2860 Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Proposed Rules 

to disapprove this submittal, no 

sanctions will be triggered. However, if 

this disapproval action is finalized, that 

final action will trigger the requirement 

under section 110(c) that EPA 

promulgate a FIP no later than 2 years 

from the date of the disapproval unless 

the State corrects the deficiency, and 

EPA approves the plan or plan revision 

before EPA promulgates such FIP. 

VI. 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. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves 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 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 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), nor will it impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Particulate 

Matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: January 6, 2015. 

V. Anne Heard, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2015–00870 Filed 1–20–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2014–0796; FRL–9921–75– 

Region 1] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Hampshire; Prevention of Significant 

Deterioration Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the State of New 

Hampshire on November 15, 2012. The 

submittal proposes to ensure that the 

State PSD program is consistent with 

the Final New Source Review (NSR) 

Improvement Rule issued on December 

31, 2002; the Final Rule Governing the 

Implementation of NSR for Fine 

Particulate Matter issued on May 16, 

2008; and the Final Rule to Establish 

Increments, Significant Impact Levels 

(SILs) and a Significant Monitoring 

Concentration (SMC) issued on October 

20, 2010. This action is being taken 

under the Clean Air Act (CAA). 

DATES: Written comments must be 

received on or before February 20, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R01–OAR–2014–0796 by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: mcdonnell.ida@epa.gov. 

3. Fax: (617) 918–0653 

4. Mail: ‘‘Docket Identification 

Number EPA–R01–OAR–2014–0796’’, 

Ida McDonnell, 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. 

5. Hand Delivery or Courier: Deliver 

your comments to: Ida McDonnell, 

Manager, Air Permits, Toxics, and 

Indoor Programs Unit, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, Office of 

Ecosystem Protection, Air Permits, 

Toxics and Indoor Programs Unit, 5 Post 

Office Square—Suite 100, (mail code 

OEP05–2), Boston, MA 02109–3912. 

Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding legal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R01–OAR–2014– 

0796. 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. 


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Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

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 Office of Ecosystem 

Protection, U.S. Environmental 

Protection Agency, EPA New England 

Regional Office, Air Permits, Toxics and 

Indoor Programs Unit, 5 Post Office 

Square—Suite 100, Boston, MA. EPA 

requests that if at all possible, you 

contact the contact listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding legal holidays. 

In addition, copies of the state 

submittal and EPA’s proposed approval 

and technical support document are 

also available for public inspection 

during normal business hours, by 

appointment at the Air Resources 

Division, New Hampshire Department 

of Environmental Services, 6 Hazen 

Drive, P.O. Box 95, Concord, NH 03302– 

0095. 

FOR FURTHER INFORMATION CONTACT: 

Brendan McCahill, 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, telephone 

number (617) 918–1652, Fax number 

(617) 918–0652, email 

mccahill.brendan@EPA.GOV. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Organization of this document. The 

following outline is provided to aid in 

locating information in this preamble. 

Table of Contents 

I. What action is EPA proposing in this 

document? 

II. What is the background for New 

Hampshire’s November 15, 2012 SIP 

submittal? 

A. What revisions did EPA make in 

December 31, 2002? 

B. What revisions did EPA make in May 

16, 2008? 

C. What revisions did EPA make in 

October 20, 2010? 

III. What is EPA’s analysis of New 

Hampshire’s proposed SIP revision? 

A. What requirements did EPA use to 

approve New Hampshire’s SIP 

submittal? 

B. What provisions did NH DES include in 

its November 15, 2012 SIP submittal? 

C. How did the New Hampshire November 

15, 2012 SIP submittal meet the new and 

existing PSD program requirements? 

D. How did NH DES demonstrate that the 

definition for ‘‘Baseline Actual 

Emissions’’ is as stringent as the 

corresponding federal definition? 

