53892 Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules 

V. Statutory Authority 

The statutory authority for this action 

is provided by sections 110, 165, 301, 

and 307(d)(1)(B) of the CAA as amended 

(42 U.S.C. 7410, 7475, 7601, and 

7407(d)(1)(B)). This action is subject to 

section 307(d) of the CAA (42 U.S.C. 

7407(d)). 

Page 46 of 49—Action To Ensure 

Authority To Issue Permits Under the 

Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas 

Emissions: Federal Implementation 

Plan 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon dioxide, 

Carbon dioxide equivalents, Carbon 

monoxide, 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: August 12, 2010. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I 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 [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: 

(1) Alaska; 

(2) Arizona, Pinal County; Rest of 

State (Excludes Maricopa County, Pima 

County, and Indian Country); 

(3) Arkansas; 

(4) California, Sacramento 

Metropolitan AQMD; 

(5) Connecticut; 

(6) Florida; 

(7) Idaho; 

(8) Kansas; 

(9) Kentucky, Jefferson County and 

Rest of State; 

(10) Nebraska; 

(11) Nevada, Clark County; 

(12) Oregon; 

(13) 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). 

[FR Doc. 2010–21706 Filed 9–1–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0107; FRL–9190–7] 

RIN–2060–AQ08 

Action To Ensure Authority To Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas 

Emissions: Finding of Substantial 

Inadequacy and SIP Call 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to find 

that 13 States with EPA-approved State 

implementation plan (SIP) New Source 

Review Prevention of Significant 

Deterioration (PSD) programs are 

substantially inadequate to meet Clean 

Air Act (CAA) requirements because 

they do not appear to apply PSD 

requirements to GHG-emitting sources. 

For each of these States, EPA proposes 

to require the State (through a ‘‘SIP 

Call’’) to revise its SIP as necessary to 

correct such inadequacies. EPA 

proposes an expedited schedule for 

States to submit their corrective SIP 

revision, in light of the fact that as of 

January 2, 2011, certain GHG-emitting 

sources will become subject to the PSD 

requirements and may not be able to 

obtain a PSD permit in order to 

construct or modify. As for the rest of 

the States with approved SIP PSD 

programs, EPA solicits comment on 

whether their PSD programs do or do 

not apply to GHG-emitting sources. If, 

on the basis of information EPA 

receives, EPA concludes that the SIP for 

such a State does not apply the PSD 

program to GHG-emitting sources, then 

EPA will proceed to also issue a finding 

of substantial inadequacy and a SIP Call 

for that State. 

DATES: Comments. Comments must be 

received on or before October 4, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0107 by one of the following 

methods: 

• http://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–2010–0107, 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. In addition, please 

mail a copy of your comments on the 

information collection provisions to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

EPA, 725 17th Street, NW., Washington, 

DC 20503. 

• Hand Delivery: U.S. Environmental 

Protection Agency, EPA West (Air 

Docket), 1301 Constitution Avenue, 

NW., Room 3334, Washington, DC 

20004, Attention Docket ID No. EPA– 

HQ–OAR–2010–0107. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2010– 

0107. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 


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1EPA respects the unique relationship between 

the U.S. government and tribal authorities and 

acknowledges that tribal concerns are not 

interchangeable with State concerns. However, for 

convenience, we refer to ‘‘States’’ in this rulemaking 

to collectively mean States, local permitting 

authorities, and tribal authorities. 

2Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 

31514 (June 3, 2010). The Tailoring Rule is 

described in more detail later in this preamble. 

http://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 http:// 

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 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 http:// 

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

For additional instructions on 

submitting comments, go to section I.C 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket. All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

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 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. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lisa Sutton, Air Quality Policy Division, 

Office of Air Quality Planning and 

Standards (C504–03), Environmental 

Protection Agency, Research Triangle 

Park, NC 27711; telephone number: 

(919) 541–3450; fax number: (919) 541– 

5509; e-mail address: 

sutton.lisa@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

questions related to a specific State, 

local, or tribal permitting authority, or 

to submit information requested in this 

action, please contact the appropriate 

EPA regional office: 

EPA 

regional 

office 

Contact for regional office (person, mailing address, telephone number) Permitting authority 

I ............ Dave Conroy, Chief, Air Programs Branch, EPA Region 1, 5 Post Office Square, Suite 

100, Boston, MA 02109–3912, (617) 918–1661.

Connecticut, Massachusetts, Maine, New 

Hampshire, Rhode Island, and 

Vermont. 

II ........... Raymond Werner, Chief, Air Programs Branch, EPA Region 2, 290 Broadway, 25th 

Floor, New York, NY 10007–1866, (212) 637–3706.

New Jersey, New York, Puerto Rico, and 

Virgin Islands. 

III .......... Kathleen Anderson, Chief, Permits and Technical Assessment Branch, EPA Region 3, 

1650 Arch Street, Philadelphia, PA 19103–2029, (215) 814–2173.

District of Columbia, Delaware, Maryland, 

Pennsylvania, Virginia, and West Virginia. 

IV .......... Dick Schutt, Chief, Air Planning Branch, EPA Region 4, Atlanta Federal Center, 61 

Forsyth Street, SW, Atlanta, GA 30303–3104, (404) 562–9033.

Alabama, Florida, Georgia, Kentucky, 

Mississippi, North Carolina, South 

Carolina, and Tennessee. 

V ........... J. Elmer Bortzer, Chief, Air Programs Branch (AR–18J), EPA Region 5, 77 West Jackson 

Boulevard, Chicago, IL 60604–3507, (312) 886–1430.

Illinois, Indiana, Michigan, Minnesota, 

Ohio, and Wisconsin. 

VI .......... Jeff Robinson, Chief, Air Permits Section, EPA Region 6, Fountain Place 12th Floor, 

Suite 1200, 1445 Ross Avenue, Dallas, TX 75202–2733, (214) 665–6435.

Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. 

VII ......... Mark Smith, Chief, Air Permitting and Compliance Branch, EPA Region 7, 901 North 5th 

Street, Kansas City, KS 66101, (913) 551–7876.

Iowa, Kansas, Missouri, and Nebraska. 

VIII ........ Carl Daly, Unit Leader, Air Permitting, Monitoring & Modeling Unit, EPA Region 8, 1595 

Wynkoop Street, Denver, CO 80202–1129, (303) 312–6416.

Colorado, Montana, North Dakota, South 

Dakota, Utah, and Wyoming. 

IX .......... Gerardo Rios, Chief, Permits Office, EPA Region 9, 75 Hawthorne Street, San Francisco, 

CA 94105, (415) 972–3974.

Arizona; California; Hawaii and the Pacific Islands; Indian Country within Region 9 and Navajo Nation; and Nevada. 

X ........... Nancy Helm, Manager, Federal and Delegated Air Programs Unit, EPA Region 10, 1200 

Sixth Avenue, Suite 900, Seattle, WA 98101, (206) 553–6908.

Alaska, Idaho, Oregon, and Washington. 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

rule include States, local permitting 

authorities, and tribal authorities.1 Any 

SIP-approved PSD air permitting 

regulation that is not structured such 

that it includes GHGs among pollutants 

subject to the PSD program will 

potentially be found to be substantially 

inadequate to meet CAA requirements, 

under CAA section 110(k)(5), and the 

State will potentially be affected by this 

rule. For example, if a State’s PSD 

regulation identifies its regulated NSR 

pollutants by specifically listing each 

individual pollutant and the list omits 

GHGs, then the regulation is 

substantially inadequate. 

Entities potentially affected by this 

rule also include sources in all industry 

groups, 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.2 This independent 

obligation on sources is specific to PSD 

and derives from CAA section 165(a). 

Any source that is subject to a State PSD 

air permitting regulation not structured 

to apply to GHG-emitting sources will 

potentially rely on this rule to obtain a 

permit that contains emission 

limitations that conform to requirements 

under CAA section 165(a). The majority 

of entities potentially affected by this 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
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action are expected to be in the 

following groups: 

Industry group NAICSa

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. 

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 http://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 http:// 

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 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–2010–0107. 

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. 

• 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. 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. Overview of Proposed Rule 

III. Background 

A. CAA and Regulatory Context 

B. State PSD SIPs 

IV. Proposed Action: Finding of Substantial 

Inadequacy and SIP Call 

A. Introduction 

B. States With SIP PSD Applicability 

Provisions That Do Not Appear To 

Apply to GHG-Emitting Sources 

C. States With SIP PSD Applicability 

Provisions That Do Appear To Apply to 

GHG-Emitting Sources 

D. Proposed Finding of SIP Substantial 

Inadequacy and SIP Call; Solicitation of 

Comment 

E. Comment Period 

F. State Actions 

G. EPA Actions on SIP Submittals; 

Findings of Failure To Submit and 

Promulgation of FIPs 

H. Streamlining the State Process for SIP 

Development and Submittal 

I. Primacy of the SIP Process 

J. Sanctions 

K. Title V 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

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 


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3 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

4 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). This action 

finalizes EPA’s response to a petition for 

reconsideration of ‘‘EPA’s Interpretation of 

Regulations that Determine Pollutants Covered by 

Federal Prevention of Significant Deterioration 

(PSD) Permit Program’’ (commonly referred to as the 

‘‘Johnson Memo’’), December 18, 2008. 

5 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

6 ‘‘Prevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule; Final Rule.’’ 

75 FR 31514 (June 3, 2010). 

7 In the Tailoring Rule, EPA asked states to advise 

EPA by letter, within 60 days of publication of the 

Tailoring Rule, how the states intended to 

implement the requirements of the Tailoring Rule, 

including whether the states had authority to apply 

their PSD program to GHG-emitting sources. 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

VI. Statutory Authority 

II. Overview of Proposed Rule 

In this rulemaking, along with the 

companion rulemaking described 

elsewhere in this preamble, EPA is 

taking another in a series of actions 

concerning the PSD program for GHGemitting sources that will begin on 

January 2, 2011. These two rulemakings 

take steps to assure that in 13 States that 

do not appear to have authority to issue 

PSD permits to GHG-emitting sources at 

present, either the State or EPA will 

have the authority to issue PSD permits 

by January 2, 2011. Although for most 

states, either the State or EPA is already 

authorized to issue PSD permits for 

GHG-emitting sources as of that date, 

our preliminary information shows that 

these 13 States have EPA-approved PSD 

programs that do not appear to include 

GHG-emitting sources and therefore do 

not appear to authorize these states to 

issue PSD permits to such sources. In 

this rulemaking, EPA proposes to find 

that these 13 States’ SIPs are 

substantially inadequate to comply with 

CAA requirements and, accordingly, 

proposes to issue a SIP Call to require 

a corrective SIP revision that applies 

their SIP PSD programs to GHG-emitting 

sources. In a companion rulemaking, 

EPA proposes a FIP that would give 

EPA authority to apply EPA’s PSD 

program to GHG-emitting sources in 

case such a State is unable to submit a 

corrective SIP revision by its deadline. 

