State NSR Program Update #3

This state program update reviews EPA actions in approving, conditionally approving, or disapproving state implementation plan programs under any of the three NSR programs: minor NSR, PSD and/or NNSR. This edition reviews plan actions from October 1, 2017 through December 31, 2017. This update covers Alabama, Alaska, California, Colorado, Florida, Georgia, Illinois, Michigan, New York, Oregon, Utah, Vermont and Wisconsin. We start with NSR program approvals, then list nonattainment area plan approvals (which is when the area specific NSR program becomes effective) and end with infrastructure SIP approvals. In the Commentary at the end, we discuss any trends observable in EPA’s state program actions.

ANALYSIS

Changes to NSR Program Scope and Application

Alabama

On August 15, 2017, EPA proposed, 82 Fed. Reg. 38660, and on October 10, 2017, 82 Fed. Reg. 46921, EPA took final action to approve:

The revisions to Alabama’s PSD program, updating ADEM r. 335-3-14-.04’s PAL provisions to include new greenhouse gas language from EPA’s greenhouse gas Step 3 rule; and
The revisions to Alabama’s PSD program to eliminate a major source based solely on emissions of greenhouse gases.

EPA took no action on any of the other elements of ADEM’s SIP submittal.

On August 24, 2017, EPA gave direct final approval to changes to the Alabama PSD SIP at 335-3-14-.04 that approved the addition of a definition of “replacement unit” and amended the definition of “emissions unit” to make it clear that a “replacement unit” is an existing unit for PSD purposes. 82 Fed. Reg. 40072. On October 12, 2017, EPA gave notice that it had received two adverse comments and was withdrawing the rule and would proceed under the notice of proposed rulemaking. 82 Fed. Reg. 47397.

Alaska

On December 8, 2017, EPA gave final approval to a revised incorporation by reference of various Alaska administrative code provisions in the state implementation plan. The provisions added to the incorporation by reference are: 18 AAC 50.302 Construction Permits; 50.306 Prevention of Significant Deterioration; 50.345 Construction, Minor and Operating Permits: Standard Permit Conditions; 50.502 Minor Permits for Air Quality Protection; 50.508 Minor Permits Requested by the Owner or Operator; 50.510 Minor Permit-Title V Permit Interface; and assorted other sections dealing with the permit application and processing procedure.

California

Bay Area Air Quality Management District. On September 14, 2017, 82 Fed. Reg. 43202, EPA proposed to conditionally approve and on December 17, 82 Fed. Reg. 57133, finally conditionally approved changes to the BAAQMD Regulation 2, Rule 2-4 on emission reduction credits (ERCs). EPA conditionally approved because (1) the definition of ERC in the rule did not require BAAQMD to address EPA’s offset integrity criteria prior to granting an ERC certificate, (2) Rule 2-4 continues to rely on partially disapproved Rule 2-2’s “potential to potential” approach, meaning that some emissions that are not “actual” emissions reductions may receive credit, and (3) Rule 2-4 does not adequately provide for the permanency of an ERC resulting from a shutdown. 82 Fed. Reg. at 43203-04.

South Coast Air Quality Management District. On September 14, 2017, EPA approved an update to the South Coast Air Quality Management District (SCAQMD) RECLAIM program. 82 Fed. Reg. 43176. While most of the update is not related to the NSR program, EarthJustice had objected to the approval of Rule 2005, New Source Review for Regional Clean Air Incentives Program on the basis that it did not meet CAA requirements. EarthJustice claimed that Rule 2005 (among other rules) failed to adequately prevent emission reduction credits from shut downs from entering the market. EPA responded by noting that the new rules reduced the amount of shut down ERCs entering the market and that there is no requirement that the limitations be applied retroactively before the new rule was adopted. EarthJustice also argued that the revision failed to comply with California law, but EPA stated that compliance with state law is not required, so long as local authorities can administer the program and the California Air Resources Board had provided such a certification. Accordingly, EPA finalized the SIP revision.