1. Description of State and Federal 

definition for ‘‘Baseline Actual 

Emissions’’ 

2. Description of Demonstration 

IV. How did New Hampshire’s November 15, 

2012 SIP submittal comply with the 

relevant legal decisions issued by the 

United States Court of Appeals for the 

District of Columbia and the United 

States Supreme Court effecting PM2.5

SMC and greenhouse gas requirements, 

respectively? 

A. PM2.5 SMC 

B. Greenhouse Gas Requirements 

V. What action is EPA taking? 

VI. Statutory and Executive Order Reviews 

I. What action is EPA proposing in this 

document? 

On November 15, 2012, the New 

Hampshire Department of 

Environmental Services (NH DES) 

submitted a proposed SIP revision 

establishing the State’s PSD Program 

under PART Env-A 619, ‘‘Prevention of 

Significant Deterioration.’’ The revision 

incorporated by reference into state law, 

at PART Env-A 619, the federal PSD 

Program codified in the July 1, 2011 

edition of 40 CFR 52.21, and the State 

requested that EPA approve the revision 

into the State’s SIP-approved PSD 

Program. The State’s PSD Program 

includes provisions to implement the 

December 31, 2002 Final NSR 

Improvement Rules (67 FR 80185), the 

May 16, 2008 Final Rules Governing the 

Implementation of NSR for Fine 

Particulate Matter (73 FR 28321), and 

the October 20, 2010 Final Rule to 

Establish Increments, SILs and SMC for 

Fine Particulate Matter (75 FR 64863). 

The State’s PSD program also includes 

provisions EPA first approved on 

October 28, 2002 (67 FR 65710) and that 

continue to apply. 

After reviewing the submittal, EPA 

proposes to approve the NH DES’s 

November 15, 2012 submittal to 

establish PART Env-A 619 ‘‘Prevention 

of Significant Deterioration’’ into the 

SIP. PART Env-A 619 will supersede all 

other versions of the PSD program 

currently approved in New Hampshire’s 

SIP. EPA’s proposed approval is 

contingent on a letter dated December 9, 

2014 from NH DES. As described in the 

letter, the November 15, 2012 submittal 

establishes an SMC level for PM2.5. SMC 

is a screening tool used to determine if 

a source must submit pre-construction 

air quality monitoring data prior to 

constructing or modifying a facility. The 

U.S. Court of Appeals for the District of 

Columbia vacated provisions 

promulgated as part of the October 20, 

2010 rule to add PM2.5 SMCs to SIPapproved PSD programs. On December 

9, 2013 (78 FR 73698), EPA issued a 

Final Rule that revised the existing 

PM2.5 SMC listed in sections 40 CFR 

51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to 

zero micrograms per cubic meter (0 mg/ 

m3). The December 9, 2014 letter 

amends the NH DES request that EPA 

approve the November 15, 2012 SIP 

submittal consistent with the Court’s 

decision. The NH DES now considers 

the SIP submittal to include a PM2.5

SMC of 0 mg/m3 and by the December 

9, 2014 letter, confirms that it will not 

apply the PM2.5 SMC of 4 mg/m3 to any 

pending or future PSD permit actions. 

II. What is the background for New 

Hampshire’s November 15, 2012 SIP 

submittal? 

New Hampshire’s proposal to adopt 

the July 1, 2011 edition of 40 CFR 52.21 

into its SIP-approved PSD program 

involves the addition of several major 

changes made to the State’s PSD 

program since EPA first approved the 

state’s PSD program on October 28, 

2002. More details regarding these rule 

changes are found in the respective final 

rulemakings and are summarized below. 

The November 15, 2012 SIP submittal 

also retains the major PSD program 

provisions first approved into the SIP on 

October 28, 2002 without alteration or 

revision. These provisions include 

requirements to apply Best Available 

Control Technology (BACT) and to 

conduct an air quality analysis 

demonstrating any new emission 

increase does not violate applicable 

NAAQS or increment. 

A. What revisions did EPA make in 

December 31, 2002? 

