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6560-50-P 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-HQ-OAR-2010-0133; FRL-xxxx-x] 

Determinations Concerning Need for Error Correction, Partial 

Approval and Partial Disapproval, and Federal Implementation 

Plan Regarding Texas Prevention of Significant Deterioration 

Program; Proposed Rule 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to correct its previous full approval 

of Texas’s Clean Air Act (CAA) Prevention of Significant 

Deterioration (PSD) program to be a partial approval and partial 

disapproval and is proposing a Federal Implementation Plan (FIP) 

for Texas. This action is based on EPA’s determination that 

Texas’s PSD program is flawed because the state did not address 

how the program would apply to all pollutants that would become 

newly subject to regulation in the future, including nonNational Ambient Air Quality Standard (NAAQS) pollutants, among 

them greenhouse gases (GHGs). The partial disapproval requires 

EPA to promulgate a FIP and, so EPA is also proposing a FIP in 

order to assure that GHG-emitting sources in Texas are able to 

proceed with plans to construct or expand. In the “Rules” 
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section of this Federal Register, we are taking this action 

including the FIP thorough interim final rule that is effective 

immediately.

DATES: Comments. Comments must be received on or before 

February 12, 2011. 

Public Hearing: A public hearing will be held on January 14, 

2011. Please refer to SUPPLEMENTATY INFORMATION for additional 

information on the comment period and public hearing.

ADDRESSES: Comments. Submit your comments, identified by 

Docket ID No. EPA-HQ-OAR-2010-1033, by one of the following 

methods: 

• www.regulations.gov: Follow the online instructions for 

submitting comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566-9744 

• Mail: Attention Docket ID No. EPA-HQ-OAR-2010-1033, U.S. 

Environmental Protection Agency, EPA West (Air Docket), 

1200 Pennsylvania Avenue, NW, Mail code: 6102T, Washington, 

DC 20460. Please include a total of 2 copies. 

• Hand Delivery: U.S. Environmental Protection Agency, EPA 

West (Air Docket), 1301 Constitution Avenue, Northwest, 
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Room 3334, Washington, DC 20004, Attention Docket ID No. 

EPA-HQ-OAR-2010-1033. Such deliveries are only accepted 

during the Docket's normal hours of operation, and special 

arrangements should be made for deliveries of boxed 

information. 

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR2010-1033. EPA's policy is that all comments received will be 

included in the public docket without change and may be made 

available online at www.regulations.gov, including any personal 

information provided, unless the comment includes information 

claimed to be Confidential Business Information (CBI) or other 

information whose disclosure is restricted by statute. Do not 

submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or e-mail. The 

www.regulations.gov Web site is an "anonymous access" system, 

which means EPA will not know your identity or contact 

information unless you provide it in the body of your comment. 

If you send an e-mail comment directly to EPA without going 

through www.regulations.gov, your e-mail address will be 

automatically captured and included as part of the comment that 

is placed in the public docket and made available on the 
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Internet. If you submit an electronic comment, EPA recommends 

that you include your name and other contact information in the 

body of your comment and with any disk or CD-ROM you submit. If 

EPA cannot read your comment due to technical difficulties and 

cannot contact you for clarification, EPA may not be able to 

consider your comment. Electronic files should avoid the use of 

special characters, avoid any form of encryption, and be free of 

any defects or viruses. For additional information about EPA's 

public docket, visit the EPA Docket Center homepage at 

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

Docket. All documents in the docket are listed in the 

www.regulations.gov index. Although listed in the index, some 

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

information whose disclosure is restricted by statute. Certain 

other material, such as copyrighted material, will be publicly 

available only in hard copy. Publicly available docket 

materials are available either electronically in 

www.regulations.gov or in hard copy at the U.S. Environmental 

Protection Agency, Air Docket, EPA/DC, EPA West Building, Room 

3334, 1301 Constitution Ave., NW, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
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Friday, excluding legal holidays. The telephone number for the 

Public Reading Room is (202) 566-1744, and the telephone number 

for the Air Docket is (202) 566-1742. 