Colorado

On August 17, 2017, EPA proposed to approve and on October 12, 2017, finally approved revisions to the Colorado State Implementation Plan proposed by the Colorado Department of Health in February 2015. 82 Fed. Reg. 39396 (proposal); 82 Fed. Reg. 47380 (final). The approved changes are as follows:

Changes to revise the significant impact levels (SILs) in Part D, Section V.A.2.c and significant monitoring concentrations (SMCs) in Part D, Section VI.B.3.a.(iii) for PM2.5. EPA noted that in 2013, the D.C. Circuit had vacated and remanded the PM2.5 SIL and SMC and that EPA had removed the SIL and promulgated an SMC of zero. EPA found that this change was consistent with law and strengthened the SIP.
Changes to the Air Pollutant Emissions Notice (APEN) in Part A, Section II.A and following, to change reporting from facility-wide to unit-specific for purposes of filing revisions. The APEN is part of the minor NSR program and the goal was to reduce the number of filings and also to allow new owners to file an abbreviated form. EPA found that these changes were consistent with the CAA.
Changes to the public notice provisions in Regulation 3, part B, Section III.C, to allow use of prominent display in the Department’s website in lieu of newspaper publication, consistent with EPA policy statements was found consistent with the Act.

Florida

On August 10, 2017, EPA proposed to approve and on October 6, 2017 gave final approval to a number of changes to the Florida SIP submitted by the Florida Department of Environmental Protection on June 23, 1999, July 1, 2011, December 12, 2011, and February 27, 2013, and February 1, 2017. 82 Fed. Reg. 37379 (proposed rule); 82 Fed. Reg. 46682 (final rule). EPA proposed the following actions:

Rule 62–210.200, F.A.C., ‘‘Definitions’’. EPA proposes to approve the revisions to the definitions as they clarify application of the regulation and do not affect any substantive change.
Rule 62–210.310, F.A.C., ‘‘Air General Permits’’. This rule provides for 17 general permits or permits-by-rule, 6 of which contain provisions which allow sources to avoid becoming major and 11 of which are otherwise adequate to ensure minor status. EPA proposes to approve all 17 general permits.
Rule 62–210.350, F.A.C., ‘‘Public Notice and Comment.” The revisions allow construction and operation permit notices to be combined, so long as all requirements of all programs are met. EPA agreed that this approach complies with the CAA.
Rule 62–296.100, F.A.C., ‘‘Purpose and Scope’’. EPA approved a minor reorganization of existing language and clarification that rules under multiple sections may apply.
EPA approved the repeal of Rule 62-210.920, “Air General Permit Forms.” EPA approved because these forms have been replaced with an on-line system.

Georgia

On August 15, 2017, EPA gave direct final approval of certain changes to the Georgia NSR program initially submitted by the Georgia Environmental Protection Division (EPD) on December 15, 2011, July 25, 2014, and November 12, 2014 on clean units, greenhouse gas PALs, and updating the definition of regulated NSR pollutant. 82 Fed. Reg. 38605. EPA subsequently received an adverse comment on proposed changes to Rule 391-3-1-.02(7). As a result, EPA withdrew its direct final approval of that approval. EPA did not propose to reopen the comment period. On October 16, 2017, EPA resolved that adverse comment and gave final approval to changes to the GA EPD NSR program as follows. The approved changes include:

Revisions to Rule 391-3-1-.02(7) PSD, including changes needed to address PM2.5 condensable precursors and to allow greenhouse gas PALs.
Revisions to Rule 391-3-1-.03(8) NNSR, including changes at paragraphs (g) and (d) to allow greenhouse gas PALs.
EPA also approved deletion of references to clean units.

EPA did not act on proposed changes to definitions in Rule 391-3-1-.01(lll) through (nnnn) or proposed changes to the ambient air quality standards.

