Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 2581 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves the establishment of a safety 

zone. 

An environmental analysis checklist 

and a categorical exclusion 

determination are available in the 

docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295; 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.T11–387 to read as 

follows: 

§ 165.T11–387 Safety Zone; Lake Mead 

Intake Construction; Lake Mead, Boulder 

City, NV 

(a) Location. The limits of the safety 

zone will include the navigable waters 

of Lake Mead within a 1300 foot radius 

of the construction vessels working on 

Lake Mead Intake #3, located at 

approximately 36°05′24′′ N, 114°45′60′′ 

W. 

(b) Enforcement Period. This section 

will be in effect from January 1, 2011 

through June 30, 2011. The safety zone 

will only be enforced during blasting 

operations. Blasting operations will 

occur weekly at 8 a.m. and 11 a.m., 

Mondays through Thursdays, and at 8 

a.m. on Fridays. The Coast Guard will 

publish a Local Notice to Mariners 

before the rule takes effect. The 

construction crew will notify the public 

via Broadcast Notice to Mariners at least 

one hour prior to commencement of 

each blasting operation. In the event 

additional blasts are required due to the 

needs of the construction company, the 

public will be notified as soon as 

practicable, but in no event less than 

one hour prior to blasting. If blasting 

concludes prior to the scheduled 

termination time, the COTP will cease 

enforcement of this safety zone and a 

Broadcast Notice to Mariners will be 

issued to notify the public that 

enforcement has ended. 

(c) Definitions. The following 

definitions apply to this section: 

(1) Designated representative means 

Commissioned, Warrant, or Petty 

Officers of the Coast Guard, Coast Guard 

Auxiliary, or local, state, and federal 

law enforcement vessels who have been 

authorized to act on the behalf of the 

COTP. 

(2) Unauthorized personnel and 

vessels, means any civilian boats, 

fishermen, divers, and swimmers. 

(d) Regulations. (1) Entry into, transit 

through or anchoring within this safety 

zone is prohibited unless authorized by 

the COTP San Diego or his designated 

representative. 

(2) Unauthorized personnel and 

vessels wishing to transit through the 

safety zone may request authorization to 

do so from the COTP San Diego or his 

designated representative using VHF– 

FM Channel 16, or telephone number 

(619) 278–7033. 

(3) Vessels involved in construction 

operations are allowed within the 

confines of the established safety zone. 

(4) All persons and vessels shall 

comply with the instructions of the 

Coast Guard COTP or his designated 

representative. 

(5) Upon being hailed by U.S. Coast 

Guard or other official personnel by 

siren, radio, flashing light, or other 

means, the operator of a vessel shall 

proceed as directed. 

(6) The Coast Guard may be assisted 

by other federal, state, or local agencies. 

Dated: December 29, 2010. 

P.J. Hill, 

Commander, U.S. Coast Guard, Acting 

Captain of the Port San Diego. 

[FR Doc. 2011–692 Filed 1–13–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0107; FRL–9253–3] 

Action To Ensure Authority To Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas 

Emissions: Federal Implementation 

Plan for Jefferson County, KY 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is establishing a federal 

implementation plan (FIP) to apply in 

Jefferson County, Kentucky because the 


srobinson on DSKHWCL6B1PROD with RULES
2582 Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 

1For convenience, we refer to ‘‘states’’ in this 

rulemaking to collectively mean states and local 

permitting authorities. 

2Action 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— 

Final rule, 75 FR 77698 (December 13, 2010). 

3Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 

31514 (June 3, 2010). 

Louisville Metro Air Pollution Control 

District (LMAPCD), through the 

Commonwealth of Kentucky, has not 

submitted by its established deadline of 

January 1, 2011, a state implementation 

plan (SIP) revision to apply their Clean 

Air Act (CAA or Act) Prevention of 

Significant Deterioration (PSD) program 

to sources of greenhouse gases (GHGs). 