EPA issued a Final Rule entitled, 

‘‘Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source 

Review (NSR): Baseline Emissions 

Determination, Actual-to-Future-Actual 

Methodology, Plantwide Applicability 

Limitations, Clean Units, Pollution 

Control Projects’’ (67 FR 80185, 

December 31, 2002). The rule made a 

number of changes to the applicability 

requirements of the Federal PSD 

Program including the following: 

• A new definition of ‘‘actual 

emission baseline’’ that defines an 


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emission unit’s pre-modification actual 

emissions; 

• New ‘‘Applicability Procedures’’ 

under 40 CFR 51.166(a)(7) that define 

the test method used to calculate the 

emission increase from the construction 

or modification of new or existing 

emission units; 

• The expansion of the ‘‘Actual-toProjected Actual’’ applicability test to 

determine if projects at non-Electric 

Utility Steam Generating Units (nonEUSGU) are major modifications. The 

pre-2002 federal NSR regulations 

restricted the Actual-to-Projected Actual 

applicability test to EUSGUs only; 

• New procedures requiring sources 

to monitor, keep records and report 

emissions emitted from projects at 

existing emission units if there is a 

reasonable possibility (as defined in 40 

CFR 51.166(r)(6)) that a project that is 

not a major modification may result in 

a significant emission increase; and 

• The addition of the optional 

‘‘Plantwide Applicability Test’’ (PAL) 

for all source categories. 

The Federal Register (FR) notification 

for the NSR Improvement rule gave 

State permitting agencies until January 

2, 2006 to submit SIP amendments that 

implemented the new federal revisions 

or, if a state permitting agency did not 

submit any SIP amendments or 

submitted amendments that differed 

from the federal rules, a demonstration 

showing that its existing permitting 

program or amended permitting 

program is at least as stringent as EPA’s 

revised program. In addition, federal 

regulations governing SIP-approved PSD 

programs at 40 CFR 51.166 ‘‘Prevention 

of Significant Deterioration of Air 

Quality’’ require that all state plans use 

the specific definitions as promulgated 

by EPA. Deviations from the federal 

wording for each definition will be 

approved only if the State specifically 

demonstrates that the submitted 

definition is more stringent than, or at 

least as stringent in all respects as, the 

corresponding federal definition. 

The notification for the Final NSR 

Improvement rule at http://

www.epa.gov/NSR/fr/20021231_

80186.pdf provides a full description of 

the NSR Improvements, the 

requirements for SIP submittals, and the 

final amended Federal rule for SIPapproved PSD programs at 40 CFR 

51.166 ‘‘Prevention of Significant 

Deterioration of Air Quality.’’ 

B. What revisions did EPA make in May 

16, 2008? 

EPA issued a Final Rule governing the 

implementation of NSR for PM2.5. (73 

FR 28321, May 16, 2008). The rule 

includes the new major source 

applicability threshold level for major 

sources of PM2.5. A source is defined as 

a major source and subject to the PM2.5

PSD requirements if the source is 

included as one of the specific twentyeight source categories listed in the 

current Federal PSD regulations and 

emits 100 or more tons per year (tpy) of 

a regulated pollutant or not included on 

the list and emits 250 or more tpy of a 

regulated pollutant. 

The rule identified the following list 

of pollutants that contribute to PM2.5

formation and a description of whether 

the pollutant as a precursor to PM2.5 is 

regulated under the PSD program: 

• Direct emissions of PM2.5— 

regulated under the PSD program; 

• Sulfur dioxide (SO2)—regulated 

under the PSD program; 

• Nitrogen oxides (NOX)—regulated 

under the PSD program unless state 

demonstrates that NOX emissions are 

not a significant contributor to the 

formation of PM2.5 for an area(s) in the 

state; 

