Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Rules and Regulations 26183 

Tuesdays through Saturdays throughout 

the deviation period. In addition, the 

span will be in the closed position on 

Mondays, but available to open from 7 

a.m. to 4 p.m. when given 3 hours 

advanced notice. The bridge will 

operate as normal on Sundays. 

Waterway usage on the Lewis and Clark 

River is primarily small recreational 

boaters and fishing vessels transiting to 

and from Fred Wahl Marine 

Construction Inc. 

The bascule span of the bridge will 

have a containment system installed 

which will reduce the vertical clearance 

by 5 feet from 17.3 feet above mean high 

water to 12.3 feet above mean high 

water. Vessels able to pass through the 

bridge in the closed positions may do so 

at anytime. The bridge will be able to 

open for any emergency if a three-hour 

notice is given from 7 a.m. to 4 p.m. 

Monday through Saturday; on Sundays 

the bridge will be able to open in 

accordance with 33 CFR 117.899(c), and 

there is no immediate alternate route for 

vessels to pass. The Coast Guard will 

also inform the users of the waterways 

through our Local and Broadcast 

Notices to Mariners of the change in 

operating schedule for the bridge so that 

vessels can arrange their transits to 

minimize any impact caused by the 

temporary deviation. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the effective period of this 

temporary deviation. This deviation 

from the operating regulations is 

authorized under 33 CFR 117.35. 

Dated: May 1, 2015. 

Steven M. Fischer, 

Bridge Administrator, Thirteenth Coast Guard 

District. 

[FR Doc. 2015–10635 Filed 5–6–15; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2015–0334] 

Drawbridge Operation Regulation; New 

Jersey Intracoastal Waterway (NJICW), 

Atlantic City, NJ 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of deviation from 

drawbridge regulation. 

SUMMARY: The Coast Guard has issued a 

temporary deviation from the operating 

schedule that governs the US 40–322 

(Albany Avenue) Bridge across Inside 

Thorofare, NJICW mile 70.0, at Atlantic 

City, NJ. The deviation is necessary to 

facilitate the American Cancer Society 

Bike-a-thon. The deviation allows the 

bridge to remain in the closed position 

to vessels requesting a bridge opening to 

ensure the biker’s safety and that there 

are no delays. 

DATES: This deviation is effective from 

8 a.m. to 4 p.m. on June 14, 2015. 

ADDRESSES: The docket for this 

deviation [USCG–2015–0334] is 

available at http://www.regulations.gov. 

Type the docket number in the ‘‘Search’’ 

box and click ‘‘Search.’’ Click on the 

Open Docket Folder on the line 

associated with this deviation. You may 

also visit the Docket Management 

Facility in Room W12–140, on the 

ground floor of the Department of 

Transportation West Building, 1200 

New Jersey Avenue SE., Washington, 

DC 20590, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

deviation, call or email Kashanda 

Booker, Bridge Management Specialist, 

Fifth Coast Guard District, telephone 

(757) 398–6227, email 

Kashanda.l.booker@uscg.mil. If you 

have questions on reviewing the docket, 

call Cheryl Collins, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: The 

American Cancer Society on behalf of 

the New Jersey Department of 

Transportation has requested a 

temporary deviation from the current 

operating regulation of the US 40–322 

(Albany Avenue) Bridge across Inside 

Thorofare, NJICW mile 70.0, at Atlantic 

City, NJ. The closure has been requested 

to ensure the safety of the bikers and 

spectators that will be participating in 

the American Cancer Society Bike-athon. Under this temporary deviation, 

the US 40–322 (Albany Avenue) Bridge 

will remain in the closed position from 

8 a.m. to 4 p.m. on June 14, 2015. 

The vertical clearance of this bascule 

bridge is 10 feet above mean high water 

in the closed position and unlimited in 

the open position. The current operating 

regulation is outlined at 33 CFR 

117.733(f), which requires that the 

bridge shall open on signal, except that 

from 9 a.m. to 4 p.m. the draw need 

only open on the hour and half hour. 

The majority of the vessels that transit 

the bridge this time of year are 

recreational boats. Vessels able to pass 

through the bridge in the closed 

positions may do so at any time. The 

bridge will be able to open for 

emergencies. The Atlantic Ocean is an 

alternate route for vessels with mast 

heights greater than 10 feet. The Coast 

Guard will inform the users of the 

waterway through our Local and 

Broadcast Notice to Mariners’ of the 

closure periods so that vessels can plan 

their transits to minimize any impact 

caused by the temporary deviation. At 

all other times during the affected 

period, the bridge will operate as 

outlined at 33 CFR 117.733(f). 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the designated time period. This 

deviation from the operating regulations 

is authorized under 33 CFR 117.35. 

Dated: April 28, 2015. 

Hal R. Pitts, 

Bridge Program Manager, Fifth Coast Guard 

District. 