This action will ensure that a permitting 

authority—EPA—is available in 

Jefferson County, Kentucky to issue 

preconstruction PSD permits to GHGemitting sources. This action is related 

to EPA’s recent final rule, the GHG PSD 

SIP Call, published on December 13, 

2010, in which EPA made a finding of 

substantial inadequacy and issued a SIP 

call to LMAPCD because the SIP for 

Jefferson County does not apply the PSD 

program to GHG-emitting sources. 

DATES: This action is effective on 

January 14, 2011. 

ADDRESSES: EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2010–0107. 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. 

Cheryl Vetter, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–03), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–4391; fax 

number: (919) 541–5509; e-mail 

address: vetter.cheryl@epa.gov. For 

more information on the LMAPCD or 

Jefferson County, Kentucky, contact Ms. 

Lynorae Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Ms. 

Benjamin’s telephone number is (404) 

562–9040; e-mail address: benjamin.

lynorae@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

The entity affected by this rule is the 

LMAPCD, which is the local permitting 

authority 1 that has jurisdiction in 

Jefferson County, Kentucky. The 

LMAPCD was identified by EPA as not 

having submitted a SIP revision that 

would apply PSD requirements to GHGemitting sources by its SIP submittal 

deadline of January 1, 2011. In the GHG 

PSD SIP call,2 EPA determined that the 

Jefferson County portion of the 

Kentucky SIP is substantially 

inadequate to achieve CAA 

requirements because its PSD programs 

do not apply to GHG-emitting sources. 

EPA established the deadline after the 

LMAPCD indicated that it would not 

object to a deadline of January 1, 2011. 

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.3 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 

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 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. 


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Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 2583 

4The Louisville Metro Air Pollution Control 

District is the local agency that has jurisdiction over 

sources in Jefferson County, Kentucky. 

5Action to Ensure Authority to Issue Permits 

under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan—Proposed rule, 75 FR 

53883 (September 2, 2010). 

6Action 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— 

Proposed rule, 75 FR 53892 (September 2, 2010). 

7Action to Ensure Authority to Issue Permits 

under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan—Final Rule, 75 FR 

82246 (December 30, 2010). 

8Action 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— 

Final Rule, 75 FR 77698 (December 13, 2010). 

B. 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. How is the preamble organized? 

II. Overview of Rulemaking 

III. Final Action and Response to Comments 

A Authority To Promulgate a FIP 

B. Timing of GHG PSD FIP 

C. Substance of GHG PSD FIP 

D. Period for GHG PSD FIP To Remain in 

Place 

E. Primacy of SIP Process 

IV. 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 Act 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

L. Congressional Review Act 

V. Judicial Review 

VI. Statutory Authority 

II. Overview of Rulemaking 

In this rulemaking, EPA is 

establishing a FIP, which we call the 

GHG PSD FIP, or simply, the FIP, to 

apply in Jefferson County, Kentucky 

because the LMAPCD did not submit by 

January 1, 2011, a corrective SIP 

revision to apply their CAA PSD 

program to sources of GHGs in Jefferson 

County, Kentucky.4 This is the deadline 

EPA established after the LMAPCD 

indicated that it would not object to it, 

to ensure that a permitting authority 

would be in place soon after January 2, 

2011, to facilitate issuance of PSD 

permits for construction and 

modification of sources. This action 

does not relate to the rest of Kentucky, 

as the Commonwealth, through the 

Kentucky Energy and Environment 

Cabinet (KEEC), submitted a corrective 

SIP revision to address the remainder of 

Kentucky on December 13, 2010. This 

SIP revision was approved by EPA on 

December 29, 2010 (75 FR 81868). 

