[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43490-43508]
[FR Doc No: 2011-17256]

Vol. 76

Wednesday,

No. 139

July 20, 2011

Part IV

Environmental Protection Agency

-----------------------------------------------------------------------

40 CFR Parts 51, 52, 70, et al.

Deferral for CO2 Emissions From Bioenergy and Other Biogenic
Sources Under the Prevention of Significant Deterioration (PSD) and
Title V Programs; Final Rule

Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 /
Rules and Regulations

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51, 52, 70, and 71

[EPA-HQ-OAR-2011-0083; FRL-9431-6]
RIN 2060-AQ79

Deferral for CO2 Emissions From Bioenergy and Other
Biogenic Sources Under the Prevention of Significant Deterioration
(PSD) and Title V Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action defers for a period of three (3) years the
application of the Prevention of Significant Deterioration (PSD) and
Title V permitting requirements to biogenic carbon dioxide
(CO2) emissions from bioenergy and other biogenic stationary
sources. This action is being taken as part of the process of granting
the Petition for Reconsideration filed by the National Alliance of
Forest Owners (NAFO) on August 3, 2010, related to the PSD and Title V
Greenhouse Gas Tailoring Rule. The result of this action is that during
this three year period biogenic CO2 emissions are not
required to be counted for applicability purposes under the PSD and
Title V permitting programs. State, local, and tribal permitting
authorities may adopt the deferral at their option but the deferral is
effective upon publication for the PSD and Title V permit programs that
are implemented by EPA.

DATES: This action is effective on July 20, 2011.

ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2011-0083. 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., confidential
business information (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 Air Docket, EPA/DC,
EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the Air
Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate Change Division,
Office of Atmospheric Programs (MC-6207J), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Regulated Entities. The Administrator
determined that this action is subject to the provisions of Clean Air
Act (CAA) section 307(d). See CAA section 307(d)(1)(V) (the provisions
of section 307(d) apply to ``such other actions as the Administrator
may determine''). These are final amendments to existing regulations.
This action applies to stationary sources that emit biogenic
CO2.

           Table 1--Examples of Affected Entities by Category
------------------------------------------------------------------------
                                                   Examples of affected
            Category                  NAICS             facilities
------------------------------------------------------------------------
Biomass combustion.............             221  Electric utilities
                                                  burning biomass fuels.
                                            321  Wood products
                                                  manufacturing, and
                                                  wood pellet fuel
                                                  manufacturing.
                                            322  Pulp and paper
                                                  manufacturing.
Municipal solid waste                    562213  Solid waste combustors
 combustion.                                      and incinerators.
Sources/users of biogas........             112  Animal production
                                                  manure management
                                                  operations.
                                         221320  Sewage treatment
                                                  facilities.
                                         562212  Solid waste landfills.
Fermentation processes.........          325193  Ethanol manufacturing.
                                         325411  Medicinal and botanical
                                                  manufacturing.
Other..........................         311/312  Food/Beverage
                                                  processors burning
                                                  agricultural biomass
                                                  residues, using
                                                  fermentation
                                                  processes, or
                                                  producing/using biogas
                                                  from anaerobic
                                                  digestion of waste
                                                  materials.
------------------------------------------------------------------------

    Table 1 of this preamble lists the types of entities that
potentially could be affected by the deferral covered by this action.
This list is not intended to be exhaustive, but rather provides a guide
for readers regarding facilities likely to be affected by this action.
Note that this rule does not make or infer any policy determination on
the part of EPA whether any emissions from any of these sources may be
determined ``fugitive'' emissions for the purposes of accounting and
applicability under air permitting requirements. Such determinations
are not within the scope of this rule and are part of the case-by-case
application and review process established under the regulations
covering these permitting requirements. If you have questions regarding
the applicability of this action to a particular facility, consult the
person listed in the FOR FURTHER INFORMATION CONTACT section of this
preamble.
    What is the effective date? The final rule is effective on July 20,
2011. Section 553(d) of the Administrative Procedure Act (APA), 5
U.S.C. Chapter 5, generally provides that rules may not take effect
earlier than 30 days after they are published in the Federal Register.
EPA is issuing this final rule under section 307(d)(1) of the Clean Air
Act, which states: ``The provisions of section 553 through 557 *** of
Title 5 shall not, except as expressly provided in this section, apply
to actions to which this subsection applies.'' Thus, section 553(d) of
the APA does not apply to this rule. EPA is nevertheless acting
consistently with the purposes of the underlying APA section 553(d) in
making this rule effective on July 20, 2011. Section 5 U.S.C. 553(d)(3)
allows an effective date less than 30 days after publication ``as
otherwise provided by the agency for good cause found and published
with the rule.'' As explained below, EPA finds that there is good cause
for this rule to become effective on July 20, 2011, even through this
results in fewer than 30 days from the date of publication in the
Federal Register.
    EPA announced its intent to undertake this rulemaking on January
12, 2011, in order to provide the Agency time to conduct a detailed
examination of the science and technical issues associated with
biogenic CO2 emissions

from stationary sources. The Agency intended to complete the rulemaking
before sources would be subject to the PSD and Title V programs for GHG
emissions because at that time it was possible that a source could be
subject to those requirements based on biogenic CO2
emissions. The Agency determined it could be burdensome for both
permitting authorities and sources to assess those emissions until our
detailed examination was complete. In a January 12, 2011, letter to
several members of Congress, the Administrator wrote, ``No source will
be subject to the pre-construction permitting requirement solely
because of its greenhouse gas emissions until after July 1, 2011. With
the approach of July 1 in mind, I am announcing today that, by that
date, EPA will complete a rulemaking to defer for three years the
application of the pre-construction permitting requirement to biomass
and other biogenic CO2 emissions.''
    One purpose of the 30-day waiting period prescribed in 5 U.S.C.
553(d) is to give affected parties a reasonable time to adjust their
behavior and prepare before the final rule takes effect. Whereas here,
the affected parties are anticipating this rule and requesting the
flexibility it provides, and any delay in its effectiveness will result
in uncertainty in the permitting process. In order to ensure that the
final rule is available to the public by July 1, 2011, the final rule
will be signed and made available on the EPA Web site. Publication may
follow one to two weeks after that date. A shorter effective date is
also consistent with the purposes of APA section 553(d)(1), which
provides an exception for any action that grants or recognizes an
exemption or relieves a restriction. Here, this action relieves a
burden because it defers the applicability of the PSD and Title V
permitting requirements for biogenic stationary sources for a period of
three years. Accordingly, we find good cause exists to make this rule
effective on July 20, 2011, consistent with the purposes of 5 U.S.C.
553(d)(1) and (3).
    Judicial Review. Under section 307(b)(1) of the CAA, judicial
review of this final rule is available only by filing a petition for
review in the U.S. Court of Appeals for the District of Columbia
Circuit (the Court) by September 19, 2011. Under CAA section
307(d)(7)(B), only an objection to this final rule that was raised with
reasonable specificity during the period for public comment can be
raised during judicial review. CAA section 307(d)(7)(B) also provides a
mechanism for EPA to convene a proceeding for reconsideration, ``[i]f
the person raising an objection can demonstrate to EPA that it was
impracticable to raise such objection within [the period for public
comment] or if the grounds for such objection arose after the period
for public comment (but within the time specified for judicial review)
and if such objection is of central relevance to the outcome of the
rule.'' Any person seeking to make such a demonstration to us should
submit a Petition for Reconsideration to the Office of the
Administrator, Environmental Protection Agency, Room 3000, Ariel Rios
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a
copy to the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section, and the Associate General Counsel for the Air and
Radiation Law Office, Office of General Counsel (Mail Code 2344A),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20004. Note, under CAA section 307(b)(2), the
requirements established by this final rule may not be challenged
separately in any civil or criminal proceedings brought by EPA to
enforce these requirements.
    Acronyms and Abbreviations. The following are acronyms and
abbreviations of terms used in this preamble.

BACT best available control technology
BAU business as usual
CAA Clean Air Act
CBI confidential business information
CFI Call for Information
CFR Code of Federal Regulations
CH4 methane
CO2 carbon dioxide
CO2e carbon dioxide equivalents
EO Executive Order
EPA U.S. Environmental Protection Agency
FR Federal Register
GHG/GHGs greenhouse gas/greenhouse gases
GWP global warming potential
LULUCF Land-Use, Land-Use Change and Forestry
MSW municipal solid waste
NAFO National Alliance of Forest Owners
NAAQS National Ambient Air Quality Standards
NOX nitrogen oxides
NSPS New Source Performance Standards
NSR New Source Review
NTTAA National Technology Transfer and Advancement Act of 1995
PSD Prevention of Significant Deterioration
PTE potential to emit
RFA Regulatory Flexibility Act
SAB Science Advisory Board
SILs significant impact levels
SIP State Implementation Plan
SMCs significant monitoring concentrations
tpy tons per year
U.S. United States
UMRA Unfunded Mandates Reform Act
UNFCCC United Nations Framework Convention on Climate Change

    Outline. The information presented in this preamble is organized as
follows:
I. Background
II. Summary of Final Action
    A. Overview of the Final Rule
    B. Legal Authority
    C. Facilities Permitted During Deferral
    D. Mechanism for Deferral and State Implementation
III. Response to Public Comments
    A. Overview of Public Comments
    B. Comments on the Deferral
    C. Comments on Science, Accounting, and Economic Issues
    D. Comments on PSD, Title V and the Tailoring Rule
    E. Comments on the Interim Guidance
IV. 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
    C. Regulatory Flexibility Act
    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. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or 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

I. Background

    On June 3, 2010, EPA published the final Prevention of Significant
Deterioration (PSD) and Title V Greenhouse Gas Tailoring Rule (herein
referred to as the Tailoring Rule; 75 FR 31514), setting thresholds for
GHG emissions that define when permits under these programs are
required for new and existing industrial facilities. Beginning January
2, 2011, sources currently subject to PSD or Title V permitting
programs were required to determine the best available control
technology (BACT) for their GHG emissions, but only for GHG increases
of 75,000 short tons per year (tpy) or more of total GHGs, on a carbon
dioxide equivalents (CO2e) basis and any increase on a mass
basis. At that time, no sources would be subject to CAA permitting
requirements due solely to GHG emissions.
    Beginning July 1, 2011, the PSD permitting requirements will for
the first time cover new construction projects that will emit GHGs of
at least 100,000 tpy on a CO2e basis even if they do not
exceed the permitting thresholds for any

other pollutant. Modifications at existing facilities that increase GHG
emissions by at least 75,000 tpy, and any amount on a mass basis, will
be subject to permitting requirements, even if they do not
significantly increase emissions of any other pollutant. Operating
permit requirements will, for the first time, apply to sources based on
their GHG emissions even if they would not apply based on emissions of
any other pollutant. Facilities that emit at least 100,000 tpy
CO2e will be subject to Title V permitting requirements.
    As discussed in the final Tailoring Rule, EPA decided not to
provide exemptions from applicability determinations (major source and
major modification) under PSD and Title V for certain GHG emission
sources, including biogenic emissions. EPA decided instead to address
the need for tailoring through a uniform threshold-based approach,
rather than through a collection of various specific exclusions. At
that time, EPA also noted that it planned to seek further comment on
how it might address biogenic CO2 emissions under the PSD
and Title V programs through a future action.
    On July 15, 2010, EPA published a Call for Information (CFI) to
solicit information and viewpoints from interested parties on
approaches to accounting for GHG emissions from bioenergy and other
biogenic sources (75 FR 41173). The purpose of this CFI was to request
comment on possible accounting approaches for biogenic CO2
emissions under the PSD and Title V programs, as well as to receive
data submissions about these sources and their GHG emissions, general
technical comments on accounting for these emissions, and comments on
the underlying science that should inform any such accounting approach.
    On August 3, 2010, NAFO petitioned the EPA to reconsider and stay
the implementation of the PSD and Title V GHG Tailoring Rule. The
petition alleged that the final Tailoring Rule declared, for the first
time and without any prior proposal or notice to industry, that EPA
would count CO2 emissions from combustion of biomass toward
the applicability thresholds established for the PSD and Title V
permitting programs of the CAA. Petitioners further alleged that EPA's
proposed rule had provided for the appropriate and opposite conclusion:
That CO2 emissions from combustion of biomass should not be
counted. Petitioners stated that there is near-universal recognition
that CO2 emitted from combustion of fuels derived from
biomass should be excluded from GHG regulations because production and
combustion of such fuels do not increase atmospheric CO2
levels. Pending reconsideration, petitioners requested that the
application of the PSD and Title V permitting programs to emissions of
CO2 from biomass be stayed.
    We considered carefully the petitioners' assertions and noted that
we also received comments through the CFI supporting the exclusion of
biogenic CO2 from stationary source permitting requirements.
Through the CFI, however, EPA also received information supporting the
position that biogenic CO2 should not be excluded from
permitting programs, and that the use of certain types of biomass as
fuel could increase atmospheric CO2 levels. Based on
consideration of the petitioners' arguments, together with the weight
of the comments received through the CFI, EPA concluded that the issue
of accounting for the net atmospheric impact of biogenic CO2
emissions is complex enough that further consideration of this
important issue is warranted. Therefore, EPA granted the NAFO petition
on January 12, 2011.\1\
---------------------------------------------------------------------------