Michigan

On August 15, 2017, EPA proposed to approve revisions to the Michigan State Implementation Plan related to permits to install (PTI). 82 Fed. Reg. 38651. This proposed action addressed state submittals dated November 12, 1993, May 16, 1993, April 3, 1998, September 2, 2003, March 24, 2009 and February 28, 2017. EPA had issued a proposed disapproval of the 1993, 1996 and 1998 submittals on November 9, 1999, but never finalized action. In this action, EPA found that the “revisions to the Part 2 submitted by MDEQ are largely provisions that strengthen the already submitted approved minor NSR program adding greater detail with respect to applicability, required application material, and processing,” but noted that there were also some “waiver” and “exemption” provisions. EPA stated that it would not act on proposed changes to the Michigan public review process at R 336.1205 in this action. EPA proposed the following actions:

R 336.1202(1). This provision would allow certain work prior to permitting. EPA notes that this is not forbidden by the PSD program for non-major sources, but the allowance for pre-permit construction must still meet CAA section 110 requirements. In this case, MDEQ proposes to require an application to undertake such construction, limits what may be approved, and prohibits construction or reconstruction under Parts 61 or 63. EPA found that this provision is consistent with the act and proposal approval.
Source exemptions at R 336.1278, 1278a, 1280-1290. In reviewing this, EPA stated its concern is to ensure no major source escapes regulation, that there is adequate records for the state to enforce, and that the exemptions would not interfere with the NAAQS, CAA requirements or reasonable further progress. R 336.1278 prohibits use of the exemption by sources subject to major source requirements and imposes recordkeeping requirements and defines activity as all “concurrent and related installation, construction, reconstruction, relocation, or modification of any process or process equipment,” which EPA found would result in proper aggregation before applying an exemption. R 336.1278a imposes a demonstration requirement. MDEQ then demonstrated that emissions were low (likely less than 3 tons/year) or provided a demonstration where emissions were 10 tons/year or more that no impact on NAAQS was anticipated. Accordingly, EPA proposed to approve these provisions.

EPA extended this comment period on November 2, 2017 and then reopened it again period on January 9, 2018 due to a missing attachment.

Oregon

On October 11, 2017, EPA gave final approval to a number of changes to the Oregon NSR programs. 82 Fed. 47122. These changes include:

Division 200-General Air Pollution Procedures and Definitions (0010, 0020, 0025, 0030, 0035)
Division 202-Ambient Air Quality Standards and PSD Increments (0010, 0020, 0050, 0070, 0100, 0130, 0200, 0210, 0220, 0225)
Division 204-Designation of Air Quality Areas (0010, 0020, 0030, 0040, 0050, 0060, 0070, 0080, 0090, 0300, 0310, 0320)
Division 224-New Source Review (0010, 0020, 0025, 0030, 0034, 0038, 0040, 0045, 0050, 0055, 0060, 0070, 0245, 0250, 0255, 0260, 0270, 0500, 0510 (except para. (3)), 0520, 0530, 0540)
Division 225-Air Quality Analysis (0010, 0020, 0030, 0040, 0045, 0050, 0060, 0070)

EPA approved the removal of the following ODEQ rules:

Division 224-New Source Review (0080, 0100)
Division 225-Air Quality Analysis (0090

Lane County rules were also approved, including:

Division 200 (0020), Division 202 (0050), Division 204 (0300, 0310, 0320), Division 216 (0040, 0080), Division 224 (0030, 0530) (NSR), Division 225 (0010, 0020, 0030, 0040, 0045, 0050, 0060, 0070)

Vermont

On December 18, 2017, EPA proposed to approve changes to Vermont’s PSD program that would make a number of previously conditionally approved infrastructure SIPs fully approvable. 82 Fed. Reg. 59997. In June 2017, EPA had proposed conditional approval because Vermont’s PSD SIP did not require NOx and VOC to be included as precursors to ozone in defining a significant emissions increase and problems with how Vermont determined the amount of increment available to a new or modified major source. On December 15, 2016, Vermont Department of Environmental Conservation (DEC) submitted changes to APCR § 5-101(80) to revise the definition of significant was revised to include 40 tons year or more of either VOCs or NOx as ozone precursors. DEC also revised APCR §§ 5-502(4)(c), (5)(a) and (b) to require PSD increment reviews be conducted in accordance with 40 CFR 51.166. In addition, DEC proposed to add APCR § 5-501(9) to the SIP, which provides that compliance with §5-501 does not relieve a permittee of any other obligations, and a requirement for the NNSR program in § 5-502(9) that a source conduct an alternative site analysis if the source is a major source or modification or in ozone areas is significant for ozone or NOx. EPA found that these changes are consistent with the Act.