[FR Doc. 2015–11017 Filed 5–6–15; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2015–0071; FRL–9926–98– 

OAR] 

RIN 2060–AS57 

Prevention of Significant Deterioration 

Permitting for Greenhouse Gases: 

Providing Option for Rescission of 

EPA-Issued Tailoring Rule Step 2 

Prevention of Significant Deterioration 

Permits 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking direct final 

action to amend the federal Prevention 

of Significant Deterioration (PSD) 

program regulations to allow for 

rescission of certain PSD permits issued 

by the EPA and delegated reviewing 

authorities under Step 2 of the 

Prevention of Significant Deterioration 

and Title V Greenhouse Gas (GHG) 

Tailoring Rule (Tailoring Rule). We are 

taking this action in order to provide a 

mechanism for the EPA and delegated 

reviewing authorities to rescind PSD 

permits that are no longer required in 

light of the United States (U.S.) 

Supreme Court’s decision in Utility Air 

Regulatory Group (UARG) v. EPA and 

the amended appeals court judgment in 

Coalition for Responsible Regulation 

(Coalition) v. EPA, vacating that rule. 

These decisions determined that Step 2 

of the Tailoring Rule was not required 

under the Clean Air Act (CAA or Act) 


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26184 Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Rules and Regulations 

1For purposes of this rule, the phrases ‘‘EPAissued PSD permits that were issued under Step 2 

of the Tailoring Rule’’ and ‘‘EPA-issued Step 2 PSD 

permits’’ are intended to have the same meaning. 

The use of the term ‘‘EPA-issued’’ in both phrases 

includes PSD permits issued by the EPA as well as 

permits issued by state or local reviewing 

and vacated the EPA regulations 

implementing Step 2. When effective, 

this action will authorize the EPA and 

delegated reviewing authorities to 

rescind Step 2 PSD permits in response 

to requests from applicants who can 

demonstrate that they are eligible for 

permit rescission. 

DATES: This rule is effective on July 6, 

2015 without further notice, unless the 

EPA receives adverse comment by June 

8, 2015. If the EPA receives adverse 

comment, we will publish a timely 

withdrawal in the Federal Register 

informing the public that the rule will 

not take effect. If anyone contacts the 

EPA requesting to speak at a public 

hearing by May 18, 2015, the EPA will 

hold a public hearing on May 22, 2015 

in Research Triangle Park, North 

Carolina. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2015–0071, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the online instructions for submitting 

comments. 

• Email: a-and-r-docket@epa.gov. 

Include docket ID No. EPA–HQ–OAR– 

2015–0071 in the subject line of the 

message. 

• Fax: (202) 566–9744. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

Mail Code 28221T, Attention Docket ID 

No. EPA–HQ–OAR–2015–0071, 1200 

Pennsylvania Avenue NW., Washington, 

DC 20460. 

• Hand/Courier Delivery: EPA Docket 

Center, Room 3334, EPA William 

Jefferson Clinton West Building, 1301 

Constitution Avenue NW., Washington, 

DC 20004, Attention Docket ID No. 

EPA–HQ–OAR–2015–0071. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2015– 

0071. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http://

www.regulations.gov or email. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means the 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 the EPA without 

going through http://

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, the EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

CD you submit. If the EPA cannot read 

your comment due to technical 

difficulties and cannot contact you for 

clarification, the EPA may not be able to 

consider your comment. Electronic files 

should avoid the use of special 

characters, avoid any form of encryption 

and be free of any defects or viruses. For 

additional information about the EPA’s 

public docket, visit the EPA Docket 

Center homepage at http://

www.epa.gov/epahome/dockets.htm. 

Docket. All documents in the docket 

are listed in the http://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically at http://

www.regulations.gov or in hard copy at 

the EPA Docket Center, Room 3334, 

EPA William Jefferson Clinton West 

Building, 1301 Constitution Avenue 

NW., Washington, DC 20004. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Office of Air and 

Radiation Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Questions concerning this direct final 

should be addressed to Mrs. Jessica 

Montan ̃ ez, U.S. Environmental 

Protection Agency, Office of Air Quality 

Planning and Standards, Air Quality 

Planning Division, (C504–03), Research 

Triangle Park, NC 27711, telephone 

number (919) 541–3407, email at 

montanez.jessica@epa.gov. To request a 

public hearing or questions concerning 

a public hearing, please contact Ms. 

Pamela Long, U.S. Environmental 

Protection Agency, Office of Air Quality 

Planning and Standards, Air Quality 

Planning Division, (C504–01), Research 

Triangle Park, NC 27711, telephone 

number (919) 541–0641, email at 

long.pam@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in this SUPPLEMENTARY

INFORMATION section of this preamble is 

organized as follows: 

I. Why is the EPA using a direct final rule? 

II. Does this action apply to me? 

III. Background 

A. What is the PSD program? 

B. What is the Tailoring Rule? 

C. What is the UARG v. EPA decision and 

why does the EPA need to revise the 

permit rescission provisions under 40 

CFR 52.21(w) in light of the decision? 

1. What is the UARG v. EPA U.S. Supreme 

Court decision? 

2. Why are we revising the permit 

rescission provisions under 40 CFR 

52.21(w) in light of the Supreme Court 

decision in UARG v. EPA and the 

amended appeals court judgment in 

Coalition? 

IV. Direct Final Action 

V. Environmental Justice Considerations 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executve Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution and Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act (CRA) 

L. Determination Under Section 307(d) 

VII. Judicial Review 

I. Why is the EPA using a direct final 

rule? 