• Volatile organic compounds 

(VOC)—not regulated under the PSD 

program unless state demonstrates that 

VOC emissions are a significant 

contributor to the formation of PM2.5 for 

an area(s) in the state; and 

• Ammonia—not regulated under the 

PSD program unless state demonstrates 

that ammonia emissions are a 

significant contributor to the formation 

of PM2.5 for an area(s) in the state 

The rule also identifies the following 

significant emission rates used to 

determine if increases in direct 

emissions of PM2.5 or increases in PM2.5

precursors at an existing facility result 

in major modifications and are subject 

to the PSD program: 

• Direct PM2.5 emissions—10 tpy 

• SO2 emissions—40 tpy 

• NOX emissions—40 tpy 

• VOC emissions (if regulated) 40 tpy 

unless the state demonstrates that a 

lower rate is appropriate. 

C. What revisions did EPA make in 

October 20, 2010? 

EPA issued a Final Rule to establish 

Increments, Significant Impact Levels 

(SILs) and Significant Monitoring 

Concentration (SMC) for the new PM2.5

standard. (75 FR 64864, October 20, 

2010) This final rule is the mechanism 

used to estimate significant 

deterioration of ambient air quality for 

a pollutant. An increment is the 

maximum allowable increase in ambient 

concentrations of a pollutant in an area. 

Permitting agencies may not issue a PSD 

permit if modeled impacts from the new 

or modified source results in increases 

above the increment. SILs is a screening 

tool used to determine whether a 

proposed source’s emissions will have a 

‘‘significant’’ impact on air quality in 

the area. SMC is a screening tool that 

may be used to determine if a source 

must submit to the permitting authority 

1 year of pre-construction air quality 

monitoring data prior to constructing or 

modifying a facility. 

This final rule establishes increments, 

SILs, and an SMC for PM2.5 to facilitate 

ambient air quality monitoring and 

modeling under the PSD regulations for 

areas designated attainment or 

unclassifiable for PM2.5. This rule 

together with the May 16, 2008 PM2.5

rule provides the necessary elements to 

implement the PM2.5 program in any 

area. 

III. What is EPA’s analysis of New 

Hampshire’s proposed SIP revision? 

A. What requirements did EPA use to 

approve New Hampshire’s SIP 

submittal? 

Section 110(a)(1) of the CAA requires 

each state to submit to EPA a plan 

which provides for the implementation, 

maintenance and enforcement of each 

NAAQS. These plans, generally referred 

to as the SIP, include numerous air 

quality monitoring, emission inventory, 

and emission control requirements 

designed to obtain and maintain the 

NAAQS within the state. The CAA 

requires states to adopt SIP revisions 

into the state regulations and to submit 

the revisions to EPA for approval. 

Section 110(l) of the CAA states that 

EPA shall not approve a revision to the 

SIP if the revision would interfere with 

any applicable requirement concerning 

attainment (of the NAAQS) and 

reasonable further progress (as defined 

in CAA section 7501) or any other 

requirement of the CAA. 

In addition, federal regulations 

governing SIP-approved PSD programs 

at 40 CFR 51.166 ‘‘Prevention of 

Significant Deterioration of Air Quality’’ 

require that all state plans use the 

specific definitions as promulgated by 

EPA. Deviations from the federal 

wording for each definition will be 

approved only if the state specifically 

demonstrates that the submitted 

definition is more stringent, or at least 

as stringent in all respects, as the 

corresponding federal definition. 

B. What provisions did NH DES include 

in its November 15, 2012 SIP submittal? 

New Hampshire’s SIP submittal 

added or revised the following 

provisions to its PSD Program under 

Env-A 619 Prevention of Significant 

Deterioration: 

• Env-A 619.01: Purpose 

• Env-A 619.02: Applicability 


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• Env-A 619.03: PSD Program 

Requirements 

• Env-A 619.04: Owner or Operator 

Obligations 

• Env-A 619.05: Permit Application 

Requirements 

• Env-A 619.06: Designation of Class I 

and Class II Areas 

• Env-A 619.07: Department Review 

and Public Notice 

• Env-A 619.08: Increment 

Consumption 

The following is a description of each 

section. 