This preamble should be read in 

conjunction with the preamble for the 

proposed rulemaking for this action, 

which we call the GHG PSD FIP 

proposal or the FIP proposal; 5 and the 

SIP Call rulemaking that is associated 

with this rulemaking, including (i) the 

proposed SIP Call rulemaking, which 

we call the GHG PSD SIP Call proposal 

or the SIP Call proposal, and which 

accompanied the FIP proposal; 6 (ii) the 

final SIP Call rulemaking, which we call 

the GHG PSD SIP Call or the SIP Call; 

and (iii) the GHG PSD FIP final rule 

which covers seven states other than 

Jefferson County, Kentucky.7

Background information for this 

rulemaking is found in those 

rulemakings and in the rulemakings 

referenced therein and will not be 

reiterated here. 

By notices dated September 2, 2010, 

EPA published as companion actions 

the SIP Call proposal and the FIP 

proposal. In the SIP Call proposal, EPA 

proposed to find that 13 states with 

EPA-approved SIP PSD programs are 

substantially inadequate to meet CAA 

requirements because they do not 

appear to apply PSD requirements to 

GHG-emitting sources. For each of these 

states, EPA proposed to require the state 

(through a SIP call) to revise its SIP as 

necessary to correct such inadequacies. 

In the FIP proposal, EPA proposed a FIP 

to apply in any state that is unable to 

submit, by its deadline, a corrective SIP 

revision to apply the PSD program to 

sources of GHGs. The FIP would 

provide authority to EPA to issue PSD 

permits for construction or modification 

of appropriate GHG sources in the state. 

On December 1, 2010, EPA 

promulgated the GHG PSD SIP Call, and 

EPA published it by notice dated 

December 13, 2010.8 In the SIP call, 

EPA finalized its finding that the SIPs 

of 13 states (comprising 15 state and 

local programs) are substantially 

inadequate to meet CAA requirements 

because they do not apply PSD 

requirements to GHG-emitting sources. 

In addition, EPA finalized a SIP Call for 

each of these states, which required the 

state to revise its SIP as necessary to 

correct such inadequacies. Further, EPA 

established a deadline for each state to 

submit its corrective SIP revision. These 

deadlines, which differed among the 

states, ranged from December 22, 2010, 

to December 1, 2011. The LMAPCD 

requested a SIP deadline of January 1, 

2011. 

In a separate notice, EPA is also 

issuing a finding under CAA section 

110(c)(1)(A) that the LMAPCD ‘‘failed to 

make [the] required submission’’ of the 

corrective SIP call-mandated SIP 

revision for Jefferson County, Kentucky 

by its January 1, 2011 deadline. EPA 

notified the LMAPCD of the finding by 

letter. That letter is located in the docket 

for this rulemaking. 

III. Final Action and Response to 

Comments 

A. Authority To Promulgate a FIP 

In this rulemaking, EPA is finalizing 

the GHG PSD FIP as proposed for 

Jefferson County, Kentucky. This 

rulemaking does not relate to the 

remainder of the Commonwealth as EPA 

has already taken final action to approve 

the Commonwealth’s corrective SIP for 

all areas in Kentucky except for 

Jefferson County. See 75 FR 81868. 

The CAA authority for EPA to 

promulgate a FIP is found in CAA 

section 110(c)(1), which provides— 

The Administrator shall promulgate a 

Federal implementation plan at any time 

within 2 years after the Administrator—(A) 

finds that a State has failed to make a 

required submission * * * unless the State 

corrects the deficiency, and [EPA] approves 

the plan or plan revision, before the 

Administrator promulgates such [FIP]. 

As noted earlier in this preamble, EPA 

is issuing a finding that the LMAPCD, 

through the Commonwealth of 

Kentucky, ‘‘failed to make [the] required 

submission’’ of the corrective SIP Callmandated SIP revision by its January 1, 

2011, deadline. Accordingly, under 

CAA section 110(c)(1), EPA is required 

to promulgate a FIP for Jefferson 

County, Kentucky. It should be noted 

that EPA specifically proposed the FIP 

for Jefferson County, Kentucky. 