The EPA is publishing this rule 

without a prior proposed rule because 

we view this as a non-controversial 

amendment and anticipate no adverse 

comment. This action narrowly amends 

the permit rescission provisions in the 

federal PSD regulations found in 40 CFR 

52.21(w) to allow for the rescission of 

EPA-issued PSD permits 1 that were 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Rules and Regulations 26185 

authorities exercising federal law authority 

delegated by an EPA Regional Office under 40 CFR 

52.21(u). 

2Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule (75 FR 31514, 

June 3, 2010); 40 CFR 52.21(b)(49)(v). 

3CAA section 165(a)(3). 

4CAA section 165(a)(4). 

5Among other things, title V of the CAA requires 

all major stationary sources of air pollution and 

certain other sources to apply for a title V operating 

permit that includes emission limitations and other 

conditions as necessary to assure compliance with 

applicable requirements of the CAA. The title V 

operating permit program is a vehicle for ensuring 

that air quality control requirements are 

appropriately applied to facility emission units and 

for assuring compliance with such requirements, 

but does not generally impose new substantive air 

quality control requirements. The title V program is 

implemented through regulations promulgated 

Continued 

issued under Step 2 of the Tailoring 

Rule 2 permitting regulations. 

The U.S. Supreme Court determined 

the permitting requirements under Step 

2 of the Tailoring Rule to be invalid in 

UARG v. EPA, 134 S. Ct. 2427 (2014). 

The Supreme Court affirmed in part and 

reversed in part an earlier decision of 

the United States Court of Appeals for 

the District of Columbia Circuit (D.C. 

Circuit) in Coalition for Responsible 

Regulation v. EPA, 684 F.3d 102 (D.C. 

Cir. 2012). In further proceedings upon 

consideration of the Supreme Court 

decision, the D.C. Circuit amended its 

judgment in the Coalition case. The 

Amended Judgment vacated particular 

provisions of the EPA’s regulations 

implementing Step 2 of the Tailoring 

Rule. 

This direct final action does not itself 

rescind any permits; it only provides the 

regulatory mechanism through which 

the EPA or state or local program 

administering the PSD program through 

a delegation of federal authority from 

the EPA could rescind, upon request of 

a source, an EPA-issued Step 2 PSD 

permit consistent with the U.S. 

Supreme Court decision and the 

amended judgment of the D.C. Circuit 

vacating the regulations. However, in 

the ‘‘Proposed Rules’’ section of this 

Federal Register publication, we also 

are publishing a separate document that 

will serve as the proposed rule to amend 

the same federal PSD regulations at 40 

CFR 52.21(w) if adverse comments are 

received on this direct final rule. If the 

EPA receives adverse comment, we will 

publish a timely withdrawal in the 

Federal Register informing the public 

that this direct final rule will not take 

effect. In that case, we would address all 

public comments in any subsequent 

final rule based on the proposed rule. 

We will not institute a second comment 

period on the proposed rule, and any 

parties interested in commenting must 

do so at this time. For further 

information about commenting on the 

proposed rule, see the ADDRESSES

section in that separate document in 

this Federal Register publication. 

II. Does this action apply to me? 

The entities potentially affected by 

this rule include new and modified 

stationary sources that obtained an EPAissued Step 2 PSD permit under the 

federal PSD regulations found at 40 CFR 

52.21 solely because the source or a 

modification of the source was expected 

to emit or increase GHG emissions over 

the applicable thresholds. This includes 

(1) sources classified as major for PSD 

purposes solely on the basis of their 

potential GHG emissions; and (2) 

sources emitting major amounts of other 

pollutants that experienced a 

modification resulting in an increase of 

only GHG emissions above the 

applicable levels in the EPA regulations. 

Entities affected by this rule may also 

include state or local reviewing 

authorities that have been delegated 

federal authority to implement the 

federal PSD regulations under 40 CFR 

52.21(u) and that have issued Step 2 

PSD permits to sources within their 

jurisdiction. This rule does not address 

the requirements for approval of a PSD 

program into a state implementation 

plan (40 CFR 51.166) or the rescission 

of PSD permits issued by states and 

local programs with such approved 

programs. Stationary sources with 

questions on the PSD permitting 

obligations arising from Step 2 PSD 

permits issued by state or local 

reviewing authorities under the 

permitting programs approved into state 

implementation plans should review the 

governing statutory provisions and 

provisions in the applicable approved 

state or local permitting program to 

determine how to address any Step 2 

PSD permitting issues and consult with 

the EPA as necessary. 

III. Background 

A. What is the PSD program? 

Part C of title I of the Act contains the 

requirements for a component of the 

major New Source Review (NSR) 

program known as the PSD program. 

This program sets forth procedures for 

the construction review and permitting 

of new and modified stationary sources 

of air pollution locating in areas meeting 

the National Ambient Air Quality 

Standards (NAAQS) (‘‘attainment’’ 

areas) and areas for which there is 

insufficient information to classify an 

area as either attainment or 

nonattainment (‘‘unclassifiable’’ areas). 