Env-A 619.01 Purpose defines the 

purpose of the part to implement the 

PSD program as set forth in Sections 160 

through 169B of the Act and 40 CFR 

52.21. 

Env-A 619.02 Applicability 

identifies the sources subject to the state 

PSD program: New major sources or 

major modifications of a regulated NSR 

pollutant located in an area designated 

as attainment or unclassifiable under 

107(d)(1) of the act for the regulated 

NSR pollutant. The section also allows 

an owner or operator to demonstrate 

that the program does not apply to a 

major source or major modification with 

respect to a particular pollutant if the 

source or modification is located in an 

area designated as nonattainment under 

107 of the Act for the particular 

pollutant. 

Env-A 619.03 PSD Program 

Requirements adopts the specific 

provisions under the July 1, 2011 

edition of 40 CFR 52.21 needed to 

implement a SIP-approved PSD program 

that meets the requirements of Title I of 

the Act. Except for the definition of 

‘‘Baseline actual emissions,’’ the NH 

DES adopted the federal provisions into 

the state program without revision. 

The section includes instructions to 

replace the term ‘‘administrator’’ used 

in the 40 CFR 52.21 with the term 

‘‘department.’’ The replacement of 

‘‘administrator’’ with ‘‘department’’ 

identifies those federal provisions the 

NH DES intends to implement. The 

section also includes instructions to 

retain the term administrator for a list of 

provisions adopted into the state PSD 

program but that cannot be 

implemented by the NH DES. 

Env-A 619.04 Owner or Operator 

Obligations includes the following 

requirements: 

• the owner or operator of any new 

major stationary source or major 

modification subject to Env-A 619 shall 

comply with BACT; and 

• the owner or operator of an existing 

major stationary source with a 

Plantwide applicability limit (PAL) 

shall comply with the provisions of its 

PAL. 

Env-A 619.05 Permit Application 

Requirements includes references to the 

state procedures to process permit 

applications, the information required 

in applications, specific information for 

PALs, and procedures for the 

department to notify federal land 

managers. 

Env-A 619.06 Designation of Class I 

and class II Areas identifies the Class I 

and Class II areas in New Hampshire. 

Env-A 619.07 Department Review 

and public notice identifies the 

requirements to review permit 

applications, notify and resolve 

application deficiencies, and schedules 

for making final determinations in 

accordance with criteria set forth in 

Env-A 607.04 and 40 CFR 52.21(j) 

through (p). Finally, the section 

identifies the public notice procedures 

under Env-A 621.04 for permit issuance 

including the requirement for a 30-day 

public notice and comment period and 

permit appeal procedures under the 

state judicial review regulations. 

Env-A 619.08 Increment 

Consumption requires the state to 

periodically review pollutant 

concentration increases over baseline to 

determine whether ambient air 

increments have been violated in any 

PSD area within the state. If a violation 

is discovered, the NH DES shall submit 

to EPA a plan for insuring the violation 

shall be mitigated as soon as possible. 

C. How did the New Hampshire 

November 15, 2012 SIP submittal meet 

the new and existing PSD program 

requirements? 

With the exception of the revision to 

the definition of ‘‘baseline actual 

emissions,’’ the NH DES’s SIP submittal 

incorporated by reference into State 

regulations the federal PSD Program 

definitions and requirements as 

promulgated under the July 1, 2011 

edition of 40 CFR 52.21, without 

revision. By incorporating the Federal 

provisions under 40 CFR 52.21 without 

revision, the state’s proposed SIP 

revision satisfies the existing SIPapproved PSD program requirements 

approved on October 28, 2002, the 

December 31, 2002 NSR Improvement 

Rule, the May 16, 2008 PM2.5 NSR Rule 

and October 20, 2010 PM2.5 Increment, 

SMC and SIL Rule. 