Under the CAA PSD program, 

stationary sources must obtain a permit 

prior to undertaking construction or 

modification projects that would result 

in specified amounts of new or 

increased emissions of air pollutants 

that are subject to regulation under 

other provisions of the CAA. CAA 

sections 165(a), 169(1). The permit 

must, among other things, impose 

emission limitations associated with the 

best available control technology 

(BACT). CAA section 165(a)(4). 

In recent months, EPA has taken four 

related actions that, taken together, 

trigger PSD applicability for GHG 

sources on and after January 2, 2011, but 

limit the scope of PSD. These actions 

included, as they are commonly called, 

the ‘‘Endangerment Finding’’ and ‘‘Cause 

or Contribute Finding,’’ which were 

issued in a single final action,3 the 

‘‘Johnson Memo Reconsideration,’’ 4 the 

‘‘Light-Duty Vehicle Rule,’’ 5 and the 

‘‘Tailoring Rule.’’ 6 Taken together, these 

actions established regulatory 

requirements for GHGs emitted from 

new motor vehicles and new motor 

vehicle engines, determined that such 

regulations, when they take effect on 

January 2, 2011, will subject GHGs 

emitted from stationary sources to PSD 

requirements, and limited the 

applicability of PSD requirements to 

GHG sources on a phased-in basis. 

We are taking this action on the basis 

of: Our analysis of the affected States’ 

SIP provisions and other relevant State 

law; the States’ analyses of their SIP 

provisions and State law, as indicated in 

letters sent to us as required under the 

Tailoring Rule; 7 and direct consultation 

with the individual states and with the 

National Association of Clean Air 

Agencies (NACAA). As further 

described in section IV.D of this 

preamble, EPA compiled relevant 

provisions of the affected States’ SIPs 

and other State law into a Technical 

Support Document for this rulemaking, 

which can be found in the docket for 

this rulemaking. Our analysis, along 

with information received from 

consulting with the states, indicates that 

the EPA-approved SIPs for 13 States 

appear to not apply the PSD program to 

GHG sources. In many of these states, 

the SIP applicability provisions apply 

the PSD program to sources of 

specifically listed air pollutants and do 

not include GHGs. In one State, 

Connecticut, the SIP explicitly 

precludes the application of PSD to 

GHG-emitting sources. In other states, 

the SIP applicability provisions apply 

the PSD program generally to regulated 

pollutants, and these provisions, by 

their terms, cover GHGs; however, these 

states have other constitutional, State 

law, or SIP provisions that may limit 

their State laws or SIP requirements to 

applying only when specifically 

approved by the appropriate State 

authority. These constitutional or 

statutory provisions may limit the scope 

of the State PSD applicability provisions 

expressly to pollutants identified at a 

certain point in time as subject to PSD. 

For example, if the State has not yet 

expressly identified GHGs as subject to 

its PSD program, the authority to 

regulate GHG-emitting sources may not 

exist. As a result, absent further action, 

GHG sources that will be required to 

obtain a PSD permit for construction or 

modification on and after January 2, 

2011, will be unable to obtain that 

permit and therefore may be unable to 

proceed with planned construction or 

modification in those states. 

In this rulemaking, we are proposing 

to find that under CAA section 

110(k)(5), the SIP for each of these 13 

States is substantially inadequate to 

meet the CAA PSD requirements, and 

we are proposing a SIP Call to require 

that each affected State submit a 

corrective SIP revision that applies the 

PSD program to GHG sources. These 

states are listed in table IV–1, ‘‘States 

with SIPs that Do Not Appear to Apply 

PSD to GHG Sources (Presumptive SIP 

Call List).’’ 

As for the remaining States with EPAapproved SIP PSD programs, our 

preliminary research indicates that their 

SIP PSD applicability provisions apply 

the PSD programs more broadly—for 

example, many apply to sources of 

‘‘regulated NSR pollutants’’—and 

therefore appear to include GHGemitting sources. Moreover, we have not 

to this point received information about 

other provisions in the State 

constitutional or other State or SIP law 

that would have the effect of limiting 

the applicability of the PSD provisions 

to exclude GHG-emitting sources. Those 

remaining States, which include all the 

states with EPA-approved PSD programs 

not listed in table IV–1, are listed in 

table IV–2, ‘‘States with SIPs that 

Appear to Apply PSD to GHG Sources 

(Presumptive Adequacy List).’’ 

Even so, we are aware of the 

possibility that some of those states may 

also have other State law provisions that 

may have the effect of limiting their PSD 

SIP requirements to applying only to 

pollutants specifically approved by the 

appropriate State authority, which 

would not include GHGs. In light of this 

possibility, we are soliciting comment 

on whether each of those remaining 

States’ SIPs (see table IV–2) apply PSD 

to GHG-emitting sources. If, for any 

such State, we receive information that 

leads us to conclude that its SIP does 

not apply PSD to GHG-emitting sources, 

we will take final action to issue a 


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8 In the Tailoring Rule, we noted that commenters 

argued, with some variations, that the PSD 

provisions applied only to NAAQS pollutants, and 

not GHGs, and we responded that the PSD 

provisions apply to all pollutants subject to 

regulation, including GHGs. See 75 FR 31560–62, 

‘‘Prevention of Significant Deterioration and Title V 

GHG Tailoring Rule: EPA’s Response to Public 

Comments,’’ May 2010, pp. 38–41. We maintain our 

position that the PSD provisions apply to all 

pollutants subject to regulation, and we incorporate 

by reference our discussion of this issue in the 

Tailoring Rule. 

finding of substantial inadequacy and a 

SIP Call for that State, on the same 

schedule as that for the 13 States. 

In a companion action to this 

rulemaking, we are proposing to 

promulgate, in any State that is not in 

a position to make a timely submittal of 

the corrective SIP revision, a FIP that 

will assure that sources will be able to 

obtain the necessary permits, with EPA 

as the permitting authority for GHG 

emissions. 

In view of the need for prompt action 

to eliminate or significantly limit any 

time period during which certain GHG 

sources are precluded from constructing 

or modifying because no entity has the 

authority to issue them permits, we 

intend to finalize this rulemaking action 

on or about December 1, 2010, and we 

propose in this rulemaking to give states 

a deadline of 12 months from the date 

we finalize to submit their corrective 

SIP revision. However, we are also 

proposing to authorize states to accept 

a shorter deadline, as short as three 

weeks from the date we finalize. If any 

State is not able to submit a corrective 

SIP revision by its deadline, then EPA, 

by virtue of the authority of the FIP 

provisions under CAA section 110(c), 

will immediately make a finding that 

the State has failed to submit the 

required SIP revision and will 

immediately promulgate the FIP. 

Some states may already be in the 

process of developing the legal authority 

needed and may be able to submit a SIP 

revision sooner than December 2010. 

EPA encourages states to take action as 

expeditiously as possible and will assist 

states as much as possible. Therefore, 

for each State for which EPA is 

proposing a SIP Call, it is possible that 

by January 2, 2011, when certain GHG 

sources in the State may be required to 

obtain PSD permits, the State would 

have the authority in place to act on the 

sources’ permit applications. The 

availability of this authority to regulate 

GHGs would depend on whether the 

State submits a SIP revision before EPA 

finalizes this action or, alternatively, on 

which deadline the State receives for 

the corrective SIP submittal. 

We ask that, within the comment 

period for this action, each of the states 

listed in table IV–1 confirm to EPA that 

its SIP does not apply the PSD program 

to GHG-emitting sources. We also ask 

that within this comment period, every 

other State in the nation with an 

approved SIP (see table IV–2) review its 

SIP and inform EPA if its SIP does not 

apply the PSD program to GHG-emitting 

sources. Further, we ask that the states 

(see table IV–1) for which we are 

proposing a SIP Call identify the 

deadline—between 3 weeks and 12 

months from the date of signature of the 

final SIP Call—that they would accept 

for submitting their corrective SIP 

revision. For example, assuming that, as 

we anticipate, this rulemaking is signed 

in final form by December 1, 2010, a 

State may specify that it would accept 

a SIP submittal deadline that falls 

between December 22, 2010, and 

December 1, 2011, inclusive. 

III. Background 

A. CAA and Regulatory Context 

EPA described the relevant 

background information in the Tailoring 

Rule. Knowledge of this background 

information is presumed and will be 

only briefly summarized here. 

1. SIP PSD Requirements 

Under the CAA PSD requirements, a 

new or existing source that emits or has 

the potential to emit ‘‘any air pollutant’’ 

in the amounts of either 100 or 250 tons 

per year (tpy), depending on the source 

category, cannot construct or modify 

unless it first obtains a PSD permit that, 

among other things, imposes emission 

limitations that qualify as BACT. CAA 

sections 165(a)(1), 165(a)(4), 169(1). 

Longstanding EPA regulations have 

interpreted the term ‘‘any air pollutant’’ 

narrowly so that only emissions of any 

‘‘regulated NSR pollutant’’ trigger PSD. 

40 CFR 51.166(j)(1), 52.21(j)(2). The 

term ‘‘regulated NSR pollutant’’ is 

defined to include the following four 

classes of air pollutants: 

(i) Any pollutant for which a NAAQS 

has been promulgated; 

(ii) any pollutant subject to an NSPS 

promulgated under CAA section 111; 

(iii) any pollutant subject to a 

standard promulgated under CAA title 

VI; and 

(iv) ‘‘any pollutant that otherwise is 

subject to regulation under the Act’’ 

(excluding HAPs listed under CAA 

section 112). 40 CFR 51.166(b)(49), 

52.21(b)(50). 

The CAA contemplates that the PSD 

program be implemented in the first 

instance by the states and requires that 

states include PSD requirements in their 

SIPs. CAA section 110(a)(2)(C) requires 

that— 

Each implementation plan * * * shall 

* * * include a program to provide for 

* * * regulation of the modification and 

construction of any stationary source within 

the areas covered by the plan as necessary to 

assure that national ambient air quality 

standards are achieved, including a permit 

program as required in part[] C * * * of this 

subchapter. 

CAA section 110(a)(2)(J) requires 

that— 

Each implementation plan * * * shall 

* * * meet the applicable requirements of 

* * * part C of this subchapter (relating to 

significant deterioration of air quality and 

visibility protection). 

CAA section 161 provides that— 

Each applicable implementation plan shall 

contain emission limitations and such other 

measures as may be necessary, as determined 

under regulations promulgated under this 

part [C], to prevent significant deterioration 

of air quality for such region * * * 

designated * * * as attainment or 

unclassifiable. 

These provisions, read in conjunction 

with the PSD applicability provision— 

which, as noted above, applies, by its 

terms, to ‘‘any air pollutant,’’ and which 

EPA has, through regulation, interpreted 

more narrowly as any ‘‘NSR regulated 

pollutant’’—and read in conjunction 

with other provisions, such as the BACT 

provision under CAA section 165(a)(4), 

mandate that SIPs include PSD 

programs that are applicable to, among 

other things, any air pollutant that is 

subject to regulation, including, as 

discussed below, GHGs on and after 

January 2, 2011.8

A number of states do not have PSD 

programs approved into their SIPs. In 

those states, EPA’s regulations at 40 CFR 

52.21 govern, and either EPA or the 

State as EPA’s delegatee acts as the 

permitting authority. On the other hand, 

most states have PSD programs that 

have been approved into their SIPs, and 

these states implement their PSD 

programs and act as the permitting 

authority. These approved SIPs are 

discussed in more detail below. 