The applicability of PSD to a 

particular source must be determined in 

advance of construction of a new source 

or major modification of an existing 

source and is pollutant-specific. Once a 

source is determined to be subject to 

PSD, among other requirements, the 

source must demonstrate that it will not 

cause or contribute to a violation of any 

NAAQS or PSD increment,3 and that it 

will use the Best Available Control 

Technology (BACT).4

The reviewing authority must provide 

notice of its preliminary decision on a 

source’s application for a PSD permit, 

and must provide an opportunity for 

comment by the public, industry, and 

other interested persons. After 

considering and responding to 

comments, the reviewing authority must 

issue a final determination on the 

permit. 

B. What is the Tailoring Rule? 

On June 3, 2010, the EPA issued a 

final rule, known as the Tailoring Rule, 

which phased in permitting 

requirements for GHG emissions from 

stationary sources under the CAA PSD 

and title V permitting programs (75 FR 

31514). 

For Step 1 of the Tailoring Rule, 

which began on January 2, 2011, PSD or 

title V requirements applied to sources’ 

GHG emissions only if the sources were 

subject to PSD or title V ‘‘anyway’’ due 

to their emissions of non-GHG 

pollutants. These sources are referred to 

as ‘‘anyway sources.’’ Step 2 of the 

Tailoring Rule, which began on July 1, 

2011, applied the PSD and title V 

permitting requirements under the CAA 

to sources that were classified as major, 

and, thus, required to obtain a permit, 

based solely on their potential GHG 

emissions and to modifications of 

otherwise major sources that required a 

PSD permit because they increased only 

GHG above applicable levels in the EPA 

regulations. 

C. What is the UARG v. EPA decision 

and why does the EPA need to revise the 

permit rescission provisions under 40 

CFR 52.21(w) in light of the decision? 

1. What is the UARG v. EPA U.S. 

Supreme Court decision? 

On June 23, 2014, the U.S. Supreme 

Court issued a decision in UARG v. 

EPA, 134 S. Ct. 2427, addressing the 

application of stationary source 

permitting requirements to GHGs. In 

summary, the U.S. Supreme Court said 

that the EPA may not treat GHGs as an 

air pollutant for the specific purpose of 

determining whether a source (or a 

modification thereof) is required to 

obtain a PSD or title V permit,5 and 


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26186 Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Rules and Regulations 

under 40 CFR part 70, for programs implemented 

by state or local agencies and tribes, and 40 CFR 

part 71, for programs generally implemented by the 

EPA. 

6http://epa.gov/nsr/documents/

20140724memo.pdf. 

7http://epa.gov/nsr/ghgdocs/

Step2PermitRescissinsMemoFinal_12-19-14.pdf. 

8http://epa.gov/nsr/ghgdocs/

OECANoActionAssuranceMemo_

December192014.pdf. 

declared that the EPA regulations 

implementing that approach for 

determining permitting applicability are 

invalid. However, the U.S. Supreme 

Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of conventional pollutants (i.e., nonGHG pollutants), contain limitations on 

GHG emissions based on the application 

of BACT. That is, the ruling effectively 

upheld PSD permitting requirements for 

GHG emissions under Step 1 of the 

Tailoring Rule for ‘‘anyway sources,’’ 

and invalidated PSD permitting 

requirements for Step 2 sources. 

To describe the EPA’s preliminary 

views on the U.S. Supreme Court 

decision, on July 24, 2014, the EPA 

issued a memorandum titled, ‘‘Next 

Steps and Preliminary Views on the 

Application of Clean Air Act Permitting 

Programs to Greenhouse Gases 

Following the Supreme Court’s Decision 

in UARG v. EPA’’ (Preliminary Views 

Memo).6 In that memorandum, the EPA 

explained that it ‘‘will no longer require 

PSD . . . permits for Step 2 sources’’ 

(Preliminary Views Memo at 2) and that 

the EPA expected ‘‘to provide additional 

views in the future with respect to Step 

2 sources that had already obtained a 

PSD permit . . .’’ (Preliminary Views 

Memo at 4). 

The EPA provided additional views 

regarding EPA-issued Step 2 permits 

when it issued two memoranda on 

December 19, 2014. In the memorandum 

issued by the Office of Air and 

Radiation (OAR) and titled, ‘‘Next Steps 

for Addressing EPA-Issued Step 2 

Prevention of Significant Deterioration 

Greenhouse Gas Permits and Associated 

Requirements’’ (OAR Next Steps 

Memo),7 the EPA explained that it 

intended to complete this rulemaking 

‘‘authorizing the rescission of Step 2 

PSD permits.’’ In the second 

memorandum, which was issued by the 

Office of Enforcement and Compliance 

Assurance (OECA) and titled, ‘‘No 

Action Assurance Regarding EPA-Issued 

Step 2 Prevention of Significant 

Deterioration Permits and Related Title 

V Requirements Following Utility Air 

Regulatory Group v. Environmental 

Protection Agency’’ (OECA No Action 

Assurance Memo),8 OECA issued a 

narrowly tailored No Action Assurance 

for sources with EPA-issued Step 2 PSD 

permits. The OECA No Action 

Assurance Memo establishes that the 

EPA will exercise its enforcement 

discretion not to pursue enforcement of 

the terms and conditions relating to 

GHGs in a source’s EPA-issued Step 2 

PSD permit, and for related GHG terms 

and conditions that are contained in the 

source’s title V permit, if any. 