    \1\ http://www.epa.gov/NSR/actions.html#mar11.
---------------------------------------------------------------------------

    On January 12, 2011, EPA also announced in letters to Members of
Congress and NAFO its intent to take a number of steps to address the
issues associated with biogenic CO2 emissions from
stationary sources. Pursuant to this announcement, on March 21, 2011,
EPA published a notice of proposed rulemaking to defer for three years
the application of the PSD and Title V permitting requirements to
biogenic CO2 emissions from stationary sources (76 FR
15249). Concurrent with this rulemaking, EPA also issued interim
guidance entitled, ``Guidance for Determining Best Available Control
Technology for Reducing Carbon Dioxide Emissions from Bioenergy
Production'' to help permitting authorities establish a basis for
concluding that under the PSD Program the combustion of biomass fuels
can be considered BACT for biogenic CO2 emissions at
stationary sources until such time as the deferral becomes effective.
During the three-year deferral period, EPA will conduct a detailed
examination of the science associated with biogenic CO2
emissions from stationary sources, including engaging with Federal
partners, technical experts, and an independent scientific panel to
consider technical issues. Based on the feedback from the scientific
and technical review, EPA will then undertake a rulemaking to determine
how biogenic CO2 emissions should be treated and accounted
for in PSD and Title V permitting.
    On April 27, 2011, EPA's Science Advisory Board (SAB) published a
notice soliciting experts for a peer review of EPA's science and
technical work on biogenic CO2 emissions. 76 FR 23587. EPA
intends to provide its study that examines the science and technical
issues associated with biogenic CO2 emissions from
stationary sources and accompanying accounting framework to the SAB for
peer review later in 2011.

II. Summary of Final Action

A. Overview of the Final Rule

    This action defers for a period of three (3) years the
consideration of CO2 emissions from bioenergy and other
biogenic sources (hereinafter referred to as ``biogenic CO2
emissions'') when determining whether a stationary source meets the PSD
and Title V applicability thresholds, including those for the
application of BACT. Stationary sources that combust biomass (or
otherwise emit biogenic CO2 emissions) and construct or
modify during the deferral period will avoid the application of PSD to
the biogenic CO2 emissions resulting from those actions.
This deferral applies only to biogenic CO2 emissions and
does not affect non-GHG pollutants or other GHGs (e.g., methane
(CH4) and nitrous oxide (N2O)) emitted from the
combustion of biomass fuel. Also, this deferral only pertains to
biogenic CO2 emissions in the PSD and Title V programs and
does not pertain to any other EPA programs such as the GHG Reporting
Program.
    EPA recognizes that use of certain types of biomass can be part of
the national strategy to reduce dependence on fossil fuels, efforts are
underway at the Federal, State and regional level to foster the
expansion of renewable resources and promote bioenergy projects when
they are a way to address climate change, increasing domestic
alternative energy production, enhancing forest management and creating
related employment opportunities. We believe part of fostering this
development is to ensure that those feedstocks with negligible net
atmospheric impact not be subject to unnecessary regulation. At the
same time, it is important that EPA have time to conduct its detailed
examination of the science and technical issues related to accounting
for biogenic CO2 emissions and therefore have finalized this
deferral.
    This deferral is intended to be a temporary measure, in effect for
no more than three years, to allow the Agency time to complete its work
and

determine what, if any, treatment of biogenic CO2 emissions
should be in the PSD and Title V programs. This is not EPA's final
determination on the treatment of biogenic CO2 emissions in
those programs. The Agency plans to complete its science and technical
review and any follow-on rulemakings within the three-year deferral
period and further believes that three years is ample time to complete
these tasks. It is possible that the subsequent rulemaking, depending
on the nature of EPA's determinations, would supersede this rulemaking
and become effective in fewer than three years.
    Biogenic CO2 emissions are defined as emissions of
CO2 from a stationary source directly resulting from the
combustion or decomposition of biologically-based materials other than
fossil fuels and mineral sources of carbon. Examples of ``biogenic
CO2 emissions'' include, but are not limited to:

     CO2 generated from the biological
decomposition of waste in landfills, wastewater treatment or manure
management processes;
     CO2 from the combustion of biogas collected
from biological decomposition of waste in landfills, wastewater
treatment or manure management processes;
     CO2 from fermentation during ethanol
production or other industrial fermentation processes;
     CO2 from combustion of the biological
fraction of municipal solid waste or biosolids;
     CO2 from combustion of the biological
fraction of tire-derived fuel; and
     CO2 derived from combustion of biological
material, including all types of wood and wood waste, forest
residue, and agricultural material.
    For stationary sources co-firing fossil fuel and biologically-based
fuel, and/or combusting mixed fuels (e.g., tire-derived fuels,
municipal solid waste (MSW)), the biogenic CO2 emissions
from that combustion are included in this deferral. However, the fossil
CO2 emissions are not. Emissions of CO2 from
processing of mineral feedstocks (e.g., calcium carbonate) are also not
included in this deferral. Various methods are available to calculate
both the biogenic and fossil portions of CO2 emissions,
including those methods contained in the GHG Reporting Program (40 CFR
Part 98). Consistent with the other pollutants in PSD and Title V,
there are no requirements to use a particular method in determining
your biogenic and fossil CO2 emissions.

B. Legal Authority

1. Applicability of PSD and Title V to Biogenic CO2
Emissions From Major Stationary Sources
    As currently written, the PSD and Title V regulations apply to
biogenic CO2 emissions from major sources or major
modifications at such sources according to the limitation included
under the definition of ``subject to regulation'' in the State
Implementation Plan (SIP) regulations at 40 CFR 51.166 and the Title V
state program regulations at 40 CFR 70.2, as well as the Federal
Implementation Plan requirements at 40 CFR 52.21 and the Title V
Federal program regulations at 40 CFR 71.2. Thus, revisions to these
regulations are necessary to defer application of the PSD and Title V
programs to such sources of biogenic CO2.
    Stationary sources of air pollutants, including sources of biogenic
CO2 emissions, are currently subject to PSD requirements if
they emit more than 100 or 250 tpy of a regulated NSR pollutant other
than GHGs and have triggered PSD as a result of these emissions,
subject to the permitting thresholds established in the Final Tailoring
Rule described below. The 100/250 tpy thresholds previously described
originate from section 169 of the CAA, which applies PSD to any ``major
emitting facility'' and defines the term to include any source with a
potential to emit (PTE) ``any air pollutant'' in an amount over 100 or
250 tpy, depending on source category.
    EPA's long-standing regulations limit the PSD applicability
provision that refers to ``any air pollutant'' to refer to any
``regulated NSR pollutant,'' which in turn includes any air pollutant
``subject to regulation'' under the CAA. Similarly, under sections
165(a)(4) and 169(3) of the CAA, the BACT requirement applies to ``each
pollutant subject to regulation'' under the CAA. As noted in other
recent EPA actions, GHGs are currently ``subject to regulation'' under
the CAA; subject, for PSD purposes, to specific limitations reflected
in the definition of that term that EPA adopted in the Tailoring Rule.
Thus, emissions of GHGs (including CO2) must be considered
in determining whether a source is a major emitting facility subject to
PSD, as a result of construction or modification, and whether the BACT
requirement applies to GHGs (including CO2 as a component of
GHGs). In light of the way these regulations are currently written, EPA
is unable to exclude biogenic CO2 emissions from PSD review
without amending the regulations.
    With respect to Title V, as noted previously, Title V applies to
sources, among others, that emit 100 tons per year of specified
quantities of ``any air pollutant,'' see CAA section 502(a), 501(2)(B)
and 302(g).
2. Tailoring Rule
a. Rationale and Requirements
    In the Tailoring Rule, EPA codified its interpretation that
``subject to regulation'' only extends to major sources of air
pollutants subject to a requirement for actual control of the quantity
of emissions of that pollutant, and that such a control requirement has
taken effect and is operative to control, limit or restrict the
quantity of emissions of that pollutant released from the regulated
activity, see 75 FR at 31606-07, and further defined ``subject to
regulation'' such that GHGs are only ``subject to regulation'' under
certain circumstances defined in the Tailoring Rule.
    In the Tailoring Rule, EPA recognized that if the applicability
provisions of the PSD and Title V programs were applied literally so
that PSD and Title V requirements applied to GHG-emitting sources at
the 100/250 tpy levels provided in the CAA, then the permitting
authorities would be overwhelmed by the large numbers of permittees and
many small sources would be unduly encumbered by the permitting
demands. In light of those impacts, EPA concluded that, as a legal
matter, Congress did not intend that the PSD and Title V applicability
requirements be applied literally to all sources emitting GHGs over the
major source thresholds as of January 2, 2011, the date by which EPA
determined that GHGs become subject to regulation under the CAA as a
result of the motor vehicle rule. Instead, EPA concluded that it is
authorized to tailor those applicability requirements to apply PSD and
Title V to such sources in a phased-in manner, starting with the
largest sources first.
    Specifically, in the Tailoring Rule, EPA has implemented these PSD
and Title V applicability provisions by applying the familiar two-step
framework for interpreting administrative statutes recognized by the
Supreme Court in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984),
taking into account certain legal doctrines. Those doctrines, insofar
as relevant to the Tailoring Rule, are (1) the ``absurd results''
doctrine, which authorizes agencies to apply statutory requirements
differently than a literal reading would indicate, as necessary to
effectuate congressional intent and