Public Hearing. The January 14, 2011, public hearing will be 

held at Crowne Plaza Hotel Dallas Downtown, 1015 Elm Street, 

Dallas, Texas, phone: (XXX) XXX-XXXX. The public hearing will 

convene at 10:00 a.m. and will end at 7:00 p.m. or until the 

last registered speaker has spoken. Please refer to 

SUPPLEMENTATY INFORMATION for additional information on the 

public hearing. 

FOR FURTHER INFORMATION CONTACT: For information on this 

proposed rule, contact Ms. Cheryl Vetter, Air Quality Policy 

Division, Office of Air Quality Planning and Standards (C504-

03), Environmental Protection Agency, Research Triangle Park, NC 

27711; telephone number: (919) 541-4391; fax number: (919) 541-

5509; e-mail address: vetter.cheryl@epa.gov.

 If you would like to present oral testimony at the public 

hearing, please contact Ms. Pamela Long, U.S. Environmental 

Protection Agency, Office of Air Quality Planning and Standards, 

Air Quality Planning Division, (C504-03), Research Triangle 

Park, NC 27711, telephone (919) 541-0641, fax number (919) 541-
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5509, e-mail address: long.pam@epa.gov (preferred method for 

registering), no later than January 12, 2011. If using e-mail, 

please provide the following information: Time you wish to speak 

(morning, afternoon, evening), name, affiliation, address, email address, and telephone and fax numbers. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

The only governmental entity potentially affected by this 

rule is the State of Texas. Other entities potentially affected 

by this rule also include sources in all industry groups within 

the State of Texas, which have a direct obligation under the CAA 

to obtain a PSD permit for GHGs for projects that meet the 

applicability thresholds set forth in the Tailoring Rule.1 This 

independent obligation on sources is specific to PSD and derives 

from CAA section 165(a). The majority of entities potentially 

affected by this action are expected to be in the following 

groups: 

Industry Group NAICSa

 

1

 “Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule;” Final Rule. 75 FR 31514 (June 3, 2010). 
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Utilities (electric, natural 

gas, other systems) 

2211, 2212, 2213 

Manufacturing (food, beverages, 

tobacco, textiles, leather) 

311, 312, 313, 314, 315, 316 

Wood product, paper 

manufacturing 

321, 322 

Petroleum and coal products 

manufacturing 

32411, 32412, 32419 

Chemical manufacturing 3251, 3252, 3253, 3254, 3255, 

3256, 3259 

Rubber product manufacturing 3261, 3262 

Miscellaneous chemical products 32552, 32592, 32591, 325182, 

32551 

Nonmetallic mineral product 

manufacturing 

3271, 3272, 3273, 3274, 3279 

Primary and fabricated metal 

manufacturing 

3311, 3312, 3313, 3314, 3315, 

3321, 3322, 3323, 3324, 3325, 

3326, 3327, 3328, 3329 

Machinery manufacturing 3331, 3332, 3333, 3334, 3335, 

3336, 3339 

Computer and electronic 

products manufacturing 

3341, 3342, 3343, 3344, 3345, 

4446 

Electrical equipment, 

appliance, and component 

manufacturing 

3351, 3352, 3353, 3359 

Transportation equipment 

manufacturing 

3361, 3362, 3363, 3364, 3365, 

3366, 3366, 3369 

Furniture and related product 

manufacturing 

3371, 3372, 3379 

Miscellaneous manufacturing 3391, 3399 

Waste management and 

remediation 

5622, 5629 

Hospitals/nursing and 

residential care facilities 

6221, 6231, 6232, 6233, 6239 

Personal and laundry services 8122, 8123 

Residential/private households 8141 
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Non-residential (commercial) Not available. Codes only 

exist for private households, 

construction and leasing/sales 

industries. a

 North American Industry Classification System. 

B. Where can I get a copy of this document and other related 

information?

In addition to being available in the docket, an electronic 

copy of this proposal will also be available on the World Wide 

Web. Following signature by the EPA Administrator, a copy of 

this notice will be posted on the EPA's NSR Web site, under 

Regulations & Standards, at www.epa.gov/nsr. 

C. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA 

through www.regulations.gov or e-mail. Clearly mark the part or 

all of the information that you claim to be CBI. For CBI 

information in a disk or CD ROM that you mail to EPA, mark the 

outside of the disk or CD ROM as CBI and then identify 

electronically within the disk or CD ROM the specific 

information that is claimed as CBI. In addition to one complete 

version of the comment that includes information claimed as CBI, 

a copy of the comment that does not contain the information 

claimed as CBI must be submitted for inclusion in the public 
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docket. Information so marked will not be disclosed except in 

accordance with procedures set forth in 40 CFR part 2. Send or 

deliver information identified as CBI only to the following 

address: Roberto Morales, OAQPS Document Control Officer (C404-

02), U.S. EPA, Research Triangle Park, NC 27711, Attention 

Docket ID No. EPA-HQ-OAR-2010-1033. 

2. Tips for preparing your comments. When submitting 

comments, remember to: 

• Identify the rulemaking by docket number and other 

identifying information (subject heading, Federal Register

date and page number). 

• Follow directions - The agency may ask you to respond to 

specific questions or organize comments by referencing a 

Code of Federal Regulations (CFR) part or section number. 

• Explain why you agree or disagree; suggest alternatives and 

substitute language for your requested changes. 

• Describe any assumptions and provide any technical 

information and/or data that you used. 

• If you estimate potential costs or burdens, explain how you 

arrived at your estimate in sufficient detail to allow for 

it to be reproduced. 
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• Provide specific examples to illustrate your concerns, and 

suggest alternatives. 

• Explain your views as clearly as possible, avoiding the use 

of profanity or personal threats. 

• Make sure to submit your comments by the comment period 

deadline identified. 

D. What information should I be aware of if I plan to attend 

the public hearing? 

The January 14, 2011, public hearing will provide 

interested parties the opportunity to present data, views, or 

arguments concerning this proposal. The EPA may ask clarifying 

questions during the oral presentations, but will not respond to 

the presentations at that time. Written statements and 

supporting information submitted during the comment period will 

be considered with the same weight as oral comments and 

supporting information presented at the public hearing. Written 

comments on the proposed rule must be postmarked by February 12, 

2011, 30 days after the January 14, 2011 hearing. Commenters 

should notify Ms. Long if they will need specific equipment, or 

if there are other special needs related to providing comments 

at the hearing. The EPA will provide equipment for commenters 
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to show overhead slides or make computerized slide presentations 

if we receive special requests in advance. Oral testimony will 

be limited to 5 minutes for each commenter. The EPA encourages 

commenters to provide EPA with a copy of their oral testimony 

electronically (via e-mail or CD) or in hard copy form. The 

hearing schedule, including lists of speakers, will be posted on 

EPA’s Web site http://www.epa.gov/nsr. Verbatim transcripts of 

the hearing and written statements will be included in the 

docket for the rulemaking. EPA will make every effort to follow 

the schedule as closely as possible on the day of the hearing; 

however, please plan for the hearing to run either ahead of 

schedule or behind schedule. 

D. How is the preamble organized?

The information presented in this preamble is organized as 

follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document and other 

related information? 

C. What should I consider as I prepare my comments for 

EPA? 

D. How is the preamble organized? 

II. Proposed Action 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866 – Regulatory Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 
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D. Unfunded Mandates Reform 

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 Concerning Regulations 

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 LowIncome Populations 

K. CAA Section 307(d) 

IV. Statutory Authority 

II. Proposed Action 

 We have published an interim final rule in the “Rules” 

section of this Federal Register to revise our previous full 

approval of Texas’s PSD state implementation plan (SIP) to a 

partial approval and partial disapproval (the “Interim Final 

Rule”), and to implement a FIP to apply the PSD program to those 

non-NAAQS pollutants to which the Texas PSD program does not 

already apply. We have explained our reasons for this action in 

the preamble to that rule. The reader is referred to the 

Interim Final Rule for detailed information on this proposed 

action. 

We solicit comment on all aspects of the rationale and 

legal basis for our determination that the Texas PSD program is 
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flawed and our approach to correcting our error, i.e., 

converting our previous full approval of the Texas PSD SIP to a 

partial approval and partial disapproval using the error 

correction mechanism under CAA section 110(k)(c). This includes 

our finding that the Texas PSD SIP’s failure to address, or 

provide assurances of the requisite legal authority, concerning 

the application of PSD to all pollutants subject to regulation, 

including non-NAAQS pollutants, constitutes a flaw that existed 

at the time that EPA granted full approval of that program in 

1992. This also includes our legal authority and approach for 

correcting our error in previously granting full approval of the 

Texas PSD SIP, including the error correction provisions under 

CAA section 110(k)(6) and our general authority to reconsider 

our actions under CAA sections 110 and 301(a). We also solicit 

comment on our justification for proceeding with this rulemaking 

as soon as possible in order to provide a permitting authority 

and allow Texas sources to avoid delays in construction and 

modification. 