The Supreme Court decisions 

affirmed in part and reversed in part an 

earlier decision of the United States 

Court of Appeals for the District of 

Columbia Circuit (D.C. Circuit) in 

Coalition for Responsible Regulation v. 

EPA, 684 F.3d 102 (D.C. Cir. 2012). In 

further proceedings upon consideration 

of the opinion in UARG, on April 10, 

the D.C. Circuit in Coalition issued an 

amended judgment in accordance with 

that decision. Coalition for Responsible 

Regulation, Inc. v. EPA, Nos. 09–1322, 

10–073, 10–1092 and 10–1167 (D.C. Cir. 

April 10, 2015) (Amended Judgment). 

As relevant to this rulemaking action, 

the court ordered that the EPA 

regulations under review (including 40 

CFR 52.21(b)(49)(v)) be vacated to the 

extent they require a stationary source 

to obtain a PSD permit if greenhouse 

gases are the only pollutant (i) that the 

source emits or has the potential to emit 

above the applicable major source 

thresholds, or (ii) for which there is a 

significant emissions increase from a 

modification. 

We are aware that between the 

effective date of Step 2 (July 1, 2011) 

and the date of the UARG v. EPA 

decision (June 23, 2014), several sources 

obtained EPA-issued Step 2 PSD 

permits either directly from the EPA or 

from state or local agencies with 

delegated PSD programs under 40 CFR 

52.21 because the sources (or 

modifications thereof) were classified as 

‘‘major’’ solely on the basis of their GHG 

emissions. For some of these sources, 

the appropriate reviewing authorities 

also issued title V permits that 

incorporated the terms and conditions 

of the EPA-issued Step 2 PSD permits. 

To ensure this rule covers all stationary 

sources eligible for rescission of EPAissued Step 2 PSD permits, this action 

provides that owners or operators of 

stationary sources with EPA-issued Step 

2 PSD permits with final permit 

issuance dates from July 1, 2011 to 60 

days after the effective date of this rule 

would be able to request a permit 

rescission from EPA or delegated 

reviewing authorities as applicable. For 

more information on the process for 

requesting a permit rescission for EPAissued Step 2 PSD permits, see section 

V of this action titled, ‘‘Direct Final 

Action.’’ 

2. Why are we revising the permit 

rescission provisions under 40 CFR 

52.21(w) in light of the U.S. Supreme 

Court decision in UARG v. EPA and the 

amended appeals court judgment in 

Coalition? 

To implement the U.S. Supreme 

Court’s decision and the amended 

appeals court judgment vacating the 

regulations implementing Step 2 of the 

Tailoring Rule, it is necessary to 

undertake a process to rescind PSD Step 

2 permits. The EPA’s implementing 

permitting regulations at 40 CFR 52.21 

provide that ‘‘[a]ny [PSD] permit issued 

under this section or a prior version of 

this section shall remain in effect, 

unless and until it expires . . . or is 

rescinded’’ (40 CFR 52.21(w)(l)). 

Section 52.21(w) provides authority 

for a source holding a PSD permit to 

request rescission of the permit and for 

the EPA to ‘‘grant an application for 

rescission if the applicant shows that 

this section [40 CFR 52.21] would not 

apply to the source or modification.’’ 

However, as currently written, the scope 

of this rescission authority is limited to 

permits issued under 40 CFR 52.21 as in 

effect on or before July 30, 1987. Since 

any EPA-issued Step 2 PSD permits 

were issued under regulations effective 

after July 30, 1987, the rescission 

authority in 40 CFR 52.21(w) is not 

currently available to sources with EPAissued Step 2 PSD permits. This 

rulemaking action is a narrow revision 

to 52.21(w) solely to enable the 

rescission of Step 2 PSD permits 

consistent with the U.S. Supreme Court 

decision and the D.C. Circuit amended 

judgment. 

This rule does not address any issues 

concerning the federal PSD permit 

rescission regulations at 40 CFR 

52.21(w) that are not related to the 

Supreme Court decision in UARG v. 

EPA and the amended appeals court 

judgment vacating the Step 2 

regulations. We recognize, however, that 

other circumstances may arise in the 

future where the appropriate course of 

action may be permit rescission. We 

would expect these circumstances to be 

rare. Under the current rules, a 

rulemaking would need to be 

undertaken in each such circumstance 

as we are doing here. Therefore, the EPA 

is developing a separate rulemaking 

action that will provide an opportunity 

for the public to comment on any other 

situations where the July 30, 1987 date 

in 52.21(w) may be an impediment to 

the rescission of PSD permits under 

particular circumstances where that 

might be appropriate. 