avoid absurd results; (2) the ``administrative necessity'' doctrine,
which authorizes agencies to apply statutory requirements in a way that
avoids impossible administrative burdens; and (3) the ``one-step-at-a-
time'' doctrine, which authorizes agencies to implement a regulatory
scheme in a deliberate, step-wise fashion. See 75 FR 31541-31579.
    Under Chevron, the agency must, at step 1, determine whether
Congress' intent as to the specific matter at issue is clear, and, if
so, the agency must give effect to that intent. 467 U.S. at 842. If
congressional intent is not clear, then, at step 2, the agency has
discretion to fashion an interpretation that is a reasonable
construction of the statute. 467 U.S. at 865. To determine
congressional intent, the agency must first consider the words of the
statutory requirements, and if their literal meaning answers the
question at hand, then, in most cases, the agency must implement those
requirements by those terms.
    However, under the ``absurd results'' doctrine, the literal meaning
of statutory requirements should not be considered to indicate
congressional intent if that literal meaning would produce a result
that is senseless or that is otherwise inconsistent with -- and
especially one that undermines -- underlying congressional purpose. In
these cases, if congressional intent for how the requirements apply to
the question at hand is clear, the agency should implement the
statutory requirements not in accordance with their literal meaning,
but rather in a manner that most closely effectuates congressional
intent. If congressional intent is not clear, then an agency may select
an interpretation that is reasonable under the statute.
    Under the ``administrative necessity'' doctrine, Congress is
presumed, at Chevron step 1, to intend that its statutory directives to
agencies be administrable, and not to have intended to have written
statutory requirements that are impossible to administer. Therefore,
under this doctrine, an agency may depart from statutory requirements
that, by their terms, are impossible to administer, but the agency may
depart no more than necessary to render the requirements administrable.
    In addition to the ``absurd results'' and ``administrative
necessity'' doctrines, another judicial doctrine supports at least part
of EPA's Tailoring Rule, and that is the doctrine that agencies may
implement statutory mandates one step at a time, which we will call the
``one-step-at-a-time'' doctrine. The U.S. Supreme Court recently
described the doctrine in Massachusetts v. EPA, 549 U.S. 497, 524
(2007), as follows: ``Agencies, like legislatures, do not generally
resolve massive problems in one fell regulatory swoop;'' and instead
they may permissibly implement such regulatory programs over time,
``refining their preferred approach as circumstances change and as they
develop a more nuanced understanding of how best to proceed.''
    In the Tailoring Rule, EPA closely considered the burdens to the
permitting authorities of applying PSD and Title V to GHG-emitting
sources. For example, EPA calculated, on a national basis, the workload
that GHG permit applications would entail, and compared that to the
existing workload of permitting authorities. EPA concluded that
permitting authorities would be overwhelmed by permit applications if
the PSD and Title V applicability thresholds were applied literally as
of January 2, 2011, to the GHG emissions from stationary sources. In
addition, EPA calculated the cost to the sources of permitting
requirements and concluded that many small sources would become subject
to unduly high expenses.
    Accordingly, in applying the Chevron analytical framework, in
conjunction with the absurd results and administrative necessity
doctrines, EPA concluded that Congress intended that PSD and Title V
apply to the GHG emissions from stationary sources, but that, in light
of the burdens to the permitting authority and the costs to the sources
of determining applicability of permitting requirements by applying the
statutory thresholds to GHG emissions, the application of the
permitting programs should be phased in, starting with the largest
sources of GHG emissions first. EPA also concluded that the calculation
for determining which sources emit the ``largest'' amount of GHG
emissions should be based on the amount of GHG pollutant emitted in
tons per year, weighted by the global warming potential (GWP) of the
particular GHG pollutant.
    Accordingly, in the Tailoring Rule, EPA established two steps to
implement PSD and Title V. At step 1, beginning January 2, 2011,
sources currently subject to PSD or Title V permitting programs were
required to determine the BACT for their GHG emissions, but only for
GHG increases of 75,000 short tons per year (tpy) or more of total
GHGs, on a CO2e basis and any increase on a mass basis. At
that time, no sources would be subject to CAA permitting requirements
due solely to GHG emissions. At step 2, beginning July 1, 2011, the PSD
permitting requirements will for the first time cover new construction
projects that will emit GHG emissions of at least 100,000 tpy on a
CO2e basis (and 250 tons on a mass basis) even if they do
not exceed the permitting thresholds for any other pollutant.
Modifications at existing facilities that emit at that level and
increase GHG emissions by at least 75,000 tpy CO2e and by any amount on
a mass basis will be subject to permitting requirements, even if they
do not significantly increase emissions of any other pollutant.
    In addition, EPA committed to promulgate by July 1, 2012, another
rulemaking--in effect, step 3 of the Tailoring Rule--that would
consider whether to reduce the thresholds further. EPA also committed
to promulgate another rulemaking after that, by April 1, 2016, that
would consider still further action. As EPA stated in the Tailoring
Rule, part of the purpose of the phase-in approach embodied in the
Tailoring Rule is to allow permitting authorities time to acquire
additional resources and to allow EPA time to develop streamlining
methods and thereby enable the application of PSD and Title V to more
sources in subsequent rulemakings.
    As noted previously, in the Tailoring Rule, EPA determined that the
amount of each GHG emitted by a facility should be calculated by
reference to the weight of the GHG emissions, in tons of
CO2e per year for determining if GHGs were ``subject to
regulation'' for a particular facility and project. The Tailoring Rule
proposal referenced EPA's Inventory of U.S. Greenhouse Gas Emissions
and Sinks (Inventory) \2\ submitted annually to the United Nations
Framework Convention on Climate Change (UNFCCC), for the applicable GWP
values and guidance on how to calculate a source's GHG emissions in tpy
CO2e. 75 FR 31514-31608. The Inventory includes emissions of
the six GHGs in terms of CO2e units. By linking the
calculation of CO2e for GHGs to GWP values, a facility could
evaluate its total GHG emissions contribution based on a single metric.
We solicited comment on the benefits and limitations of this proposed
metric.
---------------------------------------------------------------------------

    \2\ ``Inventory of U.S. Greenhouse Gas Emissions and Sinks:
1990-2008,'' U.S. Environmental Protection Agency, EPA 430-R-10-006
(April 15, 2010). http://www.epa.gov/climatechange/emissions/usinventoryreport.html.
---------------------------------------------------------------------------

    While we referred to the Inventory for GWP identification purposes
only, several commenters appeared to misunderstand our intent, claiming
that the Inventory excludes CO2 emitted from biomass. These
commenters

requested that, in calculations of emissions for determining
applicability of PSD and Title V, EPA exempt emissions from biogenic
activities or biomass combustion or oxidation activities, including
solid waste landfills, waste-to-energy projects, fermentation
processes, combustion of renewable fuels, ethanol manufacturing,
biodiesel production, and other alternative energy production that uses
biomass feedstocks (e.g., crops or trees). In particular, these
commenters urged that EPA exclude emissions from biomass combustion in
determining the applicability of PSD to such sources based on the
notion that such combustion is ``carbon neutral'' (i.e., that
combustion or oxidation of such materials would cause no net increase
in GHG emissions on a lifecycle basis).
b. Treatment of Biogenic Emissions
    In response, when finalizing the Tailoring Rule, we acknowledged
the role that biomass or biogenic fuels and feedstocks could play in
reducing anthropogenic GHG emissions, and did not dispute the
commenters' observations that many state, Federal, and international
rules and policies treat biogenic and fossil sources of CO2
emissions differently (75 FR 31514). Regarding commenters' claims that
the Inventory excludes CO2 emissions from biomass, EPA noted
that the Inventory does not exclude these emissions (see section II.A.2
of the preamble to the proposed deferral rule). Rather, they are
included in the Land-Use, Land-Use Change and Forestry (LULUCF) Sector
rather than the Energy Sector to avoid double-counting at the national
scale. The narrow reference to the use of the Inventory's GWP values
for estimating GHG emissions was provided to offer consistent guidance
on how to calculate these emissions and not as an indication, direct or
implied, that biomass emissions would be excluded from permitting
applicability merely by association with the national inventory, see 74
FR 55351, under the definition for ``carbon dioxide equivalent.''
    We determined that our application of the ``absurd results,''
``administrative necessity,'' and one-step-at-a-time legal rationales
supporting the Tailoring Rule, based on the expected overwhelming
permitting burdens in its absence, did not provide sufficient basis to
exclude emissions of CO2 from biogenic sources in
determining permitting applicability provisions at that time. We
reasoned that such an exclusion alone, while reducing burdens for some
sources, would not address the overwhelming permitting burdens, and a
threshold-based approach would still be needed. At that time, we had
not examined burdens with respect to specific source categories
impacted by the rule and thus had not analyzed the administrative
burden of permitting projects that specifically involve biogenic
CO2 emissions taking account of the threshold-based
approach. Commenters also did not provide information to demonstrate
that an overwhelming permitting burden would still exist, justifying a
temporary exclusion for biomass sources.
    In the final Tailoring Rule, we indicated that the decision not to
provide this type of an exclusion at that time did not foreclose EPA's
ability to either (1) provide this type of exclusion at a later time
with additional information about overwhelming permitting burdens due
to biomass sources, or (2) provide another type of exclusion or other
treatment based on some other rationale. Although we did not take a
final position, we noted that some commenters' observations about a
different treatment of biomass combustion warranted further exploration
as a possible rationale.
    Therefore, although we did not establish a permanent exclusion from
PSD or Title V applicability based on specific characteristics of
biogenic CO2, we indicated our intent to seek further
comment on how we might address emissions of biogenic CO2
under the PSD and Title V programs through a future action.
    We further noted that, while not promulgating an applicability
exclusion for biogenic emissions and biomass fuels or feedstocks in the
final Tailoring Rule, flexibility exists to apply the existing
regulations and policies regarding BACT in ways that take into account
their net effects on atmospheric GHG concentrations. Without prejudging
the outcome of our process to seek comment on whether and how we might
address emissions of biogenic carbon under the PSD and Title V programs
through a future action, we indicated that this issue warranted further
exploration.
    As mentioned earlier in the preamble, in order to explore the issue
further following the promulgation of the Tailoring Rule, on July 15,
2010, EPA solicited views from the public through a CFI on approaches
to accounting for biogenic CO2 emissions, on the means to
estimate and measure CO2 emissions from a variety of
biogenic CO2 sources and other information on biogenic
sources that may be affected but not identified in the CFI.
    With promulgation of the Tailoring Rule we committed to issue
technical and policy guidance for permitting of GHGs. Subsequently, the
information gathered from stakeholders in response to the CFI provided
diverse perspectives on treatment of biogenic CO2 emissions
in pre-construction and operating permit reviews, including many
requests to exclude, either partially or wholly, biogenic
CO2 sources from PSD applicability determinations and BACT
analyses on the basis of Inventory results and other considerations. On
November 10, 2010, EPA issued the draft ``PSD and Title V Permitting
Guidance for Greenhouse Gases'' which provides the basic information
that permit writers and applicants need to address GHG emissions in
permits. Within the November guidance, EPA acknowledged the numerous
stakeholder comments on biogenic CO2 BACT analyses and
provided general guidance to permitting authorities to consider
environmental, energy, and economic benefits that may accrue from the
use of certain types of biomass (e.g., biogas from landfills for energy
generation), consistent with existing air quality standards. We also
committed to provide more detailed technical and policy guidance early
in 2011 for completing step 4 of a ``top-down'' BACT analysis for GHG
emissions from certain types of biomass sources to enable permitting
authorities to simplify and streamline BACT determinations for such
sources. EPA provided interim guidance on this topic in March 2011,
concurrent with the proposal of this rule to assist permitting
authorities before the deferral becomes effective.\3\
---------------------------------------------------------------------------

    \3\ ``Guidance for Determining Best Available Control Technology
for Reducing Carbon Dioxide Emissions from Bioenergy Production,''
U.S. EPA Office of Air and Radiation, March 2011. (http://www.epa.gov/nsr/ghgdocs/bioenergyguidance.pdf)
---------------------------------------------------------------------------