We reiterate that the LMAPCD 

indicated to EPA that it preferred that 

EPA promulgate a FIP to take effect soon 

after January 2, 2011—when sources in 

the state become subject to PSD—rather 

than wait to promulgate a FIP until a 

later time. This is because the LMAPCD 

wishes to assure that a permitting 

authority for GHG-emitting sources is in 

place in Jefferson County, Kentucky 

should a permit be sought that requires 

consideration of GHGs. The LMAPCD 


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2584 Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 

9On December 30, 2010, EPA published a notice 

to promulgate a FIP for seven states that received 

a SIP submittal deadline of December 22, 2010. 

Based on information received from each of these 

states during the public comment period, they 

indicated that they would not object to this early 

deadline for allowing a FIP to be put in place. These 

seven states are: (1) Arizona: Both Pinal County and 

Rest of State (excluding Maricopa County, Pima 

County, and Indian Country); (2) Arkansas; (3) 

Florida; (4) Idaho; (5) Kansas; (6) Oregon; and (7) 

Wyoming. 

made this choice by indicating that they 

did not object to EPA establishing a SIP 

submittal date of January 1, 2011, when 

EPA made clear in the proposed SIP 

Call and FIP that if the state did not 

submit the required SIP revision by that 

date, then EPA would promulgate the 

FIP the next day. 75 FR at 53904/2 

(proposed SIP Call); id. at 53889/2 

(proposed FIP). Although the LMAPCD 

requested a later SIP deadline than the 

earliest date (i.e., December 22, 2010), 

they believe that this will only mean a 

short delay in the availability of a 

permitting authority for GHG-emitting 

sources in their state, and that delay 

will not adversely affect their sources. 

In this rulemaking, EPA is not taking 

final action to promulgate a FIP for any 

of the other states beside Jefferson 

County, Kentucky which EPA included 

in the FIP proposal. This is because 

each of the other states falls into one of 

the following three categories: (1) EPA 

did not finalize the SIP call for this 

state; (2) EPA has already issued a FIP 

for this state; 9 or (3) EPA did finalize 

the SIP call but established a SIP 

submittal deadline that has not yet 

arrived. As EPA noted in the GHG FIP 

signed on December 23, 2010, it 

continues to be EPA’s intent that if any 

of these other states does not submit the 

required SIP revision by its deadline, 

then EPA will immediately issue a 

finding of failure to submit a required 

SIP submission and immediately 

promulgate a GHG PSD FIP for that 

state. 

In comments received, some 

commenters stated, ‘‘Remarkably, EPA 

states that it will also directly 

promulgate a SIP call and FIP for any 

states it has inadvertently omitted from 

its notice of proposed rulemaking.’’ 

Although the commenters do not 

elaborate upon this statement, they 

seem to imply that it would be improper 

for EPA to finalize a FIP for such states 

because we did not provide adequate 

notice and opportunity for comment. 

This comment is not relevant to 

Jefferson County, Kentucky, as the 

proposed SIP call and FIP explicitly 

name Jefferson County as an area that 

may be included in the final SIP Call 

and FIP. Furthermore, we disagree with 

the commenters, and have discussed 

and responded to this comment in great 

detail in the SIP Call, 75 FR at 77715– 

16, and the December 30, 2010 FIP, 75 

FR 82248. 

B. Timing of GHG PSD FIP 

In the GHG PSD FIP proposal, we 

stated: 

If any of the states for which we issue the 

SIP Call 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 promulgate a FIP 

for the state. 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 intend to take these 

actions immediately in order to minimize 

any period of time during which largeremitting sources may be under an obligation 

to obtain PSD permits for their GHGs when 

they construct or modify, but no permitting 

authority is authorized to issue those 

permits. 

75 FR at 53,889/2. 

In this final rulemaking, we are 

proceeding in the same manner that we 

proposed, and for the same reasons. 