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Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Rules and Regulations 26187 

IV. Direct Final Action 

In this action, the EPA is revising 40 

CFR 52.21(w)(2) by adding references to 

40 CFR 52.21(49)(b)(v)(a) and (b) to 

allow for rescission of any EPA-issued 

Step 2 PSD permits upon request by the 

permitted source, which is consistent 

with the EPA’s understanding of the 

Supreme Court decision and the 

amended appeals court judgment 

vacating the regulations. In addition, the 

EPA is adding the following sentence to 

40 CFR 52.21(w)(3) to make clear that 

PSD requirements no longer apply to 

Step 2 sources: ‘‘As a result of a 

decision of the U.S. Supreme Court, this 

section does not apply to sources or 

modifications that meet only the 

applicability criteria in 40 CFR 

52.21(b)(49)(v).’’ 

This regulatory action does not make 

any change to 40 CFR 52.21(w)(1) or (4). 

In addition, it does not affect the 

standard for determining whether a 

source is eligible for permit rescission 

under 40 CFR 52.21(w)(3). It serves only 

to revise 40 CFR 52.21(w)(2)–(3) of the 

EPA’s federal PSD regulations to 

authorize the EPA to undertake permit 

rescissions for EPA-issued Step 2 PSD 

permits. As the EPA previously 

explained in its December 19, 2014, 

OAR Next Steps Memo, once this rule 

is final, sources with EPA-issued Step 2 

PSD permits will be able to seek a 

permit rescission from the EPA or 

delegated state or local reviewing 

authority. 

Specifically, consistent with the 2014 

OAR Next Steps Memo at page 3, the 

EPA expects that PSD permit-holders 

interested in qualifying for the 

rescission of an EPA-issued Step 2 PSD 

permit under 40 CFR 52.21(w) will need 

to provide information to demonstrate 

that either (1) the source did not, at the 

time the source obtained its EPA-issued 

Step 2 PSD permit, emit or have the 

potential to emit any regulated pollutant 

other than GHGs above the major source 

threshold applicable to that type of 

source; or (2) a modification at a source 

emitting major amounts of a regulated 

NSR pollutant other than GHGs did not 

result in an increase in emissions of any 

regulated pollutant other than GHGs in 

an amount equal to or greater than the 

applicable significance level for that 

pollutant. Furthermore, the EPA intends 

to consider whether the EPA or another 

reviewing authority is relying on the 

EPA-issued Step 2 PSD permit for any 

other regulatory purpose. Rescission of 

a PSD permit that is no longer required 

should not extend to eliminate 

regulatory obligations that remain 

regarding non GHG-pollutants or 

inadvertently place the permitted source 

in a situation where it may be out of 

compliance with other requirements 

that the PSD permit satisfied. For 

example, as noted in the memoranda 

mentioned previously, a source with an 

EPA-issued Step 2 PSD permit may now 

have other regulatory or permitting 

obligations (e.g., minor NSR 

requirements), which generally concern 

sources emitting pollutants subject to a 

NAAQS. The source may have 

previously not needed to obtain a minor 

source permit because it used its Step 2 

permit to satisfy its preconstruction 

permitting obligations, but it might now 

need to obtain a minor NSR permit. 

Until such time as the source and the 

permitting authority can determine 

whether and how to replace Step 2 PSD 

permit conditions for such pollutants 

with a permit satisfying minor NSR 

requirements, continued compliance 

with PSD permit terms and conditions 

for such permits is important to protect 

the NAAQS, and rescission may, thus, 

be premature. Further, if the GHG 

condition in an EPA-issued Step 2 PSD 

permit has been used to satisfy another 

state or federal requirement, rescission 

may not be appropriate without 

assurances that another method will be 

established for complying with other 

federal, state, and local requirements 

(e.g., if the state is presuming the source 

builds consistent with the efficiency 

requirement in the EPA-issued Step 2 

permit in order to satisfy other state air 

pollution requirements). In sum, the 

rescission of any EPA-issued Step 2 PSD 

permits should not proceed without an 

understanding of how minor source 

construction permitting requirements 

and other legal obligations will be met 

going forward. Since the EPA generally 

does not issue construction permits for 

minor sources except in Indian country, 

the EPA Regional Offices and sources 

holding EPA-issued Step 2 PSD permits 

should consult with the appropriate 

state or local reviewing authorities and 

develop a plan to ensure that sources 

remain in compliance with applicable 

minor source and other legal 

requirements after rescission of EPAissued Step 2 PSD permits. 

As part of the rescission process for 

EPA-issued Step 2 PSD permits, the 

EPA anticipates that some sources will 

also want to seek revisions to title V 

operating permits that include the EPAissued Step 2 PSD permit terms and 

conditions. Therefore, once an EPAissued Step 2 PSD permit is formally 

rescinded by the EPA or delegated 

reviewing authority, the EPA or 

delegated reviewing authority will 

encourage the applicable title V state or 

local permitting authorities to take 

appropriate actions with the sources to 

resolve any issues related to the 

incorporation of the EPA-issued PSD 

Step 2 permit requirements into title V 

permits that have already been issued 

and as further described in the OAR 

Next Steps Memo at page 4. The EPA is 

not revising its title V regulations in this 

action because the EPA believes that its 

existing title V regulations contain 

sufficient procedures for the actions 

discussed in the OAR Next Steps Memo 

and no revisions to EPA’s title V 

regulations are necessary to enable these 

steps to proceed. 