    Noting that a variety of Federal and state policies have recognized
that some types of biomass can be part of a national strategy to reduce
dependence on fossil fuels and to reduce emissions of GHGs, EPA has
determined that it is appropriate for permitting authorities to account
for both existing Federal and state policies and their underlying
objectives in evaluating the environmental, energy and economic
benefits of biomass fuel. Based on these considerations, permitting
authorities might determine that the use of certain types of biomass
alone meets the BACT requirement for GHGs.
    As described in the Background section of this preamble, NAFO
petitioned the EPA on August 3, 2010 to reconsider and stay the
implementation of the PSD and Title V GHG Tailoring Rule. Pending
reconsideration, petitioners requested that the application of the PSD
and Title V

permitting programs to emissions of CO2 from biomass be
stayed.
    Based on consideration of the petitioners' arguments, together with
the weight of the comments received on the CFI, EPA concluded that the
issue of accounting for the net atmospheric impact of biogenic
CO2 emissions is complex enough that further consideration
of this important issue is warranted. Therefore, EPA granted the
petition on January 12, 2011.
    However, EPA did not grant the request for an administrative stay
of the Tailoring Rule, because the rule is critical for making overall
implementation of the PSD program feasible. Furthermore, an
administrative stay of the statements in the preamble of the Tailoring
Rule that describe EPA's initial determination not to exempt emissions
of CO2 from biomass would not provide the requested relief
of excluding emissions of CO2 from biomass from the PSD and
Title V permitting programs. The effect of a stay of this or any other
aspect of the Tailoring Rule would be to return to the legal regime
that existed before EPA's issuance of a final Tailoring Rule. As no
exemption for emissions of CO2 from biomass existed prior to
the final rule, an administrative stay would not result in an exemption
from the requirements of PSD and Title V.
3. Rationale in Support of Interim Biomass Deferral
a. Regulation at This Time Is Not Justified
    Since finalizing the Tailoring Rule, EPA has gathered additional
information concerning biomass through the CFI and in response to the
proposal for this rule. The information collected to this point
underscores the complexity and uncertainty associated with accounting
for biogenic emissions of CO2 and indicates that at present
attempting to determine the net carbon cycle impact of particular
facilities combusting particular types of biomass feedstocks would
require extensive analysis and would therefore entail extensive
workload requirements by many of the permitting authorities. In
contrast to other sources of GHG emissions, these uncertainties and
complexities are exacerbated because of the unique role and impact
biogenic sources of CO2 have in the carbon cycle. Further,
methodologies are not sufficiently developed to assure that various
permitting authorities would be able to perform the necessary
calculations reasonably and consistently to determine the net
atmospheric impact in many, if not all, instances.
    The extensive workload requirements required to understand the net
biogenic CO2 emissions from bioenergy facilities and other
sources of biogenic CO2 emissions, as part of the PSD and
Title V permit process, including specifically how to measure and
account for biogenic CO2 emissions, would unnecessarily
strain the resources of the affected permitting authorities and result
in delays in processing permits for other applicants. Moreover, at
present, devoting these limited permitting authority resources to
biomass sources would not be productive in light of the possibility
that EPA may ultimately determine that the utilization of some or all
biomass feedstocks for bioenergy has a negligible (or de minimis),
negative, or positive net impact on the carbon cycle.
    Therefore, the information EPA has collected since promulgating the
Tailoring Rule indicates that it is consistent with the rationale of
the Tailoring Rule for affected permitting authorities to defer on a
temporary basis biogenic CO2 emissions from PSD and Title V
applicability. During this deferral, EPA will conduct a detailed
examination of the science associated with biogenic CO2
emissions from stationary sources, which will include a peer review by
the SAB, and resolve technical issues in order to account for biogenic
CO2 emissions in ways that are scientifically sound and also
manageable in practice.
    As noted previously, EPA based the Tailoring Rule on the extreme
administrative burdens to permitting authorities, and undue costs to
sources, that would result from a literal application of the PSD and
Title V 100/250 tpy statutory thresholds, as of January 2, 2011, when
those requirements first applied to GHGs. EPA reasoned that, in
accordance with the Chevron analytical framework for statutory
construction, taking into account the ``absurd results'' and
``administrative necessity'' lines of cases, Congress did not intend
that the PSD and Title V requirements apply at the 100/250 tpy
statutory thresholds to GHG-emitting sources as of January 2, 2011, but
rather that those requirements could be limited, at least initially,
through a phase-in approach, to higher-emitting sources.
    Just as the extensive workload of processing permit applications
from sources below the Tailoring Rule thresholds justified exempting
those sources at least from the initial steps in the Tailoring Rule
phase-in program, so too the extensive workload associated with
analyzing and accounting for biogenic CO2 emissions as part
of processing permit applications from biomass facilities justifies
exempting those sources for a period of time, in the affected states,
pending EPA's development of a consistent and practical framework for
determining net carbon cycle impacts. The three-year deferral EPA is
finalizing in this action is reasonable to allow time for the
development of the accounting framework and subsequent rulemaking.
    In effect, this deferral is a step back from the Tailoring Rule's
approach but the decision to defer the applicability of PSD and Title V
to biogenic CO2 emissions is nonetheless supported, in part,
on the same rationale as EPA used to justify the Tailoring Rule's
phase-in approach. This action constitutes a refinement of the approach
EPA has taken to regulate GHG emissions from stationary sources through
a phased-in approach, based on an evolving understanding of the
complexities, uncertainties, and nuances associated with biogenic
emissions.
    An alternative way to reduce the permitting burden would be to
apply PSD and Title V to all facilities with biogenic CO2
emissions that emit at or above the Tailoring Rule thresholds, but
without making any effort to take into account net carbon cycle
impacts. However, we believe that it is conceivable that as a result of
the scientific examination of biogenic CO2 emissions, we
could conclude that the net carbon cycle impact for some biomass
feedstocks is trivial, negative, or positive. Accordingly, this could
result in regulation of sources with trivial or positive impacts on the
net carbon cycle, as previously discussed. To avoid this outcome, given
our current state of knowledge, we believe a case-by-case net carbon
cycle impact analysis would be required in the course of reviewing each
permit application. This burden would be in addition to the currently
existing burden associated with obtaining a PSD or Title V permit. In
light of the permitting burdens assessed in the Tailoring Rule, adding
to that burden in many states would frustrate the goals we sought to
accomplish in the Tailoring Rule to ensure that the PSD and Title V
programs can be administered in each state.
    Furthermore, given the potential that the utilization of at least
some biomass feedstocks may have a negligible impact on the net carbon
cycle, engaging in this type of burdensome analysis may not be an
optimal use of the limited resources of PSD and Title V permitting
authorities. The additional scientific examination being undertaken by
the EPA could ultimately conclude that

such resources could have been more effectively utilized to target
CO2 emissions that clearly have a detrimental impact on the
net carbon cycle. Establishing a three-year deferral period for
biogenic CO2 emissions will enable EPA to consider the
results of the detailed examination of the science of these emissions
and undertake a rulemaking to determine the best way to account for
biogenic CO2 emissions when determining PSD applicability.
    Another important reason for the three-year deferral period is to
allow sufficient time to consider the unique characteristics and
attributes of biogenic CO2 feedstocks, as opposed to other
sources of GHG, using the results from the detailed examination
mentioned previously, within both the state permitting agencies and
affected facilities. While the interim BACT guidance described
previously will help alleviate some of this burden before the deferral
becomes effective, we expect that more and more diverse users of
biomass combustion or other biogenic CO2 sources are likely
to be affected under step 2 of the Tailoring Rule because, under step
2, these sources can trigger permitting requirements based solely on
their GHG emissions with no prerequisite requirement that they
otherwise trigger PSD or Title V permitting requirements for a non-GHG
pollutant. We believe, absent the deferral period and the completion of
EPA's full analysis of the unique technical issues associated with
these diverse facilities emitting biogenic CO2, that it
would be particularly challenging for many of the permitting
authorities and facilities to process permits involving these
emissions. Also, as described elsewhere in this preamble, this interim
deferral is intended to temporarily exclude biogenic CO2
emissions from the definition of ``subject to regulation,'' as that
term was defined for purposes of the Tailoring Rule, for a period of
three years, while EPA further considers, through notice and comment
rulemaking, the approach to accounting for these emissions on a
permanent basis.
b. One-Step-at-a-Time Doctrine
    EPA relied, in part, on the ``one-step-at-a-time'' doctrine, which
authorizes agencies to implement statutory requirements a step at a
time, in finalizing the Tailoring Rule. 75 FR 31514, 31578 (June 3,
2010). As described in the Tailoring Rule and earlier in the preamble,
the case law recognizing the ``one-step-at-a-time'' doctrine, within
the Chevron framework, justifies an agency's step-by-step approach
under the following circumstances or conditions: (1) The agency's
ability to comply with a statutory directive depends on facts,
policies, or future events that are uncertain; (2) the agency has
estimated the extent of its remaining obligation; (3) the agency's
incremental actions are structured in a manner that is reasonable in
light of the uncertainties; and (4) the agency is on track to full
compliance with the statutory requirements.
    In the proposed rule, EPA stated in footnote 13 that the ``one-
step-at-a-time'' doctrine was not relevant to this rulemaking. This
statement was made without explanation. One commenter (EPA-HQ-OAR-2011-
0083-0084) stated ``[b]ased on EPA's statements in the Tailoring Rule,
which does rely on the `one-step-at-a-time' doctrine, it appears that
the doctrine would apply equally well to EPA's decision to delay
regulation of biogenic CO2 emissions under the PSD and Title
V programs.'' For the reasons stated below, EPA now agrees that,
because of the complexity and uncertainty of the science associated
with accounting for biogenic sources of CO2, the interim
deferral of the PSD and Title V program for such emissions would be a
reasonable exercise of the ``one-step-at-a-time'' doctrine.
    First, as the DC Circuit stated in National Association of
Broadcasters v. FCC, 740 F.2d 1190, 1210 (DC Cir. 1984) (``National
Association of Broadcasters''), incremental agency action is most
readily justifiable ``against a shifting background in which facts,
predictions, and policies are in flux and in which an agency would be
paralyzed if all the necessary answers had to be in before any action
at all could be taken.'' Those circumstances are present here, and so
is the fact that the task at hand is extraordinarily demanding. As
discussed previously, EPA is in the process of conducting a detailed
examination of the science associated with biogenic CO2
emissions from stationary sources to better understand their role on
the carbon cycle and to develop an accounting framework for use by
permitting authorities and sources. This examination will include
discussion with partners and scientists both inside and outside the
Federal government, as well as engagement with the Science Advisory
Board, to consider technical issues that the Agency must resolve in
order to account for biogenic CO2 emissions in ways that are
scientifically sound and also manageable in practice.
    Second, as the Court stated in National Association of
Broadcasters, ``the agency [should] ma[k]e some estimation, based upon
evolving economic and technological conditions, as to the nature and
magnitude of the problem it will have to confront when it comes to
[undertake the remaining steps]'' and that estimation must be
``plausible and flow from the factual record compiled.'' Id. at 1210.
Here, EPA has done this by deferring the applicability of PSD and Title
V to biogenic emissions of CO2 from stationary sources for
only as long as necessary for EPA to complete the needed scientific
study of these emissions, develop an accounting framework, and as
appropriate conduct rulemaking specific to the unique nature and
characteristics of these emission sources.
    In order to explore the issues further following the promulgation
of the Tailoring Rule, on July 15, 2010, EPA solicited views from the
public through the CFI on approaches to accounting for biogenic
CO2 emissions, including whether some or all of a source's
biogenic CO2 emissions could be discounted based on a
determination that they are canceled out by the CO2
absorption associated with growing the fuel (75 FR 41173). Also, we
solicited information on the means to estimate and measure
CO2 emissions from a variety of biogenic CO2
sources that typically have not been part of emission inventories
(e.g., CO2 from landfills, livestock management, and
fermentation processes), as well as information on other biogenic
sources that may be affected but which were not identified specifically
in the CFI.
    With promulgation of the Tailoring Rule, we committed to issue
technical and policy guidance for permitting of GHGs. Subsequently, the
information gathered from stakeholders in response to the CFI provided
diverse perspectives on treatment of biogenic CO2 emissions
in pre-construction and operating permit reviews, including many
requests to exclude, either partially or wholly, biogenic
CO2 sources from PSD applicability determinations and BACT
analyses on the basis of Inventory results and other considerations.
    Third, again as the Court stated in National Association of
Broadcasters, it must be ``reasonable, in the context of the decisions
made in the proceeding under review, for the agency to have deferred
the issue to the future. With respect to that question, postponement
will be most easily justified when an agency acts against a background
of rapid technical and social change and when the agency's initial
decision as a practical matter is reversible should the future
proceedings yield drastically unexpected results.'' Id. at 1211. Here,