We are not soliciting comment on, and will not address, 

comments on issues addressed in what we call the Endangerment 
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Finding,2

 the Light-Duty Vehicle Rule,3 the Johnson Memo 

Reconsideration4 and the Tailoring Rule.5 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866 - Regulatory Planning and Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 

1993), this action is a "significant regulatory action" because 

it raises novel legal or policy issues. Accordingly, EPA 

submitted this action to the Office of Management and Budget 

(OMB) for review under EO 12866 and any changes made in response 

to OMB recommendations have been documented in the docket for 

this action. 

B. Paperwork Reduction Act

This action does not impose any new information collection 

burden. The OMB has previously approved the information 

collection requirements contained in the existing regulations 

 

2

 "Endangerment and Cause or Contribute Findings for Greenhouse 

Gases Under Section 202(a) of the Clean Air Act." 74 FR 66,496 

(December 15, 2009). 

3

 "Light-Duty Vehicle Greenhouse Gas Emission Standards and 

Corporate Average Fuel Economy Standards; Final Rule." 75 FR 

25,324 (May 7, 2010). 

4

 [Need cite from interim-final rule]**YOU WILL NOT HAVE THIS – 

YOU NEED TO REFERENCE SIGNSTUE DATE AND TITLE ONLY.** 

5

 “Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule; Final Rule.” 75 FR 31514 (June 3, 2010). 
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for PSD (see, e.g., 40 CFR 52.21) under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned 

OMB control number 2060-0003. 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 notice on 

small entities, small entity is defined as: (1) a small 

business that is a small industrial entity as defined in the 

U.S. Small Business Administration (SBA) size standards (see 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; or (3) a small 

organization that is any not-for-profit enterprise that is 
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independently owned and operated and is not dominant in its 

field. 

After considering the economic impacts of this proposed 

rule on small entities, I certify that this action will not have 

a significant economic impact on a substantial number of small 

entities. Although this rule could lead to federal permitting 

requirements for certain sources in Texas, those sources are 

large emitters of GHGs and tend to be large sources. We 

continue to be interested in the potential impacts of the 

proposed rule on small entities and welcome comments on issues 

related to such impacts. 

D. Unfunded Mandates Reform Act

This 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. The action may impose a duty on Texas to meet 

their existing obligation for PSD SIP submittal, but with lesser 

expenditures. Thus, this proposed rule is not subject to the 

requirements of sections 202 or 205 of UMRA. 

This rule is also not subject to the requirements of 

section 203 of UMRA because it contains no regulatory 
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requirements that might significantly or uniquely affect small 

governments. This action applies only to Texas. 

E. Executive Order 13132 - Federalism

This action does not have federalism implications. It will 

not have substantial direct effects on Texas, on the 

relationship between the national government and Texas, or on 

the distribution of power and responsibilities among the various 

levels of government, as specified in Executive Order 13132. 

With this action, EPA is only proposing to revise its previous 

full approval of the Texas PSD SIP to be a partial approval and 

partial disapproval to correct an error made in granting full 

approval. Thus, Executive Order 13132 does not apply to this 

action. 

In the spirit of Executive Order 13132, and consistent with 

EPA policy to promote communications between EPA and state and 

local governments, EPA specifically solicits comment on this 

proposed rule from state and local officials. 

F. Executive Order 13175 - Consultation and Coordination with 

Indian Tribal Governments

This action does not have tribal implications, as specified 

in Executive Order 13175 (65 FR 67249, November 9, 2000). In 
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this action, EPA is not addressing any tribal implementation 

plans. This action is limited to Texas’s PSD SIP. Thus, 

Executive Order 13175 does not apply to this action. 

Although Executive Order 13175 does not apply to this 

proposed rule, EPA specifically solicits additional comment on 

this proposed action from tribal officials. 

