
view this as a non-controversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if relevant adverse 
comments are received. This rule will be effective on December 27, 2016 
without further notice unless we receive relevant adverse comment by 
November 28, 2016. If we receive relevant adverse comments, we will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. We will address all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on this action. Any parties 
interested in commenting must do so now. Please note that if we receive 
relevant adverse comment on an amendment, paragraph, or section of this 
rule and if that provision may be severed from the remainder of the 
rule, we may adopt as final those provisions of the rule that are not 
the subject of an adverse comment.

IV. Incorporation by Reference

    In this rule, we are finalizing regulatory text that includes 
incorporation by reference. In accordance with the requirements of 1 
CFR 51.5, we are finalizing the incorporation by reference of the 
revisions to the Louisiana regulations as described in the Final Action 
section above. We have made, and will continue to make, these documents 
generally available electronically through www.regulations.gov and/or 
in hard copy at the EPA Region 6 office.

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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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 health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a

[[Page 74925]]

tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications and will not impose substantial direct 
costs on tribal governments or preempt tribal law as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 27, 2016. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: October 21, 2016.
Ron Curry,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart T--Louisiana

0
2. In Sec.  52.970(c), the table titled ``EPA Approved Louisiana 
Regulations in the Louisiana SIP'' is amended by revising the entry for 
Section 509 to read as follows:

Sec.  52.970  Identification of plan.

* * * * *
    (c) * * *

                             EPA-Approved Louisiana Regulations in the Louisiana SIP
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                                                   State approval
        State citation            Title/subject         date          EPA approval date           Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
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                                          Chapter 5--Permit Procedures
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                                                  * * * * * * *
Section 509...................  Prevention of          03/20/2016  10/28/2016, [Insert     SIP does not include
                                 Significant                        Federal Register        provisions for
                                 Deterioration.                     citation].              permitting of GHGs
                                                                                            as effective on 04/
                                                                                            20/2011 at LAC
                                                                                            33:III.509(B)
                                                                                            definition of
                                                                                            ``carbon dioxide
                                                                                            equivalent
                                                                                            emissions'',
                                                                                            ``greenhouse
                                                                                            gases'', ``major
                                                                                            stationary source'',
                                                                                            and ``significant''.
 
                                                  * * * * * * *
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[FR Doc. 2016-25992 Filed 10-27-16; 8:45 am]
BILLING CODE 6560-50-P
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