In EPA’s October 28, 2002 approval of 

New Hampshire’s state PSD program, 

New Hampshire’s regulations included 

public participation and permit appeal 

procedural requirements that are 

specific to the State’s permitting 

programs. The requirements complied 

with federal procedural requirements 

including provisions for a public notice 

and comment period of a minimum of 

30 days. These requirements continue to 

meet federal PSD permit procedural 

requirements. 

EPA’s October 30, 2014 Technical 

Support Document (TSD) for the 

proposed approval described in this 

document includes a complete list of 

federal provisions adopted into the state 

PSD program, the corresponding state 

requirements and a description of how 

the state provision complies with the 

federal requirements. 

D. How did NH DES demonstrate that 

the definition for ‘‘Baseline Actual 

Emissions’’ is as stringent as the 

corresponding federal definition? 

1. Description of State and Federal 

definition for ‘‘Baseline Actual 

Emissions’’ 

The ‘‘Baseline actual emissions’’ 

definition is used in all major source 

applicability tests and defines the actual 

emissions from a source before the 

project. The difference between the preproject ‘‘actual emission baseline’’ and 

the post-project ‘‘projected actual 

emissions’’ determines the emission 

increase from a project. 

The federal definition of ‘‘Baseline 

actual emissions’’ at 40 CFR 52.21(b)(48) 

and 40 CFR 51.166(b)(47) defines 

separate baseline emissions calculations 

for existing electric utility steam 

generating units (EUSGU) and all other 

existing emission units other than 

EUSGU as follows: 

• Existing EUSGU: The owner/

operator may select any consecutive 24- 

month period for each pollutant without 

the need for a demonstration within the 

5-year period immediately preceding 

when the owner/operator begins actual 

construction of the project. The 

reviewing authority may allow the use 

of a different time period upon a 

determination showing the time period 

is more representative of normal source 

operations. A different consecutive 24- 

month period can be used for each 

regulated pollutant. 

• All other existing emission units: 

The owner/operator may select any 

consecutive 24-month period in the 10- 

year period immediately preceding 

either the date the owner/operator 

begins actual construction or the date a 

completed permit application is 

received by the reviewing authority for 

a permit required either under this 

section or under a plan approved by the 

administrator, whichever is earlier. No 

other different time period is allowed. A 

different consecutive 24-month period 

can be used for each regulated pollutant. 

The NH DES definition tracks the 

requirements in 40 CFR 52.21(b)(48) 

except for the following revisions: 


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• The definition applies to EUSGU 

and non-EUSGU. 

• The owner/operator may select a 

consecutive 24-month period for each 

pollutant within a 5-year period without 

the need for a demonstration. 

• The department shall allow the use 

of a different time period up to 10-years 

preceding the date when the owner/

operator begins actual construction 

upon adequate demonstration by the 

applicant that it is more representative 

of normal source operations. 

• The same consecutive 24-month 

period shall be used for each regulated 

pollutant. 

• The department may allow a 

different consecutive 24-month period 

for different pollutants upon a 

determination that the alternative time 

period is more representative of normal 

source operations upon adequate 

demonstration by the applicant that it is 

more representative of normal source 

operations. 

2. Description of Demonstration 

As noted in the background section, 

the federal regulations governing SIPapproved PSD Programs at 40 CFR 

51.166 ‘‘Prevention of significant 

deterioration of air quality’’ require that 

all state plans use the specific 

definitions as promulgated by EPA. 

Deviations from the federal wording for 

each definition will be approved only if 

the State specifically demonstrates that 

the submitted definition is more 

stringent, or at least as stringent in all 

respects, as the corresponding federal 

definition. 

As part of the Final 2002 NSR final 

rule, EPA prepared a November 21, 

2002, ‘‘Supplemental Analysis of the 

Environmental Impact of the 2002 Final 

NSR Improvement Rules (Supplemental 

Analysis).’’ The Supplemental Analysis 

provided a description of the NSR 

reform rules and an analysis 

demonstrating that the reform rule’s 

environmental benefits were equivalent 

to or more stringent than the existing 

pre-reform rules. For the addition of the 

definition of ‘‘Baseline actual 

emissions,’’ EPA concluded that the use 

of a 10 year period to select a baseline 

is a reasonable period considering the 

variability of different business cycles. 