2. Recent EPA Regulatory Action 

Concerning PSD Requirements for GHGemitting Sources 

By notice dated December 15, 2009, 

pursuant to CAA section 202(a), EPA 

issued, in a single final action, two 

findings regarding GHGs that are 

commonly referred to as the 

‘‘Endangerment Finding’’ and the ‘‘Cause 

or Contribute Finding.’’ ‘‘Endangerment 

and Cause or Contribute Findings for 

Greenhouse Gases Under Section 202(a) 

of the Clean Air Act,’’ 74 FR 66496. In 

the Endangerment Finding, the 

Administrator found that six long-lived 

and directly emitted greenhouse gases— 

carbon dioxide (CO2), methane (CH4), 


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9 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs,’’ 75 FR 17004 (finalizing EPA’s response 

to a petition for reconsideration of ‘‘EPA’s 

Interpretation of Regulations that Determine 

Pollutants Covered by Federal Prevention of 

Significant Deterioration (PSD) Permit Program’’ 

(commonly referred to as the ‘‘Johnson Memo’’), 

December 18, 2008). 

10Prevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule; Final Rule. 

75 FR 31514 (June 3, 2010). 

nitrous oxide (N2O), hydrofluorocarbons 

(HFCs), perfluorocarbons (PFCs), and 

sulfur hexafluoride (SF6)—may 

reasonably be anticipated to endanger 

public health and welfare. In the Cause 

or Contribute Finding, the 

Administrator ‘‘define[d] the air 

pollutant as the aggregate group of the 

same six * * * greenhouse gases,’’ 74 

FR 66536, and found that the combined 

emissions of this air pollutant from new 

motor vehicles and new motor vehicle 

engines contribute to the GHG air 

pollution that endangers public health 

and welfare. 

By notice dated May 7, 2010, EPA 

published what is commonly referred to 

as the ‘‘Light-Duty Vehicle Rule’’ 

(LDVR), which for the first time 

established Federal controls on GHGs 

emitted from light-duty vehicles. ‘‘LightDuty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel 

Economy Standards; Final Rule.’’ 75 FR 

25324. In its applicability provisions, 

the LDVR specifies that it ‘‘contains 

standards and other regulations 

applicable to the emissions of six 

greenhouse gases,’’ including CO2, CH4, 

N2O, HFCs, PFCs, and SF6. 75 FR 25686 

(40 CFR 86.1818–12(a)). 

Shortly before finalizing the LDVR, by 

notice dated April 2, 2010, EPA 

published a notice commonly referred 

to as the Johnson Memo 

Reconsideration, which interpreted the 

term ‘‘subject to regulation,’’ a term that 

is one of the regulatory triggers for PSD 

applicability.9 The Johnson Memo 

Reconsideration concluded that for 

GHGs, promulgation of the LDVR would 

trigger PSD applicability for GHGemitting sources on or after January 2, 

2011, which according to EPA is the 

date upon which the LDVR takes effect. 

By notice dated June 3, 2010, EPA 

published what is commonly referred to 

as the ‘‘Tailoring Rule,’’ 10 which limits 

the applicability of PSD through a 

multi-step phase-in approach to only 

the highest-emitting GHG-emitting 

sources for a specified period of time, 

and not all GHG-emitting sources at the 

100/250-tpy statutory thresholds. The 

Tailoring Rule established the first two 

steps of the approach, which take effect 

on January 2, 2011, and July 1, 2011, 

respectively. In the Tailoring Rule, EPA 

codified the Johnson Memo 

Reconsideration interpretation of the 

term ‘‘subject to regulation’’ and added 

a further interpretation of that term 

designed to expedite the adoption of the 

phase-in approach for PSD permitting 

for GHGs by the states into their SIPs. 

In addition, in the Tailoring Rule, EPA 

identified the air pollutant that, if 

emitted or potentially emitted by the 

source in excess of specified thresholds, 

would subject the source to PSD 

requirements, as the aggregate of the six 

GHGs, again, CO2, CH4, N2O, HFCs, 

PFCs, and SF6. The Tailoring Rule 

further provided that for purposes of 

determining whether the GHGs emitted 

(or potentially emitted) exceeded the 

specified thresholds, the amount of the 

GHGs must be calculated first on a mass 

emissions basis and then on a carbon 

dioxide equivalent (CO2e) basis. With 

respect to the latter, according to the 

rule, ‘‘PSD * * * applicability is based 

on the quantity that results when the 

mass emissions of each of these [six] 

gases is multiplied by the Global 

Warming Potential (GWP) of that gas, 

and then summed for all six gases.’’ 75 

FR 31518. In the Tailoring Rule, we 

asked states to submit to us letters 

within 60 days of publication describing 

how they intended to incorporate into 

their SIPs the limitations on PSD 

applicability included in the rule’s 

phase-in approach. 

Further information on the 

Endangerment and Cause or Contribute 

Findings, the LDRV, the Johnson Memo 

Reconsideration, and the Tailoring Rule 

is contained in the Tailoring Rule. 

3. SIP Inadequacy and Corrective Action 

The CAA provides a mechanism for 

the correction of flawed SIPs, under 

CAA section 110(k)(5), which provides: 

(5) Calls for plan revisions 

Whenever the Administrator finds that the 

applicable implementation plan for any area 

is substantially inadequate to * * * comply 

with any requirement of this Act, the 

Administrator shall require the State to revise 

the plan as necessary to correct such 

inadequacies. The Administrator shall notify 

the State of the inadequacies and may 

establish reasonable deadlines (not to exceed 

18 months after the date of such notice) for 

the submission of such plan revisions. 

This provision by its terms authorizes 

the Administrator to ‘‘find[] that [a SIP] 

* * * is substantially inadequate to 

* * * comply with any requirement of 

this Act,’’ and, based on that finding, to 

‘‘require the State to revise the [SIP] 

* * * to correct such inadequacies.’’ 

This latter action is commonly referred 

to as a ‘‘SIP Call.’’ In addition, this 

provision provides that EPA must notify 

the State of the substantial inadequacy 

and authorizes EPA to establish a 

‘‘reasonable deadline[] (not to exceed 18 

months after the date of such notice)’’ 

for the submission of the corrective SIP 

revision. 

If the State fails to submit the 

corrective SIP revision by the deadline, 

CAA section 110(c) authorizes EPA to 

‘‘find[] that [the] State has failed to make 

a required submission.’’ CAA section 

110(c)(1)(A). Once EPA makes that 

finding, CAA section 110(c)(1) requires 

EPA to ‘‘promulgate a Federal 

implementation plan at any time with 

2 years after the [finding] * * * unless 

the State corrects the deficiency, and 

[EPA] approves the plan or plan 

revision, before [EPA] promulgates such 

[FIP].’’ 

B. State PSD SIPs 

1. SIP PSD Applicability Provisions 

As noted earlier in this preamble, 

most states have approved PSD SIPs. 

Most of those SIPs identify the 

pollutants addressed under their PSD 

program as any ‘‘regulated NSR 

pollutant.’’ This definition covers any 

‘‘pollutant subject to regulation’’ and 

therefore, by its terms, in effect is 

automatically updating and needs no 

revision in order to cover pollutants that 

become subject to regulation under the 

CAA. As a result, these provisions cover 

GHG emissions when they become 

subject to regulation under other 

provisions of the CAA. See 40 CFR 

52.21(b)(50). 

However, EPA has become aware that 

a minority of approved SIPs fail to 

include this broad approach to 

identifying pollutants subject to PSD 

and instead simply list the individual 

pollutants by name. These SIPs do not 

identify GHGs as among the pollutants 

addressed under their PSD program. As 

a result, these applicability provisions, 

by their terms, do not appear to apply 

the PSD requirements to sources of 

GHGs when GHGs become ‘‘subject to 

regulation’’ under the CAA on January 2, 

2011. 

In addition, the PSD SIP applicability 

provisions of one State that we are 

aware of, Connecticut, explicitly 

excludes CO2 as an ‘‘air pollutant,’’ so 

that CO2 is not subject to PSD 

requirements. 

2. Other Relevant State Law Provisions 

Some states may have other State 

laws, including other SIP provisions 

that bear upon the applicability of their 

PSD programs to GHG-emitting sources. 

First, some states may have in their 

SIPs some sort of ‘‘general authority 

clause’’ that affirms the State’s legal 

authority to issue, and enforce 


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11 In the following listed State or local 

jurisdictions, as well as in all Indian country, EPA 

is the PSD permitting authority, implementing the 

Federal PSD regulation at 40 CFR 52.21: American 

Samoa; Arizona (some areas); California (most 

areas); District of Columbia; Guam; Massachusetts; 

New Jersey; New York; Northern Mariana Islands; 

Puerto Rico; Trust Territories; and the Virgin 

Islands. In a smaller number of areas, listed as 

follows, the State or local permitting authority is 

delegated at least partial authority by EPA to 

implement the Federal PSD regulation: Arizona 

(some areas); California (some areas); Hawaii; 

Illinois; Minnesota; Nevada (most areas); 

Pennsylvania (some areas); and Washington. 

compliance with, permits that are 

consistent with Federal requirements. If 

one of the states listed in table IV–1 of 

this preamble as having a SIP that does 

not explicitly apply PSD to GHG 

emitters nevertheless has such a 

‘‘general authority clause,’’ then the SIP, 

read as a whole, may be considered to 

apply PSD to GHG sources. 

For an example of the type of ‘‘general 

authority clause’’ that may have this 

effect, we refer to correspondence 

between the California Bay Area Air 

Quality Management District 

(BAAQMD) and EPA Region IX that is 

included in the docket for this 

rulemaking. In a letter dated October 28, 

2009, the BAAQMD proposed to 

exercise general authority in order to 

issue air permits to sources of PM2.5

even though its air permit regulations 

did not contain specific provisions for 

PM2.5 emissions. Under the proposed 

approach, with which EPA concurred, 

BAAQMD exercised general authority 

under the administrative requirements 

within its air permit regulations, which 

provide that the Air Pollution Control 

Officer ‘‘may impose any permit 

condition that he deems reasonably 

necessary to insure compliance with 

Federal or California law or District 

regulations * * *.’’ See Regulation 

2–1–403 included in the docket for this 

rulemaking. 