our deferral is reasonable in light of the technical and scientific
questions that are raised by biogenic emissions from stationary
sources, which will be addressed by EPA's ongoing study, development of
an accounting framework, and any subsequent rulemaking. As explained in
the proposal and elsewhere in the preamble to this final rule, EPA
believes it has the authority to exclude biogenic CO2
emissions from the PSD and Title V requirements for the proposed three-
year deferral period and will be exploring whether a permanent
exemption is appropriate for at least some and perhaps all types of
feedstocks.
    However, the possibility also remains that more detailed
examination of the science of biogenic CO2 will demonstrate
that the utilization of some biomass feedstocks for bioenergy
production will have a significant impact on the net carbon cycle,
making literal application of the PSD program requirements to such
emissions, consistent with the Tailoring Rule, necessary to fulfill
congressional intent. Thus, EPA is finalizing only a temporary, rather
than a permanent, deferral of PSD requirements for such sources at this
time. EPA notes that the issue of subsequent applicability of the PSD
and Title V programs to facilities that may be permitted during the
deferral period is discussed in more detail in section II.C.
    Finally, as the DC Circuit stated in Grand Canyon Air Tour
Coalition v. F.A.A., 154 F.3d 455, 477-78 (DC Cir. 1998), the Courts
will accept an initial step towards full compliance with a statutory
mandate, as long as the agency is headed towards full compliance, and
we now believe that the doctrine is applicable here.
    As we have described in the CFI, the preamble to the proposed
deferral and elsewhere in the preamble for this final rule, there is
little question as to the complexity in accounting for and
understanding the impact of biogenic CO2 emissions from
stationary sources on net atmospheric CO2 emissions such
that sources and permitting authorities may not reasonably be expected
to comply with or implement PSD and Title V applicability requirements
in the near term. As described elsewhere in this preamble, the deferral
is limited to three years, and EPA may, before the expiration of the
deferral, undertake additional rulemaking to clarify the applicability
of PSD and Title V permitting requirements for specific categories of
biogenic emissions as may be appropriate based on the scientific record
EPA is currently developing. See Grand Canyon Air Tour, 891 F.2d at
476-77 (upholding agency action as a step towards full compliance with
statutory mandate when the agency expected full compliance to occur
some 20 years after the deadline in the statute).
    This rulemaking constitutes an initial step toward full compliance,
and, seen in that light, is supported by the ``one-step-at-a-time''
doctrine.
c. EPA Not Required to Regulate Where Benefits of Regulation Would Be
Trivial
    EPA believes it has the authority to exclude biogenic
CO2 emissions from the PSD and Title V requirements, if
scientific analysis supports conclusions about the nature of biogenic
CO2 in question that in turn support such an exclusion; the
agency will be using the three-year deferral period to better
understand the science associated with biogenic CO2
emissions and to explore whether or not a permanent exemption is
permissible for at least some and perhaps all types of feedstocks.
    Courts have recognized that administrative agencies have the
implied authority to establish exemptions ``when the burdens of
regulation yield a gain of trivial or no value.'' Alabama Power Co. v.
Costle, 636 F.2d 323, 360 (DC Cir. 1980). In this decision that
specifically addressed the requirements of the PSD program, the DC
Circuit described this principle as follows:

    Categorical exemptions may also be permissible as an exercise of
agency power, inherent in most statutory schemes, to overlook
circumstances that in context may fairly be considered de minimis.
It is commonplace, of course, that the law does not concern itself
with trifling matters, and this principle has often found
application in the administrative context. Courts should be
reluctant to apply the literal terms of a statute to mandate
pointless expenditures of effort. Id. (internal citations omitted).

In an earlier case cited by the court in Alabama Power, the court
described the doctrine as follows:

    The `de minimis' doctrine that was developed to prevent trivial
items from draining the time of the courts has room for sound
application to administration by the Government of its regulatory
programs. * * * The ability, which we describe here, to exempt de
minimis situations from a statutory command is not an ability to
depart from the statute, but rather a tool to be used in
implementing the legislative design. District of Columbia v.
Orleans, 406 F.2d 957, 959 (1968).

In this respect, the Alabama Power opinion observed in a footnote that
the de minimis principle ``is a cousin of the doctrine that,
notwithstanding the `plain meaning' of a statute, a court must look
beyond the words to the purpose of the act where its literal terms lead
to `absurd or futile results.' '' Id. at 360 n. 89 (citations omitted).
    To apply an exclusion based on the de minimis doctrine, ``the
agency will bear the burden of making the required showing'' that a
matter is truly de minimis which naturally will turn on the assessment
of particular circumstances. Id. The Alabama Power opinion concluded
that ``most regulatory statutes, including the CAA, permit such agency
showings in appropriate cases.'' Id.
    A notable limitation on the de minimis doctrine is that it does not
authorize the agency to exclude something on the basis of a cost-
benefit analysis. As the court explained, this ``implied authority is
not available for a situation where the regulatory function does
provide benefits, in the sense of furthering the regulatory objectives,
but the agency concludes that the acknowledged benefits are exceeded by
the costs.'' Id. The court held that any ``implied authority to make
cost-benefit decisions must be based not on a general doctrine but on a
fair reading of the specific statute, its aims and legislative
history.'' Id.
    Since Chevron, several courts have recognized de minimis exceptions
(1) so long as they are not contrary to the express terms of the
statute and (2) the agency's interpretation of the exception is a
permissible reading of the statute. See e.g., Ober v. Whitman, 243 F.3d
1190 (9th Cir. 2001); see also Ohio v. EPA, 997 F.2d 1520 (D.C. Cir.
1993).
    The CAA is not so rigid as to preclude a de minimis exception.
Since the early years of the PSD program, EPA has applied this de
minimis principle to establish various types of values in the PSD
regulations that may be used to exempt categories of source from all or
part of the PSD program requirements.
    EPA also relied on the de minimis doctrine to establish values that
permitting authorities can use to show that a source that requires a
PSD permit meets the necessary criteria to obtain a permit. Significant
impact levels may be used in particular ways identified in prior EPA
rules and guidance as part of an assessment of whether a source causes
or contributes to a violation of air quality standards. Significant
monitoring concentrations may be used to exempt sources from pre-
construction monitoring requirements. See 75 FR 64864, 64890-97
(October 20, 2010).
    Due to the complexity and uncertainty of the science associated
with accounting for biogenic CO2 emissions and their impact
on the carbon cycle and net atmospheric CO2

levels, requiring regulation of biogenic sources of CO2 at
this time may lead to only trivial environmental benefits while
exacerbating the regulatory burdens and absurd results the Tailoring
Rule was intended to avoid because the subsequent scientific study may
show that certain biogenic feedstocks have a trivial or even positive
impact on net atmospheric CO2 levels.
d. Potential for Some Biomass Feedstocks To Have a de minimis, Neutral
or Positive Impact on Net CO2 Levels in the Atmosphere
    As discussed previously in this preamble, EPA believes based on
information currently before the Agency that at least some biomass
feedstocks that may be utilized to produce energy or other products
have a negligible impact on the net carbon cycle, or possibly even a
positive net effect. Within the context of the PSD and Title V
programs, the argument for treating CO2 emissions from
bioenergy and biogenic sources differently from fossil-based
CO2 emissions at the facility relies on the premise that
sequestration occurs offsite, outside the boundaries of the facility.
Such a negligible or positive impact on the carbon cycle and net
atmospheric CO2 levels should not count towards the PSD and
Title V applicability requirements. It appears that the potential may
exist for EPA to determine that other types of biomass feedstocks would
have a negligible impact on the net carbon cycle impact after further
detailed examination of the science associated with biogenic
CO2 emissions.
    Thus, if EPA were to require all bioenergy facilities or other
sources of biogenic CO2 emissions to limit emissions of
CO2 before this assessment is complete, it may later
determine that such actions have required regulation of a trivial
amount of emissions or even potentially of emissions that are
associated with a net CO2 emissions benefit. To avoid this
outcome, and because of the scientific uncertainty and administrative
burdens associated with accounting for net biogenic CO2
emissions relative to the carbon cycle, EPA believes an initial
deferral of the PSD requirements for bioenergy and other biogenic
sources is justified at this time to conduct the detailed scientific
evaluation described elsewhere in the preamble. However, the
possibility also remains that EPA's detailed examination of the science
of biogenic CO2 will demonstrate that the utilization of
some biomass feedstocks for bioenergy production will have a
significant impact on the net carbon cycle, making application of the
PSD program requirements to such emissions necessary to fulfill
congressional intent. Thus, EPA is finalizing only a temporary, rather
than a permanent, deferral of PSD requirements at this time in order
for EPA to conduct a study of the science surrounding biogenic
CO2 emissions and their role in the carbon cycle and to
develop an accounting framework to help further relieve the burdens
faced by permitting authorities. EPA is also seeking an independent
peer review of the science and accounting framework by the Science
Advisory Board to resolve the uncertainties that have been highlighted
by commenters in response to the CFI and the proposal to this action.

C. Facilities Permitted During Deferral

    The final rule is an interim deferral for biogenic CO2
emissions only and does not relieve sources of the obligation to meet
the PSD and Title V permitting requirements for other pollutant
emissions that are otherwise applicable to the source during the
deferral period or that may be applicable to the source at a future
date pending the results of EPA's study and subsequent rulemaking
action.
    This means, for example, that if the deferral is applicable to
biogenic CO2 emissions from a particular source during the
three-year effective period and the study and future rulemaking do not
provide for a permanent exemption from PSD and Title V permitting
requirements for the biogenic CO2 emissions from a source
with particular characteristics, then the deferral would end for that
type of source and its biogenic CO2 emissions would have to
be appropriately considered in any applicability determinations that
the source may need to conduct for future stationary source permitting
purposes, consistent with that subsequent rulemaking and the Final
Tailoring Rule (e.g., a major source determination for Title V purposes
or a major modification determination for PSD purposes).
    EPA also wishes to clarify that we did not propose and this rule
does not require that a PSD permit issued during the deferral period be
amended or that any PSD requirements in a PSD permit existing at the
time the deferral takes effect, such as BACT limitations, be revised or
removed from an effective PSD permit for any reason related to the
deferral or when the deferral period expires.
    Section 52.21(w) requires that any PSD permit shall remain in
effect, unless and until it expires or it is rescinded, under the
limited conditions specified in that provision. Also note that we did
not specifically propose or make final any change to these rescission
provisions, nor were they addressed to any extent in the proposal.
Thus, a PSD permit that is issued to a source while the deferral was
effective need not be reopened or amended if the source is no longer
eligible to exclude its biogenic CO2 emissions from PSD
applicability after the deferral expires. However, if such a source
undertakes a modification that could potentially require a PSD permit
and the source is not eligible to continue excluding its biogenic
CO2 emissions after the deferral expires, the source will
need to consider its biogenic CO2 emissions in assessing
whether it needs a PSD permit to authorize the modification. With
respect to Title V, a source that becomes a major source subject to an
approved Title V permit program as a result of biogenic emissions after
the deferral expires would generally have one year from the date the
source became subject to Title V to apply for an operating permit.
    Any future actions to modify, shorten, or make permanent the
deferral for biogenic sources are beyond the scope of this action and
will be addressed through subsequent rulemaking, based on the
scientific study and development of an accounting framework described
elsewhere in this preamble. At this time, the results of EPA's review
of the science related to net atmospheric impacts of biogenic
CO2 and the framework to properly account for such emissions
in Title V and PSD permitting programs based on the study are
prospective and unknown. Thus, we are unable to predict which biogenic
CO2 sources, if any, currently subject to the deferral would
be subject to any permanent exemptions or which currently deferred
sources would be potentially required to account for their emissions in
the future rulemaking EPA has committed to undertake for such purposes
in three or fewer years. Only in that rulemaking can EPA address the
question of extending the deferral or putting in place requirements
that would have the equivalent effect on sources covered by this
deferral.
    To the extent the deferral is not effective in a particular state
at the time a PSD permit is issued, then the permit would need to
include BACT limitations for GHGs if the source emits above levels that
make GHGs subject to regulation under applicable rules. EPA issued
interim guidance entitled, ``Guidance for Determining Best Available
Control Technology for Reducing Carbon Dioxide Emissions from Bioenergy
Production'' to help permitting authorities, during the interim period
before the deferral is

effective, establish a basis for concluding that under PSD Programs the
combustion of biomass fuels can be considered BACT for biogenic
CO2 emissions at stationary sources. To be clear, this
guidance would apply during the deferral period for those permitting
authorities where the deferral was not effective until EPA revises it
or it is superseded by future guidance or rules.