Nonattainment SIP actions that change scope, but not substance, of NNSR program

EPA issued the following proposals and final actions to approve existing NSR provisions as satisfying nonattainment area plan requirements:

Illinois

On October 5, 2017, EPA proposed to approve Illinois’ existing NNSR rules as effective and applicable to the Lemont and Pekin, IL SO2 nonattainment areas. 82 Fed. Reg. 46434.

New York

On September 14, 2017, EPA proposed to approve New York’s NNSR program certification as adequate to satisfy the 2008 8-hour ozone NAAQS. 82 Fed. Reg. 43209. In its certification, NYSDEC stated that since New York is in the Ozone Transport Region, NNSR applies statewide for emissions of VOC and NOx from new major facilities and modifications and these changes are subject to 6 NYCRR Part 231. EPA gave final approval of the NNSR certification on December 12, 2017. 82 Fed. Reg. 58342.

Utah

EPA proposed and finalized approval of changes to R307-420 and R307-403-6. 82 Fed. Reg. 32517 (July 14, 2017) (proposal); 82 Fed. Reg. 46417 (Oct. 5, 2017) (final).

R307-420 maintains the offset provisions for the NNSR program in Salt Lake and Davis Counties after they are redesignated to attainment for ozone and makes the NOx offset requirements more stringent. R307-420 also is revised to be consistent with the permit provisions in R307-403.
R307-403-6 is revised to conform definitions to EPA’s rules.

EPA proposed approval of the Logan 2006 PM2.5 NAAQS nonattainment area plan. 82 Fed. Reg. 57183.

Wisconsin

On November 7, 2017, EPA gave direct final approval to revisions to Wisconsin’s minor NSR program to provide for revocation of construction permits and two rescind two provisions that affected eligibility for general and construction permits. 82 Fed. Reg. 51575. NR 406.11(1) was amended to add procedures for revocation and EPA approved removing NR 406.16(2)(d) and NR 406.17(3)(e) to eliminate references to repealed “Type 2” actions.

Infrastructure SIP actions

Infrastructure SIP approvals generally confirm that the state or local program authority has in place general provisions allowing proper administration of the Clean Air Act program. While necessary for a fully effective program, EPA generally does not discuss NSR program details in these actions.

Arkansas, 2006 and 2012 PM2.5 NAAQS, 2008 Lead NAAQS, 2008 Ozone NAAQS, 2010 Nitrogen Dioxide NAAQS, 2010 Sulfur Dioxide NAAQS. 82 Fed. Reg. 55065 (Nov. 20, 2017) (proposed rule)

Idaho, 2012 PM2.5 NAAQS. 82 Fed. Reg. 57132 (Dec. 4, 2017) (final rule)

Minnesota, 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Lead, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. 82 Fed. Reg. 50307 (Nov. 2, 2017) (final rule)

New Mexico, 2012 PM2.5 NAAQS. 82 Fed. Reg. 60933 (Dec. 26, 2017) (proposed rule)

North Dakota, 2010 SO2 and 2012 PM2.5 NAAQS. 82 Fed. Reg. 46681 (Oct. 6, 2017) (final rule)

Ohio, 2012 PM2.5 NAAQS. 82 Fed. Reg. 57690 (Dec. 7, 2017) (proposed rule)

South Carolina, 2010 1-hour NO2 interstate transport. 82 Fed. Reg. 45995.

Vermont, proposed conversion of conditional approval to full approval of the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 2008 Lead, 2008 ozone, 2010 NO2 and 2010 SO2 infrastructure SIPs. 82 Fed. Reg. 59997 (Dec. 18, 2017) (proposed rule)

COMMENTARY

Several trends are discernible in this state program update. First, it appears that the pace of state program approvals, while slower than the third quarter of 2017, still remains high. This is consistent with Administrator Pruitt’s emphasis on greater cooperation with the states discussed in State NSR Program Update #2. Second, following up on the trends observed in State NSR Program Update #2, EPA has continued to show greater willingness to accept revisions to state program applicability, accepting some additional construction without full preconstruction review where the state could demonstrate safeguards were in place to prevent major source leakage and there was an adequate analysis showing that the NAAQS would be protected. The Colorado, Florida and Michigan actions discussed above reflect this trend and the different ways that state and local programs can expedite minor NSR review.