Second, some states may have, in 

their SIPs, statutes, or constitutions, a 

provision that precludes ‘‘forward 

adoption,’’ that is, that prevents the 

State law from incorporating by 

reference or otherwise adopting any 

requirements not specifically adopted 

by the State legislature or other State 

authority. In particular, some states may 

include a SIP PSD applicability 

provision that incorporates by reference 

(IBR) our Federal PSD rule at 40 CFR 

52.21—including the definition of 

‘‘regulated NSR pollutant’’—but that 

further provides that this IBR is not 

‘‘rolling’’ and therefore is limited to only 

pollutants identified as regulated NSR 

pollutants as of the date the State 

adopted the PSD provision. Any of these 

provisions could limit the SIP PSD 

applicability rule to only the pollutants 

that were regulated as of the time the 

State adopted the PSD applicability 

rule, which means the SIP PSD program 

would not cover GHG-emitting sources 

until the State took specific action to 

that effect. 

IV. Proposed Action: Finding of 

Substantial Inadequacy and SIP Call 

A. Introduction 

Beginning on January 2, 2011, certain 

stationary sources that construct or 

undertake modifications will become 

subject to the CAA requirement to 

obtain a PSD permit for their GHG 

emissions. This is because of the 

following CAA statutory and EPA 

regulatory requirements: Under CAA 

sections 165(a) and 169(1), as 

interpreted through longstanding EPA 

regulations, PSD applies to sources that 

emit specified amounts of ‘‘regulated 

NSR pollutants,’’ which include 

specified air pollutants as well any 

other ‘‘[air] pollutant’’ that is ‘‘subject to 

regulation.’’ 40 CFR 51.166(j)(1), 

(b)(49)(iv). By notice dated May 7, 2010, 

EPA promulgated the Light-Duty 

Vehicle Rule (LDVR), which establishes 

requirements for GHGs. 75 FR 25324. By 

the terms of the LDVR, these emission 

limits take effect on January 2, 2011. 

The LDVR identified the GHGs to which 

it applies as a single air pollutant that 

consists of CO2, CH4, N2O, HFCs, PFCs, 

and SF6. The LDVR followed EPA’s 

Endangerment and Cause or Contribute 

Findings, issued by notice dated 

December 15, 2009, by which EPA 

found that GHGs—defined to include 

the same six constituents—may 

reasonably be anticipated to endanger 

public health and welfare. By notice 

dated April 2, 2010, EPA promulgated 

the Johnson Memo Reconsideration. 

75 FR 17004. In this action, EPA made 

clear that the regulation of GHGs by the 

LDVR will trigger the applicability of 

PSD requirements to GHG-emitting 

stationary sources as of January 2, 2011, 

because GHGs will become ‘‘subject to 

regulation’’ through the LDVR. By notice 

dated June 3, 2010, EPA promulgated 

the Tailoring Rule, which narrows PSD 

applicability to specified GHG-emitting 

sources on a specified phase-in 

schedule and makes clear that GHGs— 

defined as the same single pollutant, 

with six constituent gases, as described 

in the LDVR—are the ‘‘[air] pollutant’’ to 

which PSD requirements apply. 75 FR 

31514. Pursuant to the Tailoring Rule, 

PSD permitting requirements for 

construction or modification will apply 

to certain GHG-emitting stationary 

sources beginning on January 2, 2011, 

for the first step of the Tailoring Rule, 

and beginning on July 1, 2011, for the 

second step of the Tailoring Rule. 

A number of states do not have an 

approved PSD SIP; as a result, in these 

states 11 the applicable regulatory 

authority is EPA’s regulations, found in 

40 CFR 52.21, which constitute a FIP. 

For sources in these states, either the 

EPA Regional Office or the State acting 

as EPA’s delegatee is the permitting 

authority. Because EPA’s regulations 

apply directly, sources in these states 

that emit GHGs will become subject to 

PSD for their GHG emissions, to the 

extent provided under the Tailoring 

Rule, on January 2, 2011. These sources 

will be able, on and after January 2, 

2011, to apply for and receive in due 

course their PSD permits either from 

EPA directly or from those State 

permitting authorities acting on EPA’s 

behalf. 

All of the other states administer their 

PSD program through an approved SIP 

and, as a result, they or their local 

entities are the PSD permitting 

authority. This rulemaking concerns 

whether those approved SIP PSD 

programs include GHG-emitting sources 

and, for those that do not, the steps that 

EPA will take to assure that a PSD 

permit program that includes GHGs is in 

place. 

B. States With SIP PSD Applicability 

Provisions That Do Not Appear To 

Apply to GHG-Emitting Sources 

Our review of the SIPs and other 

authorities, as well as consultation with 

states, as described further in section 

IV.D of this preamble and the Technical 

Support Document included in the 

docket for this rulemaking, indicates 

that for 13 of the states with approved 

PSD SIPs, the PSD programs of their 

SIPs do not appear to apply to GHGemitting sources. These states are listed 

in table IV–1, ‘‘States with SIPs that Do 

Not Appear to Apply PSD to GHG 

Sources (Presumptive SIP Call List).’’ In 

a number of these SIPs, the PSD 

applicability provisions do not mirror 

EPA’s regulatory provisions by applying 

PSD requirements to sources of any air 

pollutant ‘‘subject to regulation’’; 

instead, the PSD applicability 

provisions specifically list the air 

pollutants to which the PSD program 

applies and do not include GHGs on 

that list. As a result, the PSD 

applicability provisions do not, by their 

terms, cover GHG-emitting sources. 

In addition, Connecticut’s SIP appears 

by its terms to preclude the application 

of PSD to GHG-emitting sources. 

Further, some of these states have SIP 

PSD provisions that by their terms apply 

PSD to regulated NSR pollutants, or 


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have a substantially similarly phrased 

requirement, but also have State 

constitutional or other statutory or SIP 

provisions that appear to have the effect 

of limiting PSD applicability to air 

pollutants identified on a certain date. 

Therefore, State law, read as whole, 

would not appear to apply PSD 

requirements to GHGs until the 

appropriate State authority takes action 

to specifically subject PSD to GHGs, and 

the State has not yet done so. 

We conclude that the states with SIPs 

or State law with these provisions do 

not appear to apply the PSD program to 

GHG-emitting sources, and we are 

including them in table IV–1. We 

recognize that stakeholders may have 

other interpretations of these provisions, 

and we solicit comments from 

stakeholders on their interpretations. In 

addition, some of these SIPs may 

include what we will refer to as a 

‘‘general authority provision,’’ which is 

a provision for the State to issue PSD 

permits that comply with EPA 

requirements, as described earlier in 

this preamble. If so, it is possible that 

these provisions could be interpreted to 

authorize the State in some cases to 

issue to GHG sources PSD permits that 

incorporate EPA’s regulatory 

requirements, as found in 40 CFR 

51.166. As a result, we consider table 

IV–1 to be a presumptive SIP Call list. 

TABLE IV–1—STATES WITH SIPS THAT DO NOT APPEAR TO APPLY PSD TO GHG SOURCES (PRESUMPTIVE SIP CALL

LIST) 

State (or area) EPA 

region 

Alaska ............................................................................................................................................................................................................... X 

Arizona: Pinal County; Rest of State (Excludes Maricopa County, Pima County, and Indian Country) ......................................................... IX 

Arkansas ........................................................................................................................................................................................................... VI 

California: Sacramento Metropolitan AQMD .................................................................................................................................................... IX 

Connecticut ....................................................................................................................................................................................................... I 

Florida ............................................................................................................................................................................................................... IV 

Idaho ................................................................................................................................................................................................................. X 

Kansas .............................................................................................................................................................................................................. VII 

Kentucky: Jefferson County; Rest of State ...................................................................................................................................................... IV 

Nebraska ........................................................................................................................................................................................................... VII 

Nevada: Clark County ....................................................................................................................................................................................... IX 

Oregon .............................................................................................................................................................................................................. X 

Texas ................................................................................................................................................................................................................ VI 

C. States With SIP PSD Applicability 

Provisions That Do Appear To Apply to 

GHG-Emitting Sources 

On the other hand, as noted above, for 

most of the states with approved SIPs, 

those SIPs generally apply PSD to 

sources of any ‘‘regulated NSR 

pollutant,’’ and we have not received 

information indicating that the State law 

includes other provisions that may have 

the effect of precluding PSD from 

applying to GHG-emitting sources. As a 

result, EPA is including a list of states 

with presumptively adequate SIPs in 

table IV–2, ‘‘States with SIPs That 

Appear To Apply PSD to GHG Sources 

(Presumptive Adequacy List).’’ 

TABLE IV–2—STATES WITH SIPS THAT APPEAR TO APPLY PSD TO GHG SOURCES (PRESUMPTIVE ADEQUACY LIST) 

State (or area) EPA 

region 

Alabama: Jefferson County; Huntsville; Rest of State ..................................................................................................................................... IV 

California: Mendocino County AQMD; Monterey Bay Unified APCD; North Coast Unified AQMD; Northern Sonoma County APCD .......... IX

Colorado ............................................................................................................................................................................................................ VIII 

Delaware ........................................................................................................................................................................................................... III 

Georgia ............................................................................................................................................................................................................. IV 

Indiana .............................................................................................................................................................................................................. V 

Iowa ................................................................................................................................................................................................................... VII 

Louisiana ........................................................................................................................................................................................................... VI 

Maine ................................................................................................................................................................................................................ I 

Maryland ........................................................................................................................................................................................................... III 

Michigan ............................................................................................................................................................................................................ V 

Mississippi ......................................................................................................................................................................................................... IV 

Missouri ............................................................................................................................................................................................................. VII 

Montana ............................................................................................................................................................................................................ VIII 

New Hampshire ................................................................................................................................................................................................ I 

New Mexico: Albuquerque; Rest of State ........................................................................................................................................................ VI 

North Carolina: Forsythe County; Mecklenburg; Western NC; Rest of State .................................................................................................. IV 

North Dakota ..................................................................................................................................................................................................... VIII 

Ohio ................................................................................................................................................................................................................... V 

Oklahoma .......................................................................................................................................................................................................... VI 

Pennsylvania: All except Allegheny County ..................................................................................................................................................... III 

Rhode Island ..................................................................................................................................................................................................... I 

South Carolina .................................................................................................................................................................................................. IV 

South Dakota .................................................................................................................................................................................................... VIII 

Tennessee: Chattanooga; Nashville; Knoxville; Memphis; Rest of State ........................................................................................................ IV 

Vermont ............................................................................................................................................................................................................. I 

Virginia .............................................................................................................................................................................................................. III 


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TABLE IV–2—STATES WITH SIPS THAT APPEAR TO APPLY PSD TO GHG SOURCES (PRESUMPTIVE ADEQUACY LIST)— 

Continued 

State (or area) EPA 

region 

West Virginia ..................................................................................................................................................................................................... III 

Wisconsin .......................................................................................................................................................................................................... V 

Wyoming ........................................................................................................................................................................................................... VIII 

Utah ................................................................................................................................................................................................................... VIII 

We have developed these two lists of 

states—one listing states whose PSD 

program appears to not apply to GHGemitting sources and one listing states 

whose program appears to cover such 

sources—based on our own preliminary 

research, consultation with states, and 

review of the 60-day letters, described 

earlier in this preamble, submitted thus 

far by states in response to the Tailoring 

Rule. As explained elsewhere in this 

preamble, we ask that each State with 

an approved SIP submit information 

during the comment period for this 

rulemaking pertinent to whether its 

SIP—including the PSD applicability 

provisions and any other relevant 

provisions—covers GHG-emitting 

sources. 