This action only contains the 

regulatory revisions necessary to allow 

for rescission of EPA-issued Step 2 PSD 

permits in order to conform to the U.S. 

Supreme Court decision and the 

amended judgment of the D.C. Circuit. 

In this action, the EPA is not making 

any other regulatory changes in 

response to the U.S. Supreme Court’s 

decision or the amended judgment of 

the D.C. Circuit. The EPA intends to 

take additional rulemaking action to 

remove the vacated provisions from the 

Code of Federal Regulations and make 

further revisions to its PSD and title V 

regulations, as appropriate. 

V. Environmental Justice 

Considerations 

This action amends one provision of 

the federal PSD program regulations to 

allow for the rescission of EPA-issued 

Step 2 PSD permits in order to conform 

to a decision by the U.S. Supreme Court 

that declared invalid regulations that 

implemented the requirement that Step 

2 sources obtain PSD permits and an 

amended judgment by the D.C. Circuit 

vacating those regulations. When 

effective, this action will authorize the 

EPA and delegated reviewing 

authorities to rescind Step 2 PSD 

permits in response to requests from 

applicants who can demonstrate that 

they are eligible for permit rescission. 

Therefore, this action itself does not 

compel any specific permit action that 

will affect the fair treatment and 

meaningful involvement of all people. 

Rather, it ensures that the EPA has the 

authority to implement the U.S. 

Supreme Court’s decision and the 

amended judgment of the D.C. Circuit. 

Rescission of any EPA-issued Step 2 

PSD permits under this rule revision 

would follow all applicable permitting 

requirements. 


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26188 Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Rules and Regulations 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was therefore not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden under the 

PRA. OMB has previously approved the 

information collection activities 

contained in the existing regulations 

and has assigned OMB control number 

2060–0003. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, the impact of concern is 

any significant adverse economic 

impact on small entities. An agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, has 

no net burden or otherwise has a 

positive economic effect on the small 

entities subject to the rule. This rule 

relieves regulatory burden by providing 

a mechanism for the EPA and delegated 

reviewing authorities to rescind PSD 

permits that are no longer required in 

light of the U.S. Supreme Court decision 

in UARG v. EPA, which invalidates Step 

2 of the Tailoring Rule and of the 

amended judgment of the D.C. Circuit 

vacating that rule. We have, therefore, 

concluded that this action will relieve 

regulatory burden for all directly 

regulated small entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector 

to rescind these EPA-issued Step 2 PSD 

permits. Sources can ask for rescission 

of their EPA-issued Step 2 PSD permits 

at their discretion. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175. Although the Tribal Air 

Rule (76 FR 38748, July 1, 2011) under 

the CAA gives tribes the opportunity to 

request and be granted delegation of the 

federal PSD program found at 40 CFR 

52.21 to issue PSD permits, there are no 

tribal agencies currently implementing 

the federal PSD permitting program. As 

a result, this action will not affect any 

tribal reviewing authorities. In addition, 

any tribally-owned sources with EPAissued Step 2 PSD permits have the 

discretion to request the EPA to rescind 

their permit. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. The results of this 

evaluation are contained in the section 

VI titled, ‘‘Environmental Justice 

Considerations’’ for this action. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the U.S. This 

action is not a ‘‘major rule’’ as defined 

by 5 U.S.C. 804(2). 

L. Determination Under Section 307(d) 

Pursuant to CAA section 307(d)(1)(V), 

the Administrator determines that this 

action is subject to provisions of section 

307(d). Section 307(d) establishes 

procedural requirements specific to 

rulemaking under the CAA. Section 

307(d)(1)(V) provides that the 

provisions of section 307(d) apply to 

‘‘such other actions as the Administrator 

may determine.’’ 

VII. Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the U.S. Court of 

Appeals for the D.C. Circuit within 60 

days from May 7, 2015. Filing a petition 

for reconsideration by the Administrator 

of this final rule does not affect the 

finality of this action for the purposes of 

judicial review nor does it extend the 

time within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2) of the CAA). 

Parties with objections to this direct 

final rule are encouraged to file any 

comment in response to the parallel 

notice of proposed rulemaking for this 

action published in the ‘‘Proposed 

Rules’’ section of this Federal Register 

publication, rather than file an 

immediate petition for judicial review of 

this direct final rule to allow the EPA to 

withdraw this direct final rule and 

address the comment(s) in the proposed 

rulemaking. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Greenhouse gases, Incorporation by 

reference, Intergovernmental relations, 

Lead, National ambient air quality 

standards, New source review, Nitrogen 

dioxide, Ozone, Particulate matter, 

Permit rescissions, Preconstruction 

permitting, Sulfur oxides, Tailoring 

rule, Volatile organic compounds. 

Dated: April 30, 2015. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, title 40, Chapter I of the Code 

of Federal Regulations is amended as 

follows: 


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Federal Register / Vol. 80, No. 88 / Thursday, May 7, 2015 / Rules and Regulations 26189 

PART 52—APPROVAL AND 

PROMULGATION OF IMPLEMENTAION 

PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart A—General Provisions 

■ 2. Section 52.21 is amended by 

revising paragraphs (w)(2) and (3) to 

read as follows: 

§ 52.21 Prevention of significant 

deterioration of air quality. 