G. Executive Order 13045 - Protection of Children from 

Environmental Health Risks and Safety Risks

 EPA interprets EO 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 EO 13045 because EPA is only 

proposing to revise its previous full approval of the Texas PSD 

SIP to be a partial approval and partial disapproval to correct 

an error made in granting full approval. 

H. Executive Order 13211 - Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use

 This action is not a "significant energy action" as defined 

in Executive Order 13211 (66 FR 28355(May 22, 2001)), because it 

is not likely to have a significant adverse effect on the 
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supply, distribution, or use of energy. With this action, EPA 

is only proposing to revise its previous full approval of the 

Texas PSD SIP to be a partial approval and partial disapproval 

to correct an error made in granting full approval.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 ("NTTAA"), Public Law No. 104-113, 12(d) 

(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. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards. 

This proposed rulemaking 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 
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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. 

 EPA has determined that this proposed 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. With this action, EPA is only 

proposing to revise its previous full approval of the Texas PSD 

SIP to be a partial approval and partial disapproval to correct 

an error made in granting full approval. 

K. CAA section 307(d)(1)

Pursuant to section 307(d)(1)(B) and (V) of the CAA, the 

Administrator determines that this action is subject to the 
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provisions of section 307(d). Section 307(d)(1)(B) provides 

that the provisions of section 307(d) apply to the promulgation 

or a FIP by the Administrator under CAA section 110(c) and 

section 307(d)(1)(V) provides that the provisions of section 

307(d) apply to “such other actions as the Administrator may 

determine.” 

IV. Statutory Authority 

The statutory authority for this action is provided by 

sections 101, 110, 114, 116, and 301 of the CAA as amended (42 

U.S.C. 7401, 7410, 7414, 7416, and 7601). 
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Page 22 of 25 - Texas Prevention of Significant Deterioration 

Program – Error Correction, Partial Approval, and Partial 

Disapproval; Proposed Rule 

List of Subjects in 40 CFR Part 52 

Air pollution control, Carbon dioxide, Carbon dioxide 

equivalents, Carbon monoxide, Environmental protection, 

Greenhouse gases, Hydrofluorocarbons, Intergovernmental 

relations, Lead, Methane, Nitrogen dioxide, Nitrous oxide, 

Ozone, Particulate matter, Perfluorocarbons, Reporting and 

recordkeeping requirements, Sulfur hexafluoride, Sulfur oxides, 

Volatile organic compounds. 

________________________ 

Dated: 

_________________________ 

Lisa P. Jackson, 

Administrator. 
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For reasons set out in the preamble, title 40, chapter 1 of the 

Code of Federal Regulations is proposed to be amended as 

follows: 

PART 52 - [Amended]

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

follows: 

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

2. Section 52.37 is added to read as follows: 

 §52.37. What are the requirements of the Federal 

Implementation Plans (FIPs) to issue permits under the 

Prevention of Significant Deterioration requirements to sources 

that emit greenhouse gases? 

(a) The requirements of sections 160 through 165 of the Clean 

Air Act are not met to the extent the plan, as approved, of the 

states listed in paragraph (b) of this section does not apply 

with respect to emissions of the pollutant GHGs from certain 

stationary sources. Therefore, the provisions of §52.21 except 

paragraph (a)(1) are hereby made a part of the plan for each 

state listed in paragraph (b) of this section for: 

(1) Beginning January 2, 2011, the pollutant GHGs from 

stationary sources described in §52.21(b)(49)(iv), and 
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[Alternative 1 for paragraph (a)(2)] 

(2) Beginning July 1, 2011, in addition to the pollutant GHGs 

from sources described under paragraph (a)(1) of this section, 

the pollutant GHGs from stationary sources described in 

§52.21(b)(49)(v).[Alternative 2 for paragraph (a)(2)] 

(2) Beginning July 1, 2011, in addition to the pollutant GHGs 

from sources described under paragraph (a)(1) of this section, 

stationary sources described in §52.21(b)(49)(v). 

(b) Paragraph (a) of this section applies to: 

(8) Texas 

(c) For purposes of this section, references to the "pollutant 

GHGs" refers to the pollutant GHGs, as described in 

§52.21(b)(49)(i).