D. Proposed Finding of SIP Substantial 

Inadequacy and SIP Call; Solicitation of 

Comment 

For each of the states listed in table 

IV–1 of this preamble, we propose to 

issue a finding that the SIP is 

‘‘substantially inadequate * * * to 

* * * comply with [the PSD] 

requirement[s]’’ and to ‘‘require the State 

to revise the plan as necessary to correct 

such inadequacies,’’ i.e., to issue a SIP 

Call. CAA section 110(k)(5). For each of 

these states, the SIP appears to not 

apply the PSD program to GHG-emitting 

sources. 

In consultation with the affected 

states, EPA compiled relevant 

provisions of the affected States’ SIPs 

and other State law into a Technical 

Support Document for this rulemaking. 

The Technical Support Document, 

which can be found in the docket for 

this rulemaking, presents the basis for 

EPA’s proposed finding of substantial 

inadequacy for the states listed in table 

IV–1. 

As discussed elsewhere in this 

preamble, we invite comment on this 

proposal. For any State listed in table 

IV–1, if we do not receive any further 

information from the State or other 

commenters, we expect to finalize our 

proposed finding and SIP Call. Also for 

any State listed in table IV–1, if we do 

receive additional information that our 

interpretation of these provisions is 

incorrect or that the SIP includes a 

general authority provision so that, read 

as a whole, the SIP applies the PSD 

program to GHG sources, we will not 

finalize our proposed finding and SIP 

Call. 

Our basis for the proposed finding— 

and the proposed SIP Call that is based 

on this finding—is that CAA section 

110(k)(5) provides that EPA may make 

the finding when the SIP is 

‘‘substantially inadequate * * * to 

* * * comply with any requirement of 

[the CAA],’’ and this includes the PSD 

requirements. As discussed earlier in 

this preamble, SIPs are required to 

include PSD programs that apply to 

sources that emit pollutants subject to 

regulation; as a result, the SIPs at issue 

merit a finding of substantial 

inadequacy because they fail to apply 

the PSD program to GHG-emitting 

sources on and after January 2, 2011. 

For all other states with approved 

PSD SIPs—which are the ones listed in 

table IV–2—we solicit comment on 

whether their SIPs, read as a whole, 

apply the PSD program to GHG-emitting 

sources. If, on the basis of additional 

information, we conclude that their PSD 

programs do not apply to GHG-emitting 

sources, we will issue a final finding of 

substantial inadequacy and SIP Call on 

the same schedule as that for any of the 

states for which we are issuing a 

proposed finding and SIP Call. 

We recognize that PSD requirements 

will not apply to GHG-emitting sources 

until January 2, 2011, but that for any 

State for which we finalize a finding of 

substantial inadequacy and a SIP Call, 

our plan is to do so approximately one 

month in advance of that date. EPA 

believes this timing is justified. SIPs 

must include, at least a month prior to 

January 2, 2011, a provision applying 

PSD requirements to GHG-emitting 

sources as of January 2, 2011, in order 

to give sources notice that the 

requirement applies and that the State 

will act as the permitting authority. We 

recognize that as a practical matter, 

some states may wish that we impose a 

FIP effective as of January 2, 2011, in 

order to avoid any period of time when 

the GHG-emitting sources identified in 

the Tailoring Rule as subject to PSD are 

unable to obtain a permit due to lack of 

a permitting authority. We cannot 

impose a FIP until we have first 

finalized the SIP Call and given the 

State a reasonable period of time to 

make the corrective SIP submission. 

EPA strongly believes that this 

necessarily entails, for those states, 

finalizing the SIP Call prior to January 

2, 2011. 

After the close of the comment period 

for this proposed action, we will review 

all comments. If we determine that the 

PSD SIP for any State either by its terms 

does not apply to sources of GHGs or 

has conflicting provisions that create 

ambiguity as to whether it applies to 

sources of GHGs (such as an 

applicability provision that explicitly 

excludes GHG sources, coupled with a 

general-authority provision that could 

be read to authorize permitting of GHG 

sources), then, for that State, we will 

finalize the finding that the SIP is 

‘‘substantially inadequate * * * to 

* * * comply with [the PSD] 

requirement[s].’’ At the same time, we 

will finalize a SIP Call for that State. We 

will make the finding of substantial 

inadequacy, notify the State that we 

have made the finding, and issue the 

SIP Call in a final action that we intend 

to sign on or about December 1, 2010, 

and submit for publication in the 

Federal Register as soon as possible 

thereafter. We will notify the State of 

the finding of substantial inadequacy by 

letter and by posting the signed action 

on our Web Site. In view of the urgency 

of the task, which is to ensure that a 

PSD permitting authority for affected 

GHG sources is in place by January 2, 

2011, we propose to give the final SIP 

Call an effective date of its publication 

date. We recognize that this process is 

highly expedited, but we believe that 

this is essential to maximize our and the 

States’ opportunity to put in place a 

permitting authority to process PSD 

permit applications beginning on 

January 2, 2011, without which sources 

may be unable to proceed with plans to 

construct or modify. Commenters 

should feel free to advise us if they 

believe a different approach can achieve 

this goal. 


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E. Comment Period 

In order to deepen our understanding 

of what provisions are in the relevant 

PSD SIPs, and how they are to be 

interpreted, as well as to ensure that we 

have a comprehensive picture of all the 

SIPs in this regard, we ask each State to 

give us the following information by the 

close of the comment period on this 

rule: 

1. States With SIP PSD Applicability 

Provisions That Do Not Appear To 

Include GHGs 

We ask that each of the states listed 

in table IV–1 of this preamble—for 

which we have information that their 

SIP PSD applicability provisions do not 

include GHGs, and for which we 

propose a finding of substantial 

inadequacy and a SIP Call—provide the 

following information by the end of the 

comment period for this action: 

(a) Confirm, with citations and a copy 

of the relevant language, that the SIP 

PSD applicability provisions do not 

explicitly include GHG sources; 

(b) Identify and provide a copy of any 

provision that specifically precludes 

PSD applicability for GHG sources; 

(c) Identify and provide a copy of any 

provision of State constitution or other 

law, including the SIP, that may be read 

to limit the applicability of the PSD 

program to pollutants identified at a 

certain point in time, and therefore not 

to GHGs. 

(d) Indicate, with citations and a copy 

of the relevant language, if any, whether 

the SIP includes general authority for 

the State to issue PSD permits that meet 

EPA requirements; 

(e) Indicate, with citations and a copy 

of the relevant language, any other 

provisions of the SIP or State law that 

may bear on the applicability of the PSD 

program to GHG-emitting sources. 

(f) Indicate the State’s interpretation 

as to whether the SIP, read as a whole, 

does or does not apply the PSD program 

to GHG sources or authorize the State to 

issue PSD permits for GHG sources that 

meet EPA requirements. This statement 

should be made by the commissioner or 

general counsel of the State 

environmental agency, or by the 

counterpart at the local or tribal level, 

or by the State Attorney General. 

(g) If the SIP, read as a whole, does 

not apply the PSD program to GHG 

sources or authorize the issuance of 

permits to GHG sources, indicate 

whether the State plans to develop 

adequate authority to apply the PSD 

program to GHG sources and to submit 

it to EPA as a SIP revision by December 

1, 2010, which is shortly before the date 

on which, as discussed below, EPA 

intends to finalize its finding of 

inadequacy and finalize the SIP Call. 

As discussed later in this preamble, 

we also ask these states to inform us, by 

the end of the comment period, of the 

period of time (as bounded in this 

preamble) that they would accept as the 

deadline for submittal of their SIP 

revisions in response to a SIP Call. 

2. All Other States With Approved SIPs 

We request that each State with an 

approved PSD SIP (see table IV–2) that 

is not also one of the 13 States for which 

we propose a SIP Call review its PSD 

provisions to confirm that it applies the 

PSD program to GHG sources. We 

request that each of these states inform 

us if it has a SIP PSD applicability 

provision that does not by its terms 

apply to pollutants ‘‘subject to 

regulation’’ or similar language, or 

otherwise apply to GHG sources. In 

addition, we request that each of these 

states inform us if it has another State 

law provision or legal interpretation that 

may have the effect of limiting PSD 

applicability to air pollutants covered 

by EPA’s PSD program as of a certain 

date, and therefore does not include 

GHGs. For any State whose PSD 

program, for any of these reasons, may 

not apply to GHG-emitting sources, we 

request the same information described 

in section IV.E.1 of this preamble as 

soon as possible during the comment 

period. Once we receive this 

information, if we believe it shows that 

the State’s SIP PSD program does not 

apply to GHG sources, we will finalize 

a finding of substantial inadequacy and 

a SIP Call on the same schedule as any 

of the states for which we are proposing 

a finding and SIP Call. 

F. State Actions 

1. State Submission of SIP Revision 

Prior to Final SIP Call 

If a State for whose SIP we propose a 

finding of substantial inadequacy 

submits a SIP revision by December 1, 

2010, that purports to correct that 

inadequacy, we will not finalize the 

finding or SIP Call for that State. Rather, 

we will take action on their SIP 

submission promptly, as discussed 

below. 

2. State Response to SIP Call 

a. Timing of State Submittal 

Under CAA section 110(k)(5), in 

notifying the State of the finding of 

substantial inadequacy and issuing the 

SIP Call, we ‘‘may establish reasonable 

deadlines (not to exceed 18 months after 

the date of such notice) for the 

submission of such plan revisions.’’ We 

propose to allow the State 12 months 

from the date of the notice, which will 

be the date on which we sign the final 

action, to submit the SIP revision, 

unless, during the comment period, the 

State expressly advises that it would not 

object to a shorter period—as short as 3 

weeks from the date of signature of the 

final rule—in which case we will 

establish the shorter period as the 

deadline. As stated earlier in this 

preamble, EPA intends to finalize the 

SIP Call on or about December 1, 2010. 

If the Administrator signs the notice on 

that date, the earliest possible deadline 

would be December 22, 2010. The 

purpose of establishing the shorter 

period as the deadline—assuming that 

State advises us that it does not object 

to that shorter period—is to 

accommodate states that wish to ensure 

that a FIP is available as, in effect, a 

backstop to ensure that there is no gap 

in PSD permitting. If the State does not 

advise us that it does not object to a 

shorter deadline, then the 12-month 

deadline will apply. 

It must be emphasized that for any 

State that receives a deadline after 

January 2, 2011, the affected GHGemitting sources in that State—which 

are those larger GHG-emitters identified 

in the Tailoring Rule—will be unable to 

receive a federally approved permit 

authorizing construction or 

modification. Therefore, after January 2, 

2011, these sources may not lawfully be 

able to construct or modify until the 

date that EPA either approves the SIP 

submittal or promulgates a FIP. 