D. Mechanism for Deferral and State Implementation

    Consistent with the proposed rule, EPA is implementing the deferral
by amending the definition of ``subject to regulation'' in its PSD and
Title V regulations. The adoption of the deferral for biogenic
CO2 emissions from Title V and PSD permitting programs under
40 CFR part 70 and 40 CFR 51.166 is optional for any state, local, or
tribal (state) permitting authority, but is effective immediately upon
publication for Title V and PSD permitting programs under 40 CFR part
71 and 40 CFR 52.21 that EPA implements.
    The proposal did not specifically require each state to revise its
PSD and Title V permitting programs (required under parts 51.166 and
70) to impose the deferral for three years, although it was clear that
the proposal was intended to revise the permitting programs that EPA
implements (required under parts 52.21 and part 71) for this purpose,
and it was clear that EPA intended to implement the deferral by
changing its implementing regulations. Many state commenters on the
proposal seemed to assume that the deferral was mandatory for the
states and questioned how they would revise their SIPs and Title V
programs by July 1, 2011, as they read EPA's proposal to require.
    For the purposes of this final rule, EPA is clarifying that each
state may decide if it wishes to adopt the deferral and proceed
accordingly, with appropriate program changes, if needed. Also, EPA
suggests that each state communicate with its stationary sources its
intent in this regard. Because the deferral is not required, states
that do not wish to revise their current permit programs do not need to
make any program changes in response to this final rule. Also, states
that do wish to adopt the deferral do not need to make any changes that
would otherwise be necessary by July 1, 2011, the start of step 2 under
the Tailoring Rule. Although the preamble for the proposal did discuss
the beginning of step 2 of the Tailoring Rule as a time when more
sources would be subject to permitting, because sources could be
subject to Title V without a prerequisite that they also be subject to
PSD and because they could be subject to PSD for GHGs without being
subject first for another regulated NSR pollutant, it did not discuss
any requirement for any state deferral to be effective by July 1, 2011,
and we are not requiring this in this final rule.
    However, although state program changes are not required under
today's final rule, EPA sees several reasons that a state should adopt
the deferral in its state programs and, based on comments received, EPA
expects that many states will adopt the deferral. Many of these reasons
are the same reasons prompting EPA to adopt the deferral for the permit
programs we implement. That is, states that expect to receive permit
applications from a number of biomass facilities, and, in particular, a
number of different types of biomass facilities, are likely to need
more time to determine how best to address technical, scientific, and
practical issues related to biogenic CO2 without disrupting
the proper functioning and timeliness of the permitting programs. Of
course, it is at least in theory possible that such a state may, on its
own, be able to address those issues, or may for other reasons have
adequate resources to address those issues. Even so, we expect that
many states will need to, and therefore should, adopt the deferral, and
therefore, like the proposal, this final rule strongly encourages
states that wish to adopt the three-year deferral to submit SIP
revisions or Title V program revisions. However, like the proposal,
this final rule does not mandate such submittals, recognizing that some
states may not have any (or may have only a few) sources that combust
biomass, and may have adequate information and resources regarding the
nature of biogenic emissions from those sources, or may for other
reasons be able to conduct permitting of bioenergy sources without
straining their permitting resources.
    Furthermore, the justification that supports this deferral for
including biogenic CO2 in PSD applicability determinations
is not applicable in the case of a PSD permit that was issued before
completion of this rule during step 1 of the phase in of GHG
requirements under the Tailoring Rule. If a permit has been issued,
then the burden described above has already been experienced and
overcome by the permitting authority. Furthermore, this burden will
have been experienced in the context of step 1 of the GHG permitting
phase under the Tailoring Rule, and thus was easier to accommodate as
part of the more limited increase in workload that permitting
authorities have faced in addressing GHG requirements during step 1. In
the context of step 2 where permitting authorities will have to process
a greater number of permit applications, the incremental burden of
evaluating the net atmospheric impacts of biogenic CO2 has a
more significant impact on the ability of permitting authorities to
administer the permitting programs. This analysis adds a burden that
EPA had not considered when it completed the Tailoring Rule.
    EPA also issued interim guidance entitled, ``Guidance for
Determining Best Available Control Technology for Reducing Carbon
Dioxide Emissions from Bioenergy Production'' to help permitting
authorities establish a basis for concluding that under the PSD Program
the combustion of biomass fuels can be considered BACT for biogenic
CO2 emissions at stationary sources until such time as the
deferral becomes effective. EPA wishes to clarify that the guidance is
non-binding and case-by-case BACT determinations made in accordance
with the guidance may nonetheless be subject to challenge in each
permitting action. Accordingly, the interim guidance does not provide
the same level of certainty to sources and decrease in administrative
burdens to permitting authorities and sources that the deferral does.
    EPA developed the interim BACT guidance primarily for application
during step 1 of the phase of GHG permitting requirements under the
Tailoring Rule. While the guidance suggests reasoning that may serve to
reduce the resource demands of conducting a net carbon cycle analysis
in the context of permitting, it does not eliminate the need for
permitting authorities to conduct some evaluation of energy,
environmental, and economic impacts in step 4 of the BACT analysis. The
guidance discusses the complexities of conducting a net carbon cycle
analysis, but places the emphasis on showing the economic and energy
benefits of utilizing biomass. Permitting authorities that apply this
approach still need to identify the specific energy and economic
benefits of utilizing particular biomass feedstocks to apply this
rationale. To the extent these benefits cannot be identified or shown
to override other considerations, a permitting authority may need to
explore the net carbon cycle impact in more depth to justify the
conclusion that utilization of a biomass feedstock is BACT by itself.
In states that do not elect to adopt the deferral, the incremental
burden of conducting the analysis described in the guidance will have a
more significant impact on the

overall ability to administrate the permitting program in the context
of step 2 of the GHG permitting than it did in step 1, in which the
overall increase in workload from incorporating GHG requirements into
PSD permit reviews was less than it will be in step 2.
    This deferral may not be effective in any jurisdiction before EPA
publishes a final rule and it takes effect. Also, for any state that
found it necessary to revise its permitting programs to implement the
Final Tailoring Rule, EPA believes it unlikely that such a state would
be able to implement the deferral under its state rules without making
additional changes to its program consistent with the regulatory
changes in this final rule. For any state that was able to implement
the Final Tailoring Rule through interpretation of the term ``subject
to regulation'', consistent with the Final Tailoring Rule, without
making any changes to state regulations, EPA believes it is likely they
would be able to implement the deferral under their state rules without
making additional revisions. In either of these cases, EPA recommends
that states communicate with the stationary sources under their
jurisdiction regarding whether they intend to adopt the deferral, and
if they do, when it will become effective.

III. Response to Public Comments

A. Overview of Public Comments

    We received a significant number of public comments on the proposed
deferral. Some of these comments covered issues such as:

     Content of the Deferral (e.g., pollutants and sources
covered, start and end date, terminology);
     Implementation of the Deferral; and
     Legal Authority.

While those comments addressed the deferral itself, a large number of
the comments actually raised issues outside the scope of this
rulemaking and covered topics such as:

     Science, accounting, and economic issues related to
biogenic CO2 emissions (e.g., carbon cycle dynamics,
accounting methodologies, forest economics and sustainability);
     PSD, Title V and the Tailoring Rule; and
     The Interim Guidance, ``Guidance For Determining Best
Available Control Technology for Reducing Carbon Dioxide Emissions
From Bioenergy Production'' (March 21, 2011).

    EPA acknowledges those comments that are outside the scope of this
rulemaking and notes that many of the issues raised were similar, if
not identical, to those presented in comments to the CFI last year. We
will be considering those topics as part of the detailed examination of
the science and technical issues associated with accounting for
biogenic CO2 emissions from stationary sources. We also may
consider the issues in any subsequent rulemakings we undertake related
to the PSD, Title V and other stationary source programs. However, we
do not respond to them in this rulemaking.
    The sections below contain a brief summary of the some of the major
comments and responses we received on the proposal. Responses to the
substantive comments can be found in the response to comments document
entitled, ``Deferral for CO2 Emissions from Bioenergy and
Other Biogenic Sources under the Prevention of Significant
Deterioration (PSD) and Title V Programs, Summary of Public Comments
and Responses,'' available in docket EPA-HQ-OAR-2011-0083.

B. Comments on the Deferral

    We received comments on different aspects of the deferral. They fit
into several broad categories as discussed below.
    Terminology. We received several comments requesting clarity on the
terminology in the deferral, including the terms biogenic
CO2 emissions, biologically-based material and examples of
the types of sources that these emissions can come from. As discussed
in section II, we finalized the terms biogenic CO2 emissions
(described as, emissions of CO2 from a stationary source
directly resulting from the combustion or decomposition of
biologically-based materials other than fossil fuels and mineral
sources of carbon (e.g. calcium carbonate)) and biologically-based
material (non-fossilized and biodegradable organic material originating
from plants, animals or micro-organisms [including products, by-
products, residues and waste from agriculture, forestry and related
industries as well as the non-fossilized and biodegradable organic
fractions of industrial and municipal wastes, including gases and
liquids recovered from the decomposition of non-fossilized and
biodegradable organic material]) with very little change. We added the
clause about ``mineral sources'' of carbon to biogenic CO2
emissions in response to requests for additional clarification on which
sources of CO2 were not included in the deferral. We also
clarified that in the examples of sources of biogenic CO2
emissions, CO2 from fermentation includes CO2
from ethanol production as well as other industrial processes.
    Pollutants. We received comments on which pollutants are covered by
the deferral, particularly methane (CH4) and nitrous oxide
(N2O). A few comments requested that CH4 and
N2O also be included in the deferral as they result when
biomass is combusted. While CH4 and N2O are
produced when biomass is combusted, the level of emissions and
resulting impact on atmospheric concentrations of these gases are
primarily related to the feedstock handling and combustion conditions
at the specific plant rather than the source of the feedstocks. We
finalized this rule as proposed and included only biogenic
CO2 emissions for this reason, and note that emissions of
non-CO2 GHGs are typically a small proportion of the total
GHG emissions from combustion of biologically based material. Since the
non-CO2 GHGs are so small relative to CO2, the
deferral of biogenic CO2 emissions will ensure the biomass
combustion projects will likely not meet the applicability thresholds
based on their CH4 and N2O emissions alone.
    Duration. We received several comments on the duration of the
deferral, including its start date and end date. Specifically, several
comments recommended that EPA remove the three-year sunset date and
make the deferral permanent until the Agency completes its study and
takes further action. Others concluded EPA does not need three years to
complete its work and should shorten the deferral.
    EPA is conducting a detailed examination of the science and
technical issues associated with biogenic CO2 emissions and
is developing an accounting framework. Once that work is complete, the
Agency intends to undertake a notice-and-comment rulemaking to
establish the treatment of these emissions in the PSD and Title V
programs. We have determined that three years will be required to
complete the scientific work as well as the follow-on rulemaking. As
stated in section II of this preamble, the deferral is intended to be a
temporary measure to allow the Agency time to complete its work and
determine what, if any, treatment of biogenic CO2 emissions
should be in the PSD and Title V programs. Therefore, we did not agree
to make the deferral permanent or to shorten it.
    Sources covered by and permitted during the deferral. We received
several comments requesting clarity on which sources of biogenic
CO2 emissions were covered by the deferral. This is related
to the comments on definitions described above, and we provided clarity
on those sources, where necessary. We also received several comments on
the application of the PSD and Title V programs during the