That is, we are exercising our discretion 

to promulgate the FIP for Jefferson 

County ‘‘immediately in order to 

minimize any period of time during 

which larger-emitting sources may be 

under an obligation to obtain PSD 

permits for their GHGs when they 

construct or modify, but no permitting 

authority is authorized to issue those 

permits.’’ 75 FR at 53889/2. We believe 

that acting immediately is in the best 

interests of the states and the regulated 

community. 

EPA received comments that the 

process EPA has employed in this 

action, which was to propose the FIP as 

a companion rule to the proposed SIP 

call, and then to finalize the FIP 

immediately after making a finding that 

a state has not submitted the required 

SIP revision by its deadline, ‘‘is not how 

CAA section 110 works or how Congress 

intended it to work.’’ The commenter 

added that— 

[O]nly after a state has * * * failed to 

[submit a SIP revision] after an applicable 

period as specified in the CAA or EPA 

regulations * * * and after EPA has made a 

determination that the SIP revision is 

deficient in one or more respects, may the 

Agency step in to propose a FIP rule. And 

only after taking that step could EPA then 

proceed * * * [to take final action on the 

FIP.] Notwithstanding EPA’s strained and 

out-of-context emphasis on the isolated 

sentence fragment, ‘‘at any time within,’’ the 

very fact that the CAA affords EPA up to two 

full years in which to complete the 

cooperative task of considering whether a FIP 

is needed and how such a plan should be 

fashioned, and the corollary fact that the Act 

does not mandate any federal takeover in less 

than two years, militate against EPA’s 

approach here to FIP rulemaking. In 

particular, those facts undermine EPA’s 

assumption that it need not take the time to 

develop a proposed plan specifically directed 

at remedying identified deficiencies in a 

given state submission, and to give states and 

the regulated community a meaningful 

opportunity to comment on a proposed FIP 

that has been specifically developed to 

address the individual needs and 

circumstances of such a state. (Emphasis in 

original.) 

EPA disagrees with these comments. 

As we stated in the proposed rule, CAA 

section 110(c)(1)(A) authorizes EPA to 

promulgate a FIP ‘‘at any time within 2 

years after’’ finding a failure to submit 

a required SIP revision. As we did in the 

seven-state FIP issued on December 30, 

2010, here we are promulgating the FIP 

immediately because we wish to 

minimize any disruption in permitting 

for the larger GHG-emitting sources and 

we are doing so after consultation with 

the affected state. The LMAPCD told 

EPA that they would not object to the 

promulgation of a FIP at the earliest 

possible date after January 1, 2011. 

Without the FIP, Jefferson County, 

Kentucky would be without an 

approved program to issue PSD permits 

for GHG-emitting sources until the 

LMAPCD, through the Commonwealth 

of Kentucky, submits, and EPA 

approves, a SIP revision. The FIP 

provides sources in Jefferson County, 

Kentucky with an immediate 

mechanism to obtain required permits 

for construction and modification until 

the revised SIP is approved. 

As for commenters’ analysis of CAA 

section 110(c), that provision, by its 

terms, imposes no constraints on when 

EPA may propose a FIP. This stands in 

contrast to other CAA provisions that do 

impose requirements for the timing of 

proposals. See CAA sections 

109(a)(1)(A), 111(b)(1)(B). In light of the 

lack of constraints in CAA section 

110(c), EPA was free to propose the FIP 

at the same time that EPA proposed the 

SIP call. We do not agree that the overall 

construct of CAA section 110 imposes 

the implicit constraints that the 

commenter identifies. 