EPA proposes that this 3-week-to-12- 

month time period, although expedited, 

meets the CAA section 110(k)(5) 

requirement as a ‘‘reasonable deadline[]’’ 

and we welcome comment on this 

interpretation. The term ‘‘reasonable 

deadline[],’’ as it appears in that 

provision, is not defined. We interpret 

it to mean a time period that is sensible 

or logical, based on all the facts and 

circumstances. Those facts and 

circumstances include (i) the State SIP 

development and submission process, 

(ii) the imperative to minimize the 

period when sources will be subject to 

PSD but not have available a PSD 

permitting authority to act on their 

permit application, and therefore will be 

unable to construct or modify; and (iii) 

the preferences of the State. The 

following elaborates on those three facts 

and circumstances. 

First, although the 12-month period is 

consistent with the time period required 

for SIP revisions in at least one previous 

SIP call that EPA issued, the NOx SIP 


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12 ‘‘Finding of Significant Contribution and 

Rulemaking for Certain States in the Ozone 

Transport Assessment Group Region for Purposes of 

Reducing Regional Transport of Ozone; Rule.’’ 63 

FR 57356 (October 27, 1998). 

Call,12 we recognize that a period 

shorter than 12 months is expedited in 

light of the time involved in most State 

SIP development and submission 

processes. In particular, we recognize 

that some states may need to undertake 

full-blown rulemaking actions, which 

may typically be time-consuming, and 

we acknowledge that some states may 

need to change their statutory 

provisions, which may typically be even 

more time-consuming. Even so, we 

understand that at least some states 

have emergency processes that may be 

used to significantly expedite action. 

Although this is a matter of State 

process, we are prepared, as described 

elsewhere in this preamble, to work 

with the states to develop expedited 

methods for developing, processing, and 

submitting SIP revisions. 

Second, the need to minimize the 

period when sources may be unable to 

construct or modify due to the lack of 

regulatory authority to act on their 

permit applications is an essential 

consideration. A shorter period for SIP 

submittal means that either the State, 

through the SIP revision that it submits 

on an expedited basis in light of this 

tight schedule, or EPA, through a FIP, 

will become the permitting authority 

sooner and will then be able to act on 

permit applications and issue permits 

that allow new construction and 

modification of existing plants. The 

purposes of the PSD provisions include 

both the protection of the environment 

and the promotion of economic 

development, see, e.g., CAA section 

160(3)–(4), and the D.C. Circuit has held 

that the terms of the PSD provisions 

should be interpreted with these goals 

in mind. New York v. EPA, 413 F.3d 3, 

23(D.C. Cir.), rehearing en banc den., 

431 F.3d 801 (2005). Accordingly, 

determining a ‘‘reasonable deadline[]’’ 

for the submittal of a PSD SIP revision 

should account for the need to promote 

economic development by assuring the 

availability of a permitting authority to 

process permit applications. 

Finally, the preference of the State is 

important because the deadline for 

submittal of the corrective SIP revision 

in response to a SIP Call acts as a 

burden on the State. If the State does not 

object to an earlier deadline under 

which it must operate—which, in a 

sense, is contrary to the State’s selfinterest because an earlier deadline 

typically increases burdens—then that 

is an indication of the reasonableness of 

the deadline. 

We suggest the following model 

language that a State wishing to indicate 

that it does not object to a deadline 

shorter than 12 months could consider 

using in its response to our request for 

comments. Of course, the State is not 

obligated to use this specific language, 

and we present it solely for the 

convenience of the states: 

U.S. EPA has proposed a finding of 

substantial inadequacy and SIP Call under 

Clean Air Act section 110(k)(5) concerning 

the State’s SIP PSD applicability provisions. 

Further, U.S. EPA has proposed a deadline 

for the State’s submittal of a corrective SIP 

revision. U.S. EPA has requested the State’s 

comments on the proposed deadline. In light 

of EPA’s perception of the importance of 

having in place as soon as possible a PSD 

permitting authority for any GHG-emitting 

sources that may be subject to PSD 

requirements, the State does not object to 

U.S. EPA’s establishment of a deadline of 

[identify the deadline]. 

b. Substance of State Submittal 

(i) Addition of GHGs to List of 

Pollutants Subject to PSD 

We propose to make a finding of 

substantial inadequacy and issue a SIP 

Call for each State whose SIP fails to 

apply the PSD program to GHG-emitting 

sources. Accordingly, for the State to 

correct its SIP, the State must submit a 

SIP revision that applies PSD to GHG 

sources. For those states whose SIP 

applies PSD to listed air pollutants, the 

State may accomplish this correction in 

at least two different ways. First, the 

State may revise its SIP so that instead 

of applying PSD to sources of 

individually listed pollutants, the SIP 

applies PSD to sources that emit any 

‘‘regulated NSR pollutant.’’ We 

recommend that states follow this 

approach. It is consistent with our 2002 

‘‘NSR Reform’’ rule. ‘‘Prevention of 

Significant Deterioration (PSD) and 

Nonattainment New Source Review 

(NSR); Final Rule and Proposed Rule,’’ 

67 FR 80186, 80240 (December 31, 

2001). In addition, it would resolve any 

issues about whether the State has 

authority to issue permits for sources of 

PM2.5 emissions, as well as permits for 

sources of pollutants that EPA may 

subject to regulation for the first time in 

the future. Secondly, and as an 

alternative, the State may retain its 

approach of applying PSD to sources of 

individually listed pollutants but 

submit a SIP revision that includes 

GHGs on that list of pollutants. If a State 

chooses this second approach, we will 

approve the SIP revision as SIP 

strengthening. 

(ii) Definition and Calculation of 

Amount of GHGs 

In adding GHGs to the list of 

pollutants subject to PSD applicability, 

the State must define GHGs as a single 

pollutant that is the aggregate of the 

group of six gases: CO2, CH4, N2O, 

HFCs, PFCs, and SF6. As EPA stated in 

the Tailoring Rule, ‘‘[t]he final LDVR for 

GHGs specifies, in the rule’s 

applicability provisions, the air 

pollutant subject to control as the 

aggregate group of the six GHGs * * *. 

Because it is this pollutant that is 

regulated under the LDVR, it is this 

pollutant to which PSD * * * 

appli[es].’’ 75 FR 31528. 

Although we propose to require that 

the State define GHGs as described 

immediately above, we solicit comment 

on whether the State may adopt a 

different definition that is at least as 

stringent, and, if so, what such a 

definition might be. We caution that a 

definition that includes more gases than 

the six identified above could prove to 

be less stringent in certain ways because 

it could allow greater opportunities for 

a source of different gases to net out of 

PSD. 

We note that in this rulemaking, we 

are not addressing the issue of 

accounting for emissions of GHGs from 

bioenergy and other biogenic sources 

(which are generated during the 

combustion or decomposition of 

biologically based material such as 

forest or agriculture products). When we 

finalized the Tailoring Rule, we noted 

that EPA planned to seek comment on 

how to address emissions of biogenic 

CO2 under the PSD and title V programs 

through future action, such as a separate 

Advance Notice of Proposed 

Rulemaking (ANPR) (75 FR at 31591). 

As a first step, we recently issued a Call 

for Information (CFI) to solicit public 

comment and data on technical issues 

that might be used to consider biomass 

fuels and the emissions resulting from 

their combustion differently with regard 

to applicability under PSD and with 

regard to the BACT review process 

under PSD. See ‘‘Call for Information: 

Information on Greenhouse Gas 

Emissions Associated with Bioenergy 

and Other Biogenic Sources,’’ 75 FR 

41173 (July 15, 2010). 

Additional information on this CFI is 

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

climatechange/emissions/ 

biogenic_emissions.html. In the CFI we 

stated: ‘‘In response to this Call for 

Information, interested parties are 

invited to assist EPA in the following: 

(1) Surveying and assessing the science 

by submitting research studies or other 

relevant information, and (2) evaluating 

different accounting approaches and 

options by providing policy analyses, 

proposed or published methodologies, 

or other relevant information. Interested 

parties are also invited to submit data or 


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13We indicated in the Tailoring Rule (75 FR at 

31525–26) that a State may undertake a SIP action 

to either: (1) Revise its PSD program, which already 

applies to GHG-emitting sources, in order to 

implement the tailoring approach; or (2) revise its 

PSD program so that it applies to GHG-emitting 

sources, in which case the State must also establish 

its PSD applicability thresholds for PSD. This 

rulemaking relates to the latter described SIP action. 

14Following a 1997 review of our national 

ambient air quality standards (‘‘NAAQS’’) for 

particulate matter, we promulgated NAAQS for fine 

particles (PM2.5). We then designated all areas of the 

country as ‘‘attainment,’’ ‘‘nonattainment,’’ or 

unclassifiable for the PM2.5 standards, which 

became effective in April 2005. Pursuant to the 

CAA, States are obliged to revise their PSD 

regulations to include the new PM2.5 standards. 

other relevant information about the 

current and projected scope of GHG 

emissions from bioenergy and other 

biogenic sources.’’ 75 FR at 41174. 

Without prejudging the outcome of 

the CFI process, EPA anticipates that the 

comments we receive in response to the 

CFI, with regard to applicability under 

PSD and with regard to the BACT 

review process under PSD, will inform 

any subsequent actions to address 

applicability of emissions of GHGs from 

bioenergy and other biogenic sources 

under the PSD program. 

(iii) Thresholds 

For a State to correct its SIP, the State 

must submit a SIP revision that applies 

PSD to GHG sources. Once a State 

applies the PSD program to GHGemitting sources, the State must 

determine the threshold for emissions 

from those sources that will trigger PSD. 

In the Tailoring Rule, EPA promulgated 

a determination that the CAA thresholds 

of 100 or 250 tpy (depending on the 

source category) would not apply as of 

January 2, 2011, or for a period of years 

thereafter, in light of, in part, 

administrative concerns. Instead, EPA 

promulgated a phase-in approach that 

limits PSD applicability to only the 

largest GHG emitting sources for a 

period of time. 

A State, in revising its SIP to apply 

PSD to GHG sources, may adopt the 

Tailoring Rule phase-in approach into 

its SIP or it may adopt lower thresholds, 

but if it adopts lower thresholds, it must 

show that it has ‘‘adequate personnel 

[and] funding * * * to carry out,’’ that 

is, administer and implement, the PSD 

program with those lower thresholds, in 

accordance with CAA section 

110(a)(2)(E)(i).13

In the Tailoring Rule, EPA adopted a 

CO2e metric and use of short tons (as 

opposed to metric tons) for calculating 

GHG emissions in order to implement 

the higher thresholds. 75 FR 31530, 

31532. As noted above, a State retains 

the authority to adopt lower thresholds 

than in the Tailoring Rule in order to 

meet statutory requirements. As a result, 

the states are not obligated to adopt the 

CO2e metric or use of short tons; 

however, the State must assure that its 

approach is at least as stringent as the 

thresholds in the Tailoring Rule. 