EPA believes the effect from the new 

definition is small and would not alter 

the baseline for 90% of the sources. For 

the remaining 10%, EPA cannot draw 

general conclusions about how many 

sources would or would not receive an 

alternative baseline nor estimate what 

emission consequences would result. 

EPA’s complete analysis of the 

definition of ‘‘Baseline Actual 

Emissions’’ can be found at http://

www.epa.gov/nsr/documents/nsranalysis.pdf. 

The NH DES included as part of their 

SIP submittal a November 16, 2012 

memorandum entitled ‘‘Supplemental 

Information for SIP Revision Request 

Parts of Env-A 600, Statewide Permit 

System.’’ Similar to the EPA’s study, the 

memorandum described the difference 

between the federal and state ‘‘Baseline 

actual emissions’’ definitions and an 

emissions study that compares the 

effects of the state and federal definition 

on changes to actual sources located in 

New Hampshire. The NH DES’s analysis 

looked at the federal definition baseline 

actual emission, the state’s default 

baseline actual emission method (i.e., 24 

consecutive months selected from the 5 

years preceding actual construction for 

all regulated pollutants), and the state’s 

baseline emission baseline if the owner/ 

operator could demonstrate normal 

source operations: 

• For 24 consecutive months selected 

from the 5 to 10 year period preceding 

actual construction, and 

• for different 24 consecutive months 

selected for different regulated 

pollutants. 

For the majority of changes occurring 

at any type of source, the state’s default 

baseline actual emissions method 

resulted in the same or lower baseline 

emissions as compared to the federal 

definition. For owner/operators that 

could demonstrate normal source 

operations for 24 consecutive months 

selected from the 5 to 10 year period 

preceding construction and for different 

regulated pollutants, the results showed 

that state’s definition resulted in 

baseline emissions that were equivalent 

in all cases to the federal definition. 

EPA concludes the NH DES’s 

definition is as stringent in all respects 

as the federal definition. The state 

definition results in the same emission 

baseline for new emission units, 

changes to existing EUSGUs, and 

changes at existing units that emit one 

pollutant and with high utilization rates 

within the last 5 years. For all other 

changes, the state’s definition allows the 

use of baselines selected outside of 5 

years (but before 10-years) and baselines 

for each regulated pollutant where 

appropriately demonstrated. As a result, 

any difference in the application of the 

state and federal definition on the 

selection of baseline emissions, if any, 

would be insignificant and would result 

in similar PSD applicability decisions, 

emission limitations or emission control 

requirements. 

IV. How did New Hampshire’s 

November 15, 2012 SIP submittal 

comply with the relevant legal 

decisions issued by the United States 

Court of Appeals for the District of 

Columbia and the United States 

Supreme Court effecting PM2.5 SMC and 

greenhouse gas requirements, 

respectively? 

A. PM2.5 SMC 

The November 15, 2012 SIP submittal 

includes requirements to make the 

State’s PSD program comply with the 

federal PSD program for PM2.5 NAAQS. 

After the NH DES submitted the 

November 2012 proposed PSD SIP 

revision to EPA, the U.S. Court of 

Appeals for the District of Columbia, in 

Sierra Club v. EPA, 705 F.3d 458 (2013), 

vacated the provisions at 40 CFR 

51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), 

relating to PM2.5 SMC, that were 

promulgated as part of EPA’s 2010 PM2.5

PSD rulemaking. (75 FR 64864, October 

20, 2010). In a letter dated December 9, 

2014, the NH DES amended its 

November 15, 2012 SIP submittal to 

clarify that the submittal is no longer 

intended to include the PM2.5 SMC 

provisions. In addition, the NH DES 

letter confirms that it will not apply the 

PM2.5 SMC provisions to pending or 

future PSD permit actions. 