Instead, what is important is that for 

each of the 13 states for which EPA 

specifically proposed the FIP, which 

were the same as the ones for which 

EPA proposed the SIP Call, the public 

had adequate notice of the 

circumstances under which EPA 

proposed that the state would become 

subject to the FIP. Those circumstances 

were that if EPA finalized the SIP Call, 

as proposed, for the state, and if the 

state did not submit a SIP revision 


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10The Response to Comments document for the 

seven-state FIP can be found in the docket for this 

rulemaking at EPA–HQ–OAR–2010–0107–0157. 

applying its PSD program to GHGemitting sources by the deadline, EPA 

would establish a FIP for that state. In 

fact, EPA did finalize the SIP call for all 

but one of those 13 states and is now 

finalizing the FIP for Jefferson County, 

Kentucky. Further, EPA received 

comments on the proposed FIP from 

several states and/or industries located 

in states for which EPA proposed the 

FIP, which indicates that the FIP 

proposal provided adequate notice. See, 

e.g., comments identified in the 

rulemaking docket as document 

numbers 0084.1 (Texas), 0055.1 

(Arkansas), 0066.1 (Texas Industry 

Project), and 0109.1 (National Mining 

Association). 

Moreover, EPA was clear that for each 

state subject to the SIP Call that did not 

submit the required SIP revision by its 

SIP submittal deadline, EPA would 

immediately make a finding of failure to 

submit and immediately promulgate a 

FIP. EPA explained that this approach 

was needed to assure the availability of 

a permitting authority for sources in the 

state. 

Finally, each of the states and the 

public in general had adequate notice of 

the terms of the FIP as it would apply 

in any state. Specifically, EPA indicated 

that the FIP would apply PSD to GHGemitting sources at the Tailoring Rule 

thresholds. 

Therefore, the FIP proposal was clear 

as to the circumstances under which 

EPA proposed to promulgate a FIP, the 

timing for the FIP, and the terms of the 

FIP. Moreover, each of those three 

things applied to each state that would 

become subject to the SIP Call. 

Accordingly, the FIP proposal did, in 

fact, ‘‘give states and the regulated 

community a meaningful opportunity to 

comment on a proposed FIP that has 

been specifically developed to address 

the individual needs and circumstances 

of such a state,’’ as the commenter 

argues the FIP proposal needed to do. 

Several commenters raised an 

additional objection, which was that in 

their view, EPA failed to comply with 

the requirements of CAA section 

307(d)(3) that (i) the proposed FIP 

include a summary of ‘‘the factual data 

on which the proposed rule is based’’ 

and ‘‘the major legal interpretations and 

policy considerations underlying the 

proposed rule’’; and (ii) ‘‘[a]ll data, 

information, and documents * * * on 

which the proposed rule relies shall be 

included in the docket on the date of 

publication of the proposed rule.’’ 

(Emphasis added by one of these 

commenters.) One of these commenters 

explained that (a) in the SIP Call 

proposal, EPA had made a detailed 

request that states provide information 

as to whether their state law authorized 

the application of PSD to GHG-emitting 

sources; (b) this detailed request 

demonstrated that the proposal did not 

establish the legal basis for the SIP Call; 

and (c) as a result, the FIP proposal did 

not include ‘‘information that is 

essential to determining whether a FIP 

for a given state is even appropriate and 

justified.’’ (Emphasis in original.) This 

commenter added— 

Only after EPA has received such 

information, and then taken the necessary 

time to evaluate the information and to make 

judgments as to whether or not a given state 

has authority under its SIP and other 

elements of state law to regulate GHGs under 

the PSD program—i.e., the steps EPA would 

have to take under CAA section 307(d)(3) to 

provide to the public a meaningful 

‘‘summary’’ of ‘‘the factual data on which the 

proposed rule is based’’ and ‘‘the major legal 

interpretations and policy considerations 

underlying the proposed rule’’—may EPA 

propose a FIP for any state that has been 

determined to lack that authority. (Emphasis 

in original.) 