(iv) State Adoption of ‘‘Regulated NSR 

Pollutants’’ 

Beyond this, we encourage—but do 

not propose to require—the states for 

which we propose a SIP Call to submit 

a SIP revision to adopt the PSD 

applicability provision found in EPA 

regulations—which is that PSD applies 

to ‘‘regulated NSR pollutant[s],’’ 

including any air pollutant ‘‘subject to 

regulation’’—instead of simply adding 

GHGs to the SIP’s list of pollutants 

subject to PSD. 

There are many advantages for a State 

to revise its SIP PSD applicability 

provisions in the manner that we 

encourage. First, doing so would more 

readily incorporate, for State law 

purposes, the phase-in approach for 

PSD applicability to GHG sources that 

EPA has developed in the Tailoring 

Rule and expects to develop further 

through additional rulemaking. As 

explained in the Tailoring Rule, 

incorporating this phase-in approach for 

State law purposes—including Steps 1 

and 2 of the phase-in as promulgated in 

the Tailoring Rule and additional steps 

of the phase-in that EPA may 

promulgate in the future—can be most 

readily accomplished through State 

interpretation of the ‘‘subject to 

regulation’’ prong of the definition of 

‘‘regulated NSR pollutant.’’ If, instead of 

adopting into its SIP the ‘‘regulated NSR 

pollutant’’ trigger for PSD applicability, 

the State simply adds GHGs to its list of 

pollutants subject to PSD, then the SIP 

will not include the term ‘‘subject to 

regulation’’ and therefore may not 

include any vehicle or ‘‘hook’’ for the 

State to adopt by interpretation the 

current and any future steps of the 

phase-in approach. As a result, the State 

may have to adopt and submit for EPA 

approval additional SIP revisions to 

incorporate the current and future steps 

of the phase-in approach. 

There are other advantages to a State 

that adopts EPA’s definition of 

‘‘regulated NSR pollutant.’’ The SIP 

would apply PSD to sources emitting 

PM2.5, thereby resolving as well the 

problem that some SIPs have of failing 

to cover PM2.5 for PSD purposes. That is, 

many of the states for which we propose 

a SIP Call due to their SIPs’ failure to 

apply PSD to sources that emit GHGs 

also may fail to apply PSD to sources 

that emit PM2.5.14 To this point in time, 

this failure has not been a problem 

because we have allowed the State to 

issue PSD permits for sources of PM2.5

emissions through what is commonly 

called EPA’s ‘‘1997 PM10 surrogate 

policy.’’ Under the 1997 PM10 surrogate 

policy, sources and permitting 

authorities satisfy the CAA 

requirements for PM2.5 in PSD permits 

by applying the PM10 requirements as a 

surrogate for PM2.5. Each permit that 

relies on our PM10 surrogate policy is 

subject to review as to the adequacy of 

the presumption that the PM2.5

requirements are satisfied. However, we 

note that EPA has issued a notice of 

proposed rulemaking to end the 

prospective use of the 1997 PM10

surrogate policy by the end of 2010 (75 

FR 6827, February 11, 2010). We are not 

at this time taking action with respect to 

these SIPs on account of PM2.5, but we 

encourage states to submit SIP revisions 

that apply PSD to sources of PM2.5. 

In addition, the SIP would, in effect, 

automatically update the State PSD 

program to apply PSD to any newly 

regulated pollutants and thereby avoid 

recurrence of the present problem of a 

gap in the PSD program coverage for 

newly regulated pollutants. Finally, 

State adoption of EPA’s definition of 

‘‘regulated NSR pollutant’’ would allow 

the SIP to mirror EPA regulations and 

the SIPs of most states, which may 

promote consistency and ease 

administration. 

Notwithstanding the advantages to a 

State of revising its SIP to apply PSD to 

‘‘regulated NSR pollutants,’’ we do not, 

at this time, propose a finding that the 

SIP is substantially inadequate to 

comply with a CAA requirement or 

propose to issue a SIP call that would 

require a SIP revision that applies PSD 

to ‘‘regulated NSR pollutants.’’ Instead, 

as noted above, our proposed finding 

and SIP call are limited to the failure to 

apply PSD to GHG-emitting sources, and 

the SIP revision may simply include 

GHGs on the State’s list of pollutants 

subject to PSD. We do not propose to 

require the ‘‘regulated NSR pollutant’’ 

approach because that approach is not 

necessary to correct the substantial 

inadequacy—which is the failure of the 

PSD SIP to cover GHG sources—for 

which we propose to issue a SIP Call. 

Rather, that substantial inadequacy may 

be corrected more narrowly by listing 

GHGs. 

3. General Authority Provision 

As noted earlier in this preamble, 

some SIPs that apply PSD to sources of 

specified pollutants, not including 

GHGs, may also include a general 

authority provision that provides 

general authority to issue PSD permits 

that meet EPA requirements. For states 

that include such general authority, it 


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may be possible to read their SIPs as a 

whole to authorize the issuance of PSD 

permits to GHG sources. In that case, 

EPA would not finalize a finding of 

substantial inadequacy or a SIP Call for 

that State. 

Even so, EPA encourages states with 

these SIP provisions to submit a SIP 

revision that applies PSD to GHGemitting sources. Such a SIP revision 

would add clarity to the SIP and, in 

general, carry the benefits described 

earlier in this preamble. 

G. EPA Actions on SIP Submittals; 

Findings of Failure To Submit and 

Promulgation of FIPs 

1. Actions on SIP Submittals 

As noted above, for any State for 

which EPA proposes a finding of 

substantial inadequacy and SIP Call but 

that submits a SIP revision before 

December 1, 2010, EPA will not issue a 

final finding of substantial inadequacy 

or a SIP Call. Instead, EPA will take 

action on the SIP submittal as quickly 

as possible. 

By the same token, for any State for 

which EPA has issued a final finding of 

substantial inadequacy and a SIP Call, if 

the State submits the SIP revision 

within the submittal deadline, then EPA 

will not issue a finding of failure to 

submit or promulgate a FIP. Instead, 

EPA will take action on the SIP 

submittal as quickly as possible. 

We reiterate and encourage states to 

keep in mind that PSD applicability for 

certain GHG sources begins January 2, 

2011. As such, even states with 

proposed SIP revisions will not be able 

to issue federally approved PSD permits 

for construction or modification to 

affected sources until those revisions are 

approved. The affected source would be 

able to receive a State-issued permit, but 

the lack of a federally approved permit 

means that the source would not be in 

accordance with Federal requirements if 

it constructed or modified. In light of 

this potential for burden on the affected 

sources, we intend to act on any SIP 

submittals that we receive as promptly 

as possible. 

For example, upon request of the 

State, we will parallel-process the SIP 

submittal. Under this approach, the 

State sends us the draft of the SIP 

revision on which it plans to seek 

public comment at the State level, in 

accordance with CAA section 110(a)(2), 

and we will publish a proposed 

approval of that draft SIP revision. In 

addition, at the same time the State 

solicits such public comment of its SIP 

revision at the State level, we will 

initiate a separate public proceeding on 

our proposed approval of the SIP 

revision at the Federal level. If, 

subsequently, the SIP revision that the 

State adopts and submits to EPA is 

substantially similar to the draft on 

which EPA solicited comment, then 

EPA will proceed to take final action on 

the SIP submittal and will not re-notice 

it for public comment. EPA has 

successfully employed the parallelprocessing approach in past 

rulemakings, and we believe that to 

employ it in this process could 

significantly shorten the time EPA 

needs to act on the SIP revision. 

2. Findings of Failure To Submit and 

Promulgation of FIPs 

If the State does not meet its SIP 

submittal deadline, we will immediately 

issue a finding of failure to submit a 

required SIP submission under CAA 

section 110(c)(1)(A) and immediately 

thereafter issue a FIP. This timing for 

FIP promulgation is authorized under 

CAA section 110(c)(1), which authorizes 

us to promulgate a FIP ‘‘at any time 

within 2 years after’’ finding a failure to 

submit a required SIP submission. We 

discuss our approach to the FIP in the 

companion notice to this rulemaking 

concerning FIPs for failure to submit the 

required PSD SIP revision. 

3. Rescission of the FIP 

After we have promulgated a FIP, it 

must remain in place until the State 

submits a SIP revision and we approve 

that SIP revision. CAA section 110(c)(1). 

Under the present circumstances, we 

will act on a SIP revision to apply the 

PSD program to GHG sources as quickly 

as possible and, upon request of the 

State, will parallel-process the SIP 

submittal in the manner described 

earlier in this preamble. If we approve 

such a SIP revision, we will, at the same 

time, rescind the FIP. We discuss this 

approach in the companion notice to 

this rulemaking concerning FIPs for 

failure to submit the required PSD SIP 

revision. 

H. Streamlining the State Process for 

SIP Development and Submittal 

As stated earlier in this preamble, we 

recognize that the deadline we are 

giving states to submit their SIP 

revisions is expeditious. EPA 

understands that each State must 

determine whether its own regulatory 

development process allows for 

streamlining, and we defer to the states 

on the extent to which they may choose 

to streamline the process. Given the 

exigencies, we believe a streamlining 

approach could be beneficial to a State 

in meeting its deadline. We are prepared 

to work with the states to develop 

methods to streamline the State 

administrative process, although we 

recognize that the states remain fully in 

charge of their own State processes. We 

solicit recommendations during the 

comment period for ways to streamline 

the State process for adopting and 

submitting these SIPs, and to streamline 

or simplify what is required for the SIP 

submittal. 

For example, we may streamline the 

process as it concerns public hearing 

requirements. Many states require that 

the underlying State regulation that the 

State intends to develop into the SIP 

submittal undergo a public hearing. In 

addition, the CAA requires that the 

State provide a public hearing on the 

proposed SIP submittal, under CAA 

section 110(a)(2). EPA solicits public 

comment on whether it may, consistent 

with the CAA, accept the public hearing 

that the State holds on the underlying 

regulation as meeting the requirement 

for the hearing on the SIP submittal, as 

long as the State provides adequate 

public notice of the hearing, and EPA 

will not require a separate SIP hearing. 

I. Primacy of the SIP Process 

This proposal is secondary to our 

overarching goal, which is to assure that 

in every instance, it will be the State 

that will be that permitting authority. 

EPA continues to recognize that the 

states are best suited to the task of 

permitting because they and their 

sources have experience working 

together in the State PSD program to 

process permit applications. EPA seeks 

to remain solely in its primary role of 

providing guidance and acting as a 

resource for the states as they make the 

various required permitting decisions 

for GHG emissions. 

Accordingly, beginning immediately 

we intend to work closely with the 

states—as we have already begun to do 

since earlier in the year—to help them 

promptly develop and submit to us their 

corrective SIP revisions that extend 

their PSD program to GHG-emitting 

sources. Moreover, we intend to 

promptly act on their SIP submittals. 

Again, EPA’s goal is to have each and 

every affected State have in place the 

necessary permitting authorities by the 

time businesses seeking construction 

permits need to have their applications 

processed and the permits issued—and 

to achieve that outcome by means of 

engaging with the states directly 

through a concerted process of 

consultation and support. 