B. Greenhouse Gas Requirements 

The November 15, 2012 submittal 

includes requirements that had earlier 

been approved by EPA into the New 

Hampshire SIP on March 3, 2012, 

establishing appropriate emission 

thresholds for determining which new 

and modified stationary sources are 

subject to New Hampshire’s PSD 

permitting requirements for their 

greenhouse gas (GHG) emissions. 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S.Ct. 2427. The Supreme Court said 

that the EPA may not treat GHGs as an 

air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit. 

The Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

the EPA is not continuing to apply EPA 

regulations that would require that SIPs 


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Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Proposed Rules 2865 

include permitting requirements that 

the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when 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 (e.g. 40 

CFR 51.166(b)(48)(v)). EPA anticipates a 

need to revise federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

states will revise their existing SIPapproved PSD programs in light of the 

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to the EPA regulations and 

state PSD program approvals are 

expected to be informed by additional 

legal process before the United States 

District Court for the District of 

Columbia Circuit. At this juncture, EPA 

is not expecting states to have revised 

their PSD programs and is only 

evaluating such submissions to assure 

that the state’s program correctly 

addresses GHGs consistent with the 

Supreme Court’s decision. 

In its December 9, 2014 letter, New 

Hampshire indicated that it will not 

implement the GHG requirements as to 

sources that would be subject to the PSD 

program solely by virtue of their GHG 

emissions. New Hampshire indicated 

that it will not treat GHG as a pollutant 

for purposes of determining whether a 

source is a major source required to 

obtain a PSD permit. However, 

consistent with the Supreme Court’s 

June 23, 1014 decision, New Hampshire 

will be implementing the GHG 

requirements that apply to sources that 

are subject to the PSD program 

requirements by virtue of other 

regulated pollutants. Once EPA revises 

its regulations to address the Supreme 

Court’s recent GHG decision, the NH 

DES will revise its rules and submit the 

revisions to EPA for approval into the 

SIP. 

V. What action is EPA taking? 

EPA proposes to approve the NH 

DES’s November 15, 2012 proposed SIP 

revision. The proposed SIP revision, as 

clarified in a letter dated December 9, 

2014 from the NH DES, establishes a 

state PSD program at Env-A 619, 

‘‘Prevention of Significant 

Deterioration’’ that meets all 

requirements for a SIP-approved PSD 

program under 40 CFR 51.166, section 

110 of the CAA, and EPA regulations. 

VI. 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, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: December 31, 2014. 

Deborah A Szaro, 

Acting Regional Administrator, EPA New 

England. 

[FR Doc. 2015–00872 Filed 1–20–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2014–0701; FRL–9921–70– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; District 

of Columbia; Infrastructure 

Requirements for the 2008 Ozone, 2010 

Nitrogen Dioxide, and 2010 Sulfur 

Dioxide National Ambient Air Quality 

Standards; Approval of Air Pollution 

Emergency Episode Plan 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

portions of three State Implementation 

Plan (SIP) revision submittals from the 

District of Columbia (hereafter ‘‘the 

District’’) pursuant to the Clean Air Act 

(CAA). Whenever new or revised 

national ambient air quality standards 

(NAAQS) are promulgated, the CAA 

requires states to submit a plan for the 

implementation, maintenance, and 

enforcement of such NAAQS. The plan 

is required to address basic program 

elements, including, but not limited to, 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure attainment 

and maintenance of the standards. 

These elements are referred to as 

infrastructure requirements. The District 

has made three separate submittals 

addressing the infrastructure 

requirements for the 2008 ozone 

NAAQS, the 2010 nitrogen dioxide 

(NO2) NAAQS, and the 2010 sulfur 

dioxide (SO2) NAAQS. One of the 

infrastructure submittals also includes 

the ‘‘Revised Air Quality Emergency 

Plan for the District of Columbia’’ for 


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