* * * * * 

(w) * * * 

(2) Any owner or operator of a 

stationary source or modification who 

holds a permit for the source or 

modification may request that the 

Administrator rescind the permit or a 

particular portion of the permit if the 

permit for the source or modification 

was issued: 

(i) Under § 52.21 as in effect on July 

30, 1987 or any earlier version of this 

section; 

(ii) Under § 52.21 between July 1, 

2011 and July 6, 2015 to a source that 

was classified as a major stationary 

source under paragraph (b)(1) of this 

section solely on the basis of potential 

emissions of greenhouse gases, which 

were defined as a regulated NSR 

pollutant through the application of 

paragraph (b)(49)(v)(a) of this section as 

in effect during this time period; or 

(iii) Under § 52.21 between July 1, 

2011 and July 6, 2015 for a modification 

that was classified as a major 

modification under paragraph (b)(2) 

solely on the basis of an increase in 

emissions of greenhouse gases, which 

were defined as a regulated NSR 

pollutant through the application of 

paragraph (b)(49)(v)(b) of this section as 

in effect during this time period. 

(3) The Administrator shall grant an 

application for rescission if the 

application shows that this section 

would not apply to the source or 

modification. As a result of a decision 

of the United States Supreme Court, this 

section does not apply to sources or 

modifications that meet only the 

applicability criteria in paragraph 

(b)(49)(v) of this section. 

* * * * * 

[FR Doc. 2015–10628 Filed 5–6–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2008–0636; FRL–9927–24– 

Region 6] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Mexico; Albuquerque/Bernalillo 

County; Revisions to Emissions 

Inventory Requirements, and General 

Provisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving under the 

Federal Clean Air Act (CAA) revisions 

to the Albuquerque/Bernalillo County, 

New Mexico State Implementation Plan 

(SIP). These revisions add definitions 

and clarifying changes to the general 

provisions and add a new emissions 

inventory regulation that establishes 

reporting requirements for stationary 

sources in Albuquerque/Bernalillo 

County. 

DATES: This rule is effective on June 8, 

2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2008–0636. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

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 through http://

www.regulations.gov or in hard copy at 

EPA Region 6, 1445 Ross Avenue, Suite 

700, Dallas, Texas 75202–2733. 

FOR FURTHER INFORMATION CONTACT: Mr. 

John Walser (6PD–L), Air Planning 

Section, telephone (214) 665–7128, 

email: walser.john@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means EPA. 

I. Background 

The background for today’s action is 

discussed in detail in our February 2, 

2015 direct final rule and proposal (80 

FR 5471). The rule and proposal stated 

that if any relevant adverse comments 

were received by the end of the public 

comment period on March 4, 2015, the 

direct final rule would be withdrawn 

and we would respond to the comments 

in a subsequent final action. A relevant 

adverse comment was received during 

the comment period, and the direct final 

rule was withdrawn on March 26, 2015 

(80 FR 15901). Our February 2, 2015 

proposal provides the basis for today’s 

final action. The SIP revisions proposed 

for approval add definitions and 

clarifying changes to the general 

provisions and add a new emissions 

inventory regulation that establishes 

reporting requirements for stationary 

sources in Albuquerque/Bernalillo 

County. 

II. Response to Comments 

We received one comment letter dated 

February 20, 2015, from the Sierra Club, 

regarding our direct final rule. 

Comment: ‘‘Acting regional 

administrator Sam Coleman cannot sign 

approvals, disapprovals, or any 

combination of approvals or 

disapproval, in whole or in part, due to 

the fact that agency actions on state 

implementation plans are required to be 

signed by the regional administrator, 

Ron Curry, not the current deputy 

regional administrator as stated in the 

agency’s delegations manual. The 

manual specifically states that SIP 

actions can’t be redelegated from the 

regional administrator.’’ 

Response: As the Acting Regional 

Administrator, Deputy Regional 

Administrator Sam Coleman had 

authority to sign the proposal and direct 

final action on this State 

Implementation Plan. On January 15, 

2015, the day that the proposal and 

direct final action were signed, Sam 

Coleman was acting in the capacity of 

the Regional Administrator for Ron 

Curry, who was absent from Region 6 at 

the time. The following language is 

listed in the Region 6 Deputy Regional 

Administrator’s position description ‘‘In 

the absence of the Regional 

Administrator, the Deputy Regional 

Administrator will perform the duties of 

the Regional Administrator.’’ A copy of 

the Deputy Regional Administrator’s 

position description is included in the 

docket for this rulemaking. Further, EPA 

Region 6 Order 1110.11 establishes a 

line of succession to perform the duties 

of the Regional Administrator should 

the Regional Administrator be absent 

from the office. The Deputy Regional 

Administrator is the first person listed 

on that line of succession. A copy of 

EPA Region 6 Order 1110.11 is included 

in the docket for this rulemaking. 

The heads of administrative agencies 

are statutorily vested with the authority 

to delegate authorities to subordinate 

officials, 5 U.S.C. 302. Federal Courts 

have held that rules, including internal 


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