EPA is taking up the additional task 

of proposing this SIP Call and the 

companion FIP action only because the 

Agency believes it is compelled to do so 

by the need to assure businesses, to the 

maximum extent possible and as 


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promptly as possible, that a permitting 

authority is available to process PSD 

permit applications for GHG-emitting 

sources once they become subject to 

PSD requirements on January 2, 2011. 

In order to provide that assurance, we 

are obligated to recognize, as both states 

and the regulated community already 

do, that there may be circumstances in 

which states are simply unable to 

develop and submit those SIP revisions 

by January 2, 2011, or for some period 

of time beyond that date. As a result, 

absent further action by EPA, those 

States’ affected sources confront the risk 

that they may have to put on hold their 

plans to construct or modify, a risk that 

may have adverse consequences for the 

economy. 

Given these exigent circumstances, 

EPA proposes this plan, within the 

limits of our power, with the intent to 

make a back-up permitting authority 

available—and to send a signal of 

assurance expeditiously in order to 

reduce uncertainty and thus facilitate 

businesses’ planning. Within the design 

of the CAA, it is EPA that must fill that 

role of back-up permitting authority. 

This SIP Call action and the companion 

FIP action fulfill the CAA requirements 

to establish EPA in that role. 

At the same time, we propose these 

actions with the intent that states retain 

as much discretion as possible in the 

hand of the states. In this rulemaking, 

EPA proposes states may choose the 

deadline they consider reasonable for 

submission of their corrective SIP 

revision. If, under CAA requirements, 

we are compelled to promulgate a FIP, 

we invite the affected State to accept a 

delegation of authority to implement 

that FIP, so that it will still be the State 

that processes the permit applications, 

albeit operating under Federal law. In 

addition, if we are compelled to issue a 

FIP, we intend to continue to work 

closely with the State to assist it in 

developing and submitting for approval 

its corrective SIP revision, so as to 

minimize the amount of time that the 

FIP must remain in place. 

Finally, we can report that in informal 

conversations, officials of various states 

have acknowledged the need for our SIP 

call and FIP actions. That is, they have 

acknowledged that a short-term FIP may 

be necessary in their states to establish 

permitting authority to construct and 

modify in accordance with 

environmental safeguards for these 

sources. In addition, some states have 

indicated that they will closely consider 

their opportunities to accept delegation 

of the permitting responsibilities. 

J. Sanctions 

Under CAA section 179(a)(3)(A), if 

EPA finds that a State failed to submit 

a PSD SIP revision as required under a 

SIP Call, then a mandatory sanctions 

clock begins to run, so that if the State 

does not submit the required SIP 

revision within 18 months, EPA must 

impose one of two sanctions identified 

under CAA section 179; if the State does 

not submit the required SIP revision 

within another 6 months, EPA must 

impose the second of the sanctions. 

However, because each sanction applies 

only to nonattainment areas, it has been 

a longstanding EPA position that a 

finding that a State has failed to submit 

a required SIP revision for a PSD area 

will not trigger mandatory sanctions. 

The two sanctions are described in 

CAA section 179(b) and include: (i) 

‘‘Highway sanctions,’’ which are ‘‘a 

prohibition, applicable to a 

nonattainment area, on the approval’’ of 

certain highway construction projects or 

certain Federal grants for highway 

construction, CAA section 179(b)(1); 

and (ii) ‘‘[i]n applying the emission 

offset requirements of [CAA section 173] 

to new or modified sources or emissions 

units for which a permit is required 

under this part, the ratio of emissions 

reductions to increased emissions shall 

be at least 2 to 1.’’ CAA section 

179(b)(2). 

Each of these sanctions applies, by its 

terms, to nonattainment areas. That is, 

as just quoted, CAA section 179(b)(1) 

limits the application of the highway 

sanctions ‘‘to a nonattainment area,’’ and 

the offsets sanctions under CAA section 

173(c) apply only to nonattainment 

areas. See, e.g., CAA section 173(c)(1) 

(referring to ‘‘any offset requirement 

under this part [D],’’ which is entitled, 

‘‘Plan Requirements for Nonattainment 

Areas’’); section 182(b)(5) (offset 

requirement for ozone moderate areas); 

section 182(c)(10) (offset requirement 

for ozone serious areas); section 

182(d)(2) (offset requirement for ozone 

severe areas); section 182(e)(1) (offset 

requirement for ozone extreme areas). 

Neither of the mandatory sanctions 

provided under CAA section 179(b) 

applies to attainment/unclassifiable 

areas. 

As a result, a finding that a State has 

failed to submit a required SIP revision 

will not trigger mandatory sanctions. 

K. Title V 

We note that a number of states may 

have a similar problem with their 

approved title V operating permit 

programs, (i.e., that their title V 

programs do not apply to GHG-emitting 

sources). We intend to address this issue 

through separate rulemaking. 

V. 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 imposes new information 

collection burden. Although this action 

asks states to provide information 

during the comment period, the 

information requested, which concerns 

whether the states have authority to 

regulate GHGs under their SIP PSD 

provisions, is substantially similar to 

the information already requested of the 

states in the Tailoring Rule. 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 respectively. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

The tailoring rule does not establish 

any new requirements (either control or 

reporting) for any sources. It merely 

establishes the thresholds that trigger 

NSR and title V for GHG sources. The 

trigger for GHG and title V is not due to 

the tailoring rule but the result of the 

endangerment finding and the LDVR. 

The NSR and title V ICRs will need to 

be modified to include the new sources 

that will be triggered due to the GHG 

requirements (in July 2011). The Agency 

anticipates making such modifications 

upon renewal of the NSR and title V 

ICRs at the end of the year. 

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 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
53906 Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules 

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-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

This proposed rule will affect states 

and will not, in and of itself, directly 

affect sources. In addition, although this 

rule could lead to Federal permitting 

requirements for certain sources, those 

sources are large emitters of GHGs and 

tend to be large sources. 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. 

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 

certain State, local or tribal governments 

to meet their existing obligation for PSD 

SIP submittal, but with lesser 

expenditures. Thus, this 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 

requirements that might significantly or 

uniquely affect 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 

Executive Order 13132. This action 

merely prescribes EPA’s action for states 

that do not meet their existing 

obligation for PSD SIP submittal. 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 this action, EPA is not 

addressing any tribal implementation 

plans. This action is limited to states 

that do not meet their existing 

obligation for PSD SIP submittal. 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 it merely prescribes 

EPA’s action for states that do not meet 

their existing obligation for PSD SIP 

submittal. 

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 supply, 

distribution, or use of energy. This 

action merely prescribes EPA’s action 

for states that do not meet their existing 

obligation for PSD SIP submittal. 

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 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. This proposed rule 

merely prescribes EPA’s action for states 

that do not meet their existing 

obligation for PSD SIP submittal. 

VI. Statutory Authority 

The statutory authority for this action 

is provided by sections 101, 111, 114, 

116, and 301 of the CAA as amended 

(42 U.S.C. 7401, 7411, 7414, 7416, and 

7601). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon dioxide, 

Carbon dioxide equivalents, Carbon 

monoxide, 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. 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules 53907 

Dated: August 12, 2010. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2010–21701 Filed 9–1–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2010–0521; FRL–9196–2] 

Revisions to the Arizona State 

Implementation Plan, Maricopa County 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the Maricopa County 

portion of the Arizona State 

Implementation Plan (SIP). These 

revisions concern particulate matter 

(PM) emissions from fugitive dust 

sources such as construction sites and 

related activities, unpaved roads, 

unpaved parking lots, and disturbed 

soils on vacant lots. We are approving 

local rules that regulate these emission 

sources under the Clean Air Act as 

amended in 1990 (CAA or the Act). We 

are taking comments on this proposal 

and plan to follow with a final action. 

DATES: Any comments must arrive by 

October 4, 2010. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2010–0521, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions. 

2. E-mail: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through http:// 

www.regulations.gov or e-mail. http:// 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send e-mail 

directly to EPA, your e-mail address 

will be automatically captured and 

included as part of the public comment. 

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. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Steckel, EPA Region IX, (415) 

947–4115, steckel.andrew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rules did the State submit? 

B. Are there other versions of these rules? 

C. What is the purpose of the submitted 

rule revisions? 

II. EPA’s Evaluation and Action 

A. How is EPA evaluating the rules? 

B. Do the rules meet the evaluation 

criteria? 

C. EPA Recommendations To Further 

Improve the Rules 

D. Public Comment and Final Action 

III. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What rules did the State submit? 

Table 1 lists the rules addressed by 

this proposal with the dates that they 

were adopted by the local air agency, 

the Maricopa County Air Quality 

Department (MCAQD) and submitted by 

the Arizona Department of Air Quality 

(ADEQ). 

TABLE 1—SUBMITTED RULES

Local agency Rule No. Rule title Adopted Submitted 

MCAQD ............................... 310 Fugitive Dust From Dust-Generating Operations .......... 01/27/10 04/12/10 

MCAQD ............................... 310.01 Fugitive Dust From Non-Traditional Sources of Fugitive 

Dust.

01/27/10 04/12/10 

MCAQD ............................... ............................ Appendix C—Fugitive Dust Test Methods ..................... 03/27/08 07/10/08 

On June 8, 2010, EPA determined that 

the Rule 310 and 310.01 submittals from 

Maricopa County met the completeness 

criteria in 40 CFR part 51 appendix V; 

these criteria must be met before formal 

EPA review begins. 

B. Are there other versions of these 

rules? 

There are prior versions of Rule 310, 

Rule 310.01 and Appendix C in the SIP. 

On August 21, 2007, EPA approved and 

incorporated within the SIP the April 7, 

2004 adopted versions of Rule 310, Rule 

310.01, and Appendix C (see 72 FR 

46564). Maricopa County submitted, 

through the ADEQ, the March 26, 2008 

adopted versions of Rule 310, Rule 

310.01, and Appendix C to EPA on July 

10, 2008. We have not acted on these 

versions of the rules. The January 27, 

2010 version of Rules 310 and 310.01, 

the subject of this proposal, however, 

incorporates the 2008 revisions as well 

as these latest 2010 amendments. 

Consequently, for this proposal, we 

reviewed all amendments and the rules 

as a whole. In the case of Appendix C, 

we reviewed the submitted March 27, 

2008 version since there was no 

subsequent submittal. 

C. What is the purpose of the submitted 

rule revisions? 

PM contributes to effects that are 

harmful to human health and the 

environment, including premature 

mortality, aggravation of respiratory and 

cardiovascular disease, decreased lung 

function, visibility impairment, and 

damage to vegetation and ecosystems. 

Section 110(a) of the CAA requires 

States to submit regulations that control 

PM emissions. Rule 310 is designed to 

limit the emissions of fugitive dust or 

particulate matter from activity related 

to land-clearing, earthmoving, 

construction, demolition, bulk material 

hauling, temporary staging areas and 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1