We disagree with this comment. The 

preamble for the FIP proposal included 

the CAA section 307(d)(3)-required 

‘‘summary’’ of the factual basis and legal 

interpretations. To reiterate, EPA 

identified the states for which EPA was 

proposing the FIP, 75 FR at 53886 and 

table II–1 and 53889/1, and added that 

EPA would subject other states to the 

FIP if they, too, became subject to the 

SIP call, id. 53886 and table II–2 and 

53889/2; described the timing for the 

FIP, id. 53889/2–3; described the 

substance of the FIP, id. 53889/3– 

53890/1; and explained that CAA 

section 110(c)(1) provided the legal 

basis, id. 53889/2. The purpose of the 

CAA section 307(d)(3) requirements is 

to provide the public with adequate 

notice, and these statements did so by 

making clear the circumstances under 

which EPA was proposing to 

promulgate a FIP and the timing and 

substance of the proposed FIP. 

It is true that for any state, whether 

and when EPA would finalize the FIP 

for any state depended on other factors, 

including whether EPA would finalize 

the SIP Call for that state, what deadline 

EPA would establish, and whether the 

state would submit its required 

corrective SIP revision by that deadline. 

But the FIP proposal put the public on 

notice, with sufficient specificity, as to 

EPA’s plan. In any event, any FIP is 

necessarily dependent on other factors, 

including state actions, including 

submission of a revised SIP. Most 

broadly, commenters’ approach—which 

is that EPA cannot propose a FIP in 

concert with a SIP call, but instead must 

proceed in seriatim by completing the 

SIP call first and then proposing the 

FIP—would result in lengthy delays in 

the establishment of a permitting 

authority to process GHG-emitting 

sources’ PSD permit applications. As a 

result, commenters’ approach could 

well cause delays in these sources’ 

ability to undertake construction and 

modification projects. 

We included related comments and 

responses in the Response to Comments 

document for the seven-state FIP issued 

on December 30, 2010,10 which is 

applicable to this rule as well. 

C. Substance of GHG PSD FIP 

In the FIP proposal, we stated: 

The proposed FIP constitutes the EPA 

regulations found in 40 CFR 52.21, including 

the PSD applicability provisions, with a 

limitation to assure that, strictly for purposes 

of this rulemaking, the FIP applies only to 

GHGs. Under the PSD applicability 

provisions in 40 CFR 52.21(b)(50), the PSD 

program applies to sources that emit the 

requisite amounts of any ‘‘regulated NSR 

pollutant[s],’’ including any air pollutant 

‘‘subject to regulation.’’ However, in states for 

which EPA would promulgate a FIP to apply 

PSD to GHG-emitting pollutants, the 

approved SIP already applies PSD to other air 

pollutants. To appropriately limit the scope 

of the FIP, EPA proposes in this action to 

amend 40 CFR 52.21(b)(50) to limit the 

applicability provision to GHGs. 

We propose this FIP because it would, to 

the greatest extent possible, mirror EPA 

regulations (as well as those of most of the 

states). In addition, this FIP would readily 

incorporate 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— 

including Steps 1 and 2 of the phase-in as 

promulgated in the Tailoring Rule—can be 

most readily accomplished through 

interpretation of the terms in the definition 

‘‘regulated NSR pollutant,’’ including the 

term ‘‘subject to regulation.’’ 

In accordance with the Tailoring Rule, 

* * * the FIP would apply in Step 1 of the 

phase-in approach only to ‘‘anyway sources’’ 

(that is, sources undertaking construction or 

modification projects that are required to 

apply for PSD permits anyway due to their 

non-GHG emissions and that emit GHGs in 

the amount of at least 75,000 tpy on a CO2e 

basis) and would apply in Step 2 of the 

phase-in approach to both ‘‘anyway sources’’ 

and sources that meet the 100,000/75,000-tpy 

threshold (that is, (i) sources that newly 

construct and would not be subject to PSD 

on account of their non-GHG emissions, but 

that emit GHGs in the amount of at least 

100,000 tpy CO2e, and (ii) existing sources 

that emit GHGs in the amount of at least 

100,000 tpy CO2e, that undertake 

modifications that would not trigger PSD on 


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the basis of their non-GHG emissions, but 

that increase GHGs by at least 75,000 tpy 

CO2e). 