deferral, including the availability of grandfathering or a permitting
moratorium for sources subject to the deferral and on the availability
of authority to revise BACT.
    The final rule is an interim deferral for biogenic CO2
emissions only and does not relieve sources of the obligation to meet
the PSD and Title V permitting requirements for other pollutant
emissions that are otherwise applicable to the source during the
deferral period or that may be applicable to the source at a future
date pending the results of EPA's study and subsequent rulemaking
action. At this time, we are unable to predict which biogenic
CO2 sources, if any, currently subject to the deferral would
be subject to any permanent exemptions or which currently deferred
sources would be potentially required to account for their emissions in
relation to future permitting actions as a result of the future
rulemaking EPA has committed to undertake for such purposes in three or
fewer years. Only in that rulemaking can EPA address the question of
extending the deferral or putting in place requirements that would have
the equivalent effect on sources covered by this deferral.
    This means, for example, that if the deferral is applicable to
biogenic CO2 emissions from a particular source during the
three-year effective period and the study and future rulemaking do not
provide for a permanent exemption from the PSD and Title V permitting
requirements for the biogenic CO2 emissions from a source
with particular characteristics, then the deferral would end for that
source and those biogenic CO2 emissions would have to be
appropriately considered in any applicability determinations that the
source may need to conduct for future stationary source permitting
purposes, consistent with that subsequent rulemaking and the Final
Tailoring Rule (e.g., a major source determination for Title V purposes
or a major modification determination for PSD purposes).
    Many commenters on the proposed deferral asked EPA to provide
grandfathering from permitting requirements for sources that are
currently not subject to permitting requirements but that in the future
may be covered by the deferral. In addition, some commenters asked for
the deferral to be made retroactively effective (e.g., during step 1 of
the Tailoring Rule or January 1, 2011 through June 30, 2011) in states
prior to state adoption of any SIP revision or Title V program change
that may be necessary to revise the programs to incorporate the
deferral, or that the deferral permanently apply to any source subject
to it at any time.
    As explained in section II.C of this preamble, EPA has decided to
not offer any kind of grandfathering or moratorium on future Title V
and PSD permitting for biogenic CO2 sources subject to the
three-year deferral.
    EPA wishes to clarify that we did not propose and this rule does
not require that a PSD permit issued during the deferral period be
amended or that any PSD requirements in a PSD permit existing at the
time the deferral takes effect, such as BACT limitations, be revised or
removed from an effective PSD permit for any reason related to the
deferral or when the deferral period expires.
    Section 52.21(w) requires that any PSD permit shall remain in
effect, unless and until it expires or it is rescinded, under the
limited conditions specified in that provision. To the extent the
deferral is not effective in a particular state at the time a PSD
permit is issued, then the permit would need to include BACT
limitations for GHGs if the source emits above levels that make GHGs
subject to regulation under applicable rules.
    Thus, a PSD permit that is issued to a source while the deferral
was effective need not be reopened or amended if the source is no
longer eligible to exclude its biogenic CO2 emissions from
PSD applicability after the deferral expires. However, if such a source
undertakes a modification that could potentially require a PSD permit
and the source is not eligible to continue excluding its biogenic
CO2 emissions after the deferral expires, the source will
need to consider its biogenic CO2 emissions in assessing
whether it needs a PSD permit to authorize the modification.
    Any future actions to modify, shorten, or make permanent the
deferral for biogenic sources are beyond the scope of this action and
will be addressed through subsequent rulemaking, based on the
scientific study and development of an accounting framework described
elsewhere in this preamble.
    Implementation of the Deferral. We received comments suggesting
that adoption of the deferral must be mandatory for states, as well as
comments saying that the states should have flexibility regarding
adoption of the deferral. As explained in section II. D of this
preamble, EPA is not making adoption of this deferral mandatory. Each
state may decide if it wishes to adopt the deferral and proceed
accordingly, with appropriate program changes, if needed. Based on the
comments received, we recognize that some states may not have any, or
may have only a few, sources that combust biomass, and may have
adequate information and resources as to the nature of biogenic
emissions from those sources. That said, EPA recommends that each state
communicate with its stationary sources its intent in this regard and
utilize the interim guidance document as appropriate.
    Even though adoption of the deferral is not mandatory, EPA sees
several reasons why a state might want to adopt the deferral in its
state programs and many of these reasons are the same reasons why EPA
is adopting the deferral for the permit programs we implement (e.g.,
the need for more time to determine how to address technical,
scientific, and practical issues related to biogenic CO2
without disrupting the proper functioning and timeliness of the
permitting programs).
    However, although state program changes are not required under
today's final rule, EPA sees several reasons that a state might want to
adopt the deferral in its state programs; many of these reasons are the
same reasons prompting EPA to adopt the deferral for the permit
programs we implement (e.g., the need for more time to determine how
best to address technical, scientific, and practical issues related to
biogenic CO2 without disrupting the proper functioning and
timeliness of the permitting programs). Also, like the proposal, this
final rule strongly encourages states that wish to adopt the three-year
deferral to submit SIP revisions or Title V program revisions, but does
not mandate such submittals, recognizing that some states may not have
any (or may have only a few) sources that combust biomass, and may have
adequate information and resources regarding the nature of biogenic
emissions from those sources.
    Furthermore, the justification that supports this deferral for
including biogenic CO2 in PSD applicability determinations
is not applicable in the case of a PSD permit that was issued before
completion of this rule during step 1 of the phase-in of GHG
requirements under the Tailoring Rule. If a permit has been issued,
then the burden described above has already been experienced and
overcome by the permitting authority. Furthermore, this burden will
have been experienced in the context of step 1 of the GHG permitting
phase in under the Tailoring Rule, and thus was easier to accommodate
as part of the more limited increase in workload that permitting
authorities have faced in addressing GHG requirements during step 1. In
the context of step 2 where permitting authorities will have to

process a greater number of permit applications, the incremental burden
of evaluating the net atmospheric impacts of biogenic CO2
has a more significant impact on the ability of permitting authorities
to administer the permitting programs. This analysis adds a burden that
EPA had not considered when it completed the Tailoring Rule.
    As explained in section II.C of the preamble, EPA also issued
interim guidance entitled, ``Guidance for Determining Best Available
Control Technology for Reducing Carbon Dioxide Emissions from Bioenergy
Production'' to help permitting authorities establish a basis for
concluding that under PSD Program the combustion of biomass fuels can
be considered BACT for biogenic CO2 emissions at stationary
sources until such time as the deferral becomes effective. This
guidance may continue to assist permitting authorities where the
deferral is not effective during the deferral period until EPA revises
it or it is superseded by future guidance or rules. It should be noted
that the guidance is non-binding, and case-by-case BACT determinations
made in accordance with the guidance may nonetheless be subject to
challenge in each permitting action. Accordingly, the interim guidance
does not provide the same level of certainty to sources and decrease in
administrative burdens to permitting authorities and sources that the
deferral does.
    EPA developed the interim BACT guidance primarily for application
during step 1 of the phase-in of GHG permitting requirements under the
Tailoring Rule. While the guidance suggests reasoning that may serve to
reduce the resource demands of conducting a net carbon cycle analysis
in the context of permitting, it does not eliminate the need for
permitting authorities to conduct some evaluation of energy,
environmental, and economic impacts in step 4 of the BACT analysis. The
guidance discusses the complexities of conducting a net carbon cycle
analysis, but places the emphasis on showing the economic and energy
benefits of utilizing biomass. Permitting authorities that apply this
approach still need to identify the specific energy and economic
benefits of utilizing particular biomass feedstocks to apply this
rationale. To the extent these benefits cannot be identified or shown
to override other considerations, a permitting authority may need to
explore the net carbon cycle impact in more depth to justify the
conclusion that utilization of a biomass feedstock is BACT by itself.
In states that do not elect to adopt the deferral, the incremental
burden of conducting the analysis described in the guidance will have a
more significant impact on the overall ability to administrate the
permitting program in the context of step 2 of the GHG permitting than
it did in step 1, where the overall increase in workload from
incorporating GHG requirements into PSD permit reviews was less than it
will be in step 2.
    Legal Authority. We received several comments on EPA's legal
authority to issue the deferral. A number of commenters expressed the
view that EPA lacked the scientific basis to defer the applicability of
PSD and Title V permitting requirements to biogenic emissions of
CO2.
    A number of commenters argued that EPA had not demonstrated that
the deferral was necessary to avoid administrative burden or
impossibility, and that the science surrounding CO2
emissions from biogenic sources and their role in the carbon cycle is
settled enough to show that use of some or all biogenic feedstocks and
emissions do have an impact on net atmospheric concentrations of
CO2, or are not de minimis; therefore, these commenters
argued that such emissions should be regulated under the PSD and Title
V permitting programs.
    EPA disagrees with the commenters' characterization of the state of
the science and administrative burdens facing permitting agencies and
sources to account for biogenic sources of CO2 emissions as
part of permitting actions. EPA notes that it also received a number of
comments expressing the opposing view that a permanent deferral or
exclusion was necessary because biogenic emissions of CO2 do
not have an impact on atmospheric concentrations of CO2, or
that use of certain categories of feedstock do not have such an impact.
EPA also received comments from a number of permitting authorities and
sources expressing the view that the science surrounding the accounting
of net atmospheric CO2 emissions from biogenic sources,
given the carbon cycle, warranted further study and development of an
accounting framework to assist them with their permitting actions.
    EPA believes this diversity of views reflects the complexity of the
science associated with accounting for biogenic CO2
emissions as part of the PSD and Title V permitting programs. EPA
agrees, based on information currently before the Agency, including
information provided in response to the CFI and the proposal for this
rule, that emissions from certain biomass feedstocks may have a
negligible effect on atmospheric concentrations of CO2, but
also believes based on the complexity of this evidence that the
deferral to allow for further study is warranted. In addition, EPA is
conducting an independent peer review by the Science Advisory Board of
the science and accounting framework associated with biogenic
CO2 emissions, which will benefit permitting authorities.
    While the interim BACT guidance described elsewhere in the preamble
may help alleviate some of this uncertainty and burden for permitting
authorities where the deferral is not effective, we expect that more
and more diverse users of biomass combustion or other biogenic
CO2 sources are likely to be affected under step 2 of the
Tailoring Rule because, under step 2, these sources can trigger
permitting requirements based solely on their GHG emissions with no
prerequisite requirement that they otherwise trigger PSD or Title V
permitting requirements for a non-GHG pollutant. We believe, absent the
deferral period and the completion of EPA's full analysis of the unique
technical issues associated with these diverse facilities emitting
biogenic CO2, it would be particularly challenging for
permitting authorities and facilities to process permits involving
these emissions.
    A number of commenters challenged EPA's authority to amend the
regulatory definition of ``subject to regulation'' to exclude biogenic
sources of CO2 from regulation for three years under the
administrative law doctrines and rationale articulated in the Tailoring
Rule and elsewhere in this preamble. A number of commenters also
expressed the view that the deferral would lead to significant
development of the biomass industry during the deferral period and a
permanent exclusion for these sources, in contradiction to the CAA's
goal of protecting air quality.
    EPA disagrees with these commenters' characterization of the legal
authority and rationale in support of this interim deferral. As
described in Section II.B. of this preamble, this interim deferral is
intended only to temporarily exclude biogenic CO2 emissions
from the definition of ``subject to regulation,'' as that term was
defined for purposes of the Tailoring Rule, for a period of three
years, while EPA further considers, through notice and comment
rulemaking, the approach to accounting for these emissions on a
permanent basis. In response to commenters who speculate about the
likelihood of significant development of the biomass industry or
increases in the number of sources emitting biogenic CO2
during the deferral period, EPA

notes that a decision to move forward with development of a facility is
based on many economic and business factors, not just permitting
requirements, that are beyond the scope of this final action.
    This interim deferral represents a permissible application of well-
established administrative law doctrines, necessitated by the
scientific uncertainty surrounding the accounting of biogenic
CO2 emissions, to develop a regulatory scheme that
implements the CAA consistent with congressional intent in a step-wise
fashion designed to minimize administrative burdens and avoid premature
regulation of sources of air pollution whose biogenic CO2
emissions could be shown to have de minimis impacts on a net carbon
cycle basis after EPA completes further analysis. EPA notes that the
issue of subsequent applicability of the PSD and Title V programs to
facilities that may be permitted during the deferral period is
addressed in sections II.C.
    EPA's establishment of this deferral is permissible and, based upon
the information currently before the Agency, narrowly tailored to
effectuate congressional intent. It appears that the potential may
exist for EPA to determine that some other types of biomass feedstocks
would have a negligible impact on the net carbon cycle impact after
further detailed examination of the science associated with biogenic
CO2 emissions. Thus, if EPA were to require all bioenergy
facilities to limit emissions of biogenic CO2 before this
assessment is complete, it may later determine that such emissions have
trivial impact on the net carbon cycle. To avoid this outcome, and
because of the administrative burdens associated with accounting for
net biogenic CO2 emissions relative to the carbon cycle, EPA
believes an initial deferral of the PSD requirements for bioenergy and
other biogenic sources to allow for subsequent, phased-in regulations
is justified at this time. However, the possibility also remains that
EPA's detailed examination of the science of biogenic CO2
will demonstrate that the utilization of some biomass feedstocks for
bioenergy production will have a significant impact on the net carbon
cycle, making application of the PSD program requirements to such
emissions necessary to fulfill congressional intent.
    The extensive workload requirements required to understand the net
biogenic CO2 emissions from bioenergy facilities and other
sources of biogenic CO2 emissions, as part of the PSD and
Title V permit process, including specifically how to measure and
account for biogenic CO2 emissions, would unnecessarily
strain the resources of many permitting authorities and result in
delays in processing permits for other applicants. Moreover, at
present, devoting these limited permitting authority resources to
biomass would not be productive in light of the previously described
possibility that EPA may ultimately determine that the utilization of
some or all biomass feedstocks for bioenergy has a negligible or de
minimis impact on the net carbon cycle.
    EPA received a comment arguing that the deferral was also supported
under the ``one-step-at-a-time'' doctrine, which authorizes agencies to
implement statutory requirements a step at a time. EPA also relied, in
part, on this doctrine in finalizing the Tailoring Rule. 75 FR 31514,
31578 (June 3, 2010).
    In the proposed rule, EPA stated in footnote 13 that the ``one-
step-at-a-time'' doctrine was not relevant to this rulemaking. This
statement was made without explanation. The commenter stated ``[b]ased
on EPA's statements in the Tailoring Rule, which does rely on the `one-
step-at-a-time' doctrine, it appears that the doctrine would apply
equally well to EPA's decision to delay regulation of biogenic
CO2 emissions under the PSD and Title V programs.'' As
explained in more detail elsewhere in the preamble, EPA now agrees that
because of the complexity and uncertainty of the science associated
with accounting for biogenic sources of CO2 that the interim
deferral of the PSD and Title V program for such emissions would be a
reasonable exercise of the ``one-step-at-a-time'' doctrine.
    This rulemaking constitutes an initial step toward full compliance,
and, seen in that light, is supported by the ``one-step-at-a-time''
doctrine. Even if the doctrine were found to apply only when an agency
is committed to fully implementing statutory requirements according to
their literal terms, we believe that the interim deferral promulgated
in this final rule would be considered valid under the one-step-at-a-
time doctrine.
    EPA received a number of comments in favor of expanding the
deferral to CO2e or other GHGs, not just CO2. EPA
disagrees with the commenters seeking expansion of the deferral to
CO2e. As explained elsewhere in the preamble, while
CH4 and N2O are produced when biomass is
combusted, the level of emissions and resulting impact on atmospheric
concentrations of these gases are primarily related to the feedstock
handling and combustion conditions at the specific plant rather than
the source of the feedstocks. We finalized this rule as proposed and
included only biogenic CO2 emissions for this reason, and
note that emissions of non-CO2 GHG are typically a small
proportion of the total GHG emissions from combustion of biologically
based material. Since the non-CO2 GHG are so small relative
to CO2, the deferral of biogenic CO2 emissions
will ensure the biomass combustion projects will likely not meet the
applicability thresholds on their CH4 and N2O
emissions alone. Subsequent regulations to establish treatment of
specific sources of biogenic emissions under the PSD and Title V
programs are beyond the scope of this action.

C. Comments on Science, Accounting, and Economic Issues

    As noted above, we received a large number of comments that
provided the same or similar information to the comments received
through the CFI last year. Those comments are summarized briefly below
and also contained in the response to comments document. While we did
not respond to these comments as they are outside the scope of this
rulemaking, we will consider many of them during our ongoing work on
biogenic CO2 emissions.
    Carbon cycle dynamics. We received several comments on the net
atmospheric impact of biomass. Some commenters supported the conclusion
that biomass has zero net atmospheric impact based on the premise that
biomass is part of the natural carbon cycle and does not add additional
carbon to the atmosphere. Conversely, other commenters supported the
conclusion that biomass combustion increases the atmospheric carbon
load. Issues raised by commenters, including the time delays between
sequestration from and release to the atmosphere, differences between
feedstocks, influences of different spatial scale, and differences in
combustion efficiencies, are important in the development of accounting
methodologies and will be considered during the scientific review that
will take place during the three-year deferral period. EPA will
consider such issues in order to account for biogenic CO2
emissions from stationary sources in ways that are scientifically sound
and manageable in practice.
    Accounting methodologies used by other programs. We received
several comments discussing the accounting methodologies used in
international, U.S. government (including U.S. EPA) and state
regulatory and policy programs. The accounting approaches taken by
other programs, including other EPA programs, will be considered in
EPA's detailed examination of the scientific and technical issues
related to

biogenic CO2 emissions and any subsequent rulemakings we
undertake during the deferral period.
    Components of accounting methodologies. We received several
comments highlighting the challenges associated with different
components of biogenic CO2 emissions accounting
methodologies, including using ``business-as-usual'' (BAU) projections,
employing case-by-case analyses and considering a feedstock-based
accounting approach. EPA will consider these topics in our review of
the scientific and technical issues related to accounting for biogenic
CO2 emissions, as well as in the subsequent rulemaking to
establish the treatment of these emissions in the PSD and Title V
programs.
    Forest economics and sustainability. We received some comments
supporting forest biomass as an energy feedstock and discussing the
role of bioenergy markets in sustaining forest conservation. EPA thanks
the commenters for these comments and considers these views beyond the
scope of this deferral action.

D. Comments on PSD, Title V and the Tailoring Rule

    We received some comments on the PSD and Title V programs and how
they relate to the Tailoring Rule, including comments about the need to
adjust the thresholds for GHG applicability, facilities that should or
should not be covered, and the ultimate treatment of biogenic
CO2 in these programs. These comments are contained in the
response to comments document. The dates, thresholds and other
requirements established in the Tailoring Rule are not a subject of
this rulemaking and thus these comments are outside the scope of this
action.

E. Comments on the Interim Guidance

    We received some comments on the interim guidance document released
in March 2011 designed to help permitting authorities establish a basis
for concluding that under PSD and Title V Programs the combustion of
biomass fuels can be considered BACT for biogenic CO2
emissions at stationary sources before the deferral becomes effective.
These comments are contained in the response to comments document and
are briefly summarized below. While these comments are outside the
scope of this rulemaking, we will likely be considering many of them
during our ongoing work on biogenic CO2 emissions.
    Some commenters asserted that biogenic fuels should not be
considered BACT for controlling biogenic CO2 emissions at
energy projects, while others supported the inclusion of biogenic fuels
as BACT in the interim guidance. As stated in the March 2011 interim
guidance document, EPA has not provided a final determination of BACT
for any particular source, since such determinations can only be made
by individual permitting authorities on a case-by-case basis after
consideration of the record in each case. Upon consideration of the
record in an individual case, if a permitting authority has a reasoned
basis to address particular issues in a different manner than EPA
recommends in the bioenergy BACT guidance, they have the discretion to
do so. EPA is granting the deferral of biogenic CO2
emissions from stationary source permitting requirements because the
issue of accounting for the net atmospheric impact of biogenic
CO2 emissions is complex enough that further consideration
of this important issue is warranted.

IV. Statutory and Executive Order Review

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'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
Instead, this action will reduce costs incurred by any facility with
biogenic CO2 emissions, as well as permitting authorities,
relative to the costs that would be incurred if EPA did not revise the
rule.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB has previously approved the
information collection requirements contained in the existing
regulations for PSD (see, e.g., 40 CFR 52.21) and Title V (see 40 CFR
parts 70 and 71) under the provisions of the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0003
and OMB control number 2060-0336. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute, unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this action on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's regulations at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise that is independently owned and operated and is not
dominant in its field.
    After considering the economic impacts of this final action on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, 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, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
    We believe that this final rule will relieve the necessary analysis
and corresponding workload requirements for most affected facilities,
including small businesses, subject to the PSD and Title V programs. As
a result, the program changes provided in this rule are not expected to
result in a significant economic impact on a substantial number of
small entities. In addition, EPA determined that the final rulemaking
would not have a significant impact on small governmental
jurisdictions. The EPA has therefore concluded that this final action
will not have a significant economic impact on a substantial number of
small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This final rule does not contain a Federal mandate that may result
in expenditures of $100 million or more for state, local, and tribal
governments, in the aggregate, or the private sector in any one year.
Only those few states whose permitting authorities do not implement the
Federal PSD and Title V rules by reference in their SIPs will have a
small increase in burden. If those states choose to adopt this
deferral, they will have to amend their corresponding SIPs to
incorporate the amendments from today's action, as the deferral that we
finalized will not otherwise apply to the PSD and Title V programs.
Thus, this rule is not subject to the requirements of sections 202 or
205 of the UMRA.
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. As discussed
earlier, this rule is expected to result in an administrative burden
reduction for all affected permitting authorities and permittees,
including small governments.

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, as
specified in EO 13132. These amendments will simplify and reduce the
burden of implementing the PSD and Title V operating permit programs,
by deferral of PSD and Title V application requirements to biogenic
CO2 emissions at a facility. Thus, EO 13132 does not apply
to this action.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.''
    The EPA has concluded that this final rule may have Tribal
implications. However, it will neither impose substantial direct
compliance costs on Tribal government, nor preempt Tribal law. There
are no Tribal authorities currently issuing PSD and Title V permits;
however, this may change in the future.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the EO has the potential to influence the regulation. This action is
not subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in EO
13211 (66 FR 28355, May 22, 2001) because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Further, we have concluded that this rule is not likely to have
any adverse energy effects because this action would not create any new
requirements for sources in the energy supply, distribution, or use
sectors.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272 note) directs
EPA to use voluntary consensus standards in its regulatory activities
unless to do so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standards bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA is
not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the U.S.
    The EPA has determined that this rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment, as any impacts that it will have will be global in nature
and will not affect local communities or populations in a manner that
adversely affects the level of protection provided to human health or
the environment.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the