Under the FIP, with respect to permits for 

‘‘anyway sources,’’ EPA will be responsible 

for acting on permit applications for only the 

GHG portion of the permit, and the state will 

retain responsibility for the rest of the permit. 

Likewise, with respect to permits for sources 

that meet the 100,000/75,000-tpy threshold, 

our preferred approach—for reasons of 

consistency—is that EPA will be responsible 

for acting on permit applications for only the 

GHG portion of the permit, that the state 

permitting authorities will be responsible for 

the non-GHG portion of the permit, and EPA 

will coordinate with the state permitting 

authority as needed in order to fully cover 

any non-GHG emissions that, for example, 

are subject to BACT because they exceed the 

significance levels. We recognize that 

questions may arise as to whether the state 

permitting authorities have authority to 

permit non-GHG emissions; as a result, we 

solicit comment on whether EPA should also 

be the permitting authority for the non-GHG 

portion of the permit for these latter sources. 

We propose that the FIP consist of the 

regulatory provisions included in 40 CFR 

52.21, except that the applicability provision 

would include a limitation so that it applies 

for purposes of this rulemaking only to 

GHGs. 

75 FR 53889/3 to 53,890/1 

We are finalizing the FIP as we 

described it in the proposal, for the 

same reasons that we indicated in the 

proposal, all as quoted earlier in this 

preamble. 

State, industry, and environmental 

commenters questioned how having 

EPA issue the GHG portions of a permit 

while allowing states under a FIP to 

continue to be responsible for issuing 

the non-GHG portions of a PSD permit 

will work in practice. Commenters 

raised concerns about the potential for 

a source to be ‘‘faced with conflicting 

requirements and the need to mediate 

among permit engineers making BACT 

decisions.’’ 

We appreciate the commenters’ 

concern. We well recognize that 

dividing permitting responsibilities 

between two authorities—EPA for GHGs 

and the state for all other pollutants— 

will require close coordination between 

the two authorities to avoid duplication, 

conflicting determinations, and delays. 

We note that this situation is not 

without precedent. In many instances in 

the past, EPA has been the PSD 

permitting authority but the state has 

accepted a delegation for parts of the 

PSD program, so that a source has had 

to go to both the state and EPA for its 

permit. In addition, all nonattainment 

areas in the nation are in attainment or 

are unclassifiable for at least one 

pollutant, so that every nonattainment 

area is also a PSD area. In some of these 

areas, the state is the permitting 

authority for nonattainment new source 

review (NSR) and EPA is the permitting 

authority for PSD. As a result, there are 

instances in which a new or modifying 

source in such an area has needed a 

nonattainment NSR permit from the 

state and a PSD permit from EPA. 

EPA is working expeditiously to 

develop recommended approaches for 

EPA regions and affected states— 

including Jefferson County, Kentucky— 

to use in addressing the shared 

responsibility of issuing PSD permits for 

GHG-emitting sources. In addition, as 

discussed below, we intend for the GHG 

PSD FIP to remain in place only as long 

as necessary for states’ SIPs to be 

approved. Moreover, in this interim 

period, we intend to delegate permitting 

responsibility to those states that are 

able to implement it and that request it. 

States that request and receive a 

delegation will be responsible for 

issuing both the GHG part and the nonGHG part of the permit, and that will 

moot commenters’ concerns about split 

permitting. 

D. Period for GHG PSD FIP To Remain 

in Place 

In the FIP proposal, we stated our 

intention to leave any promulgated FIP 

in place for as short a period as possible, 

and to process any corrective SIP 

revision submitted by the state to fulfill 

the requirements of the SIP call as 

expeditiously as possible. Specifically, 

we stated: 

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. Upon request of the state, 

we will parallel-process the SIP submittal. 

That is, if the state submits to us the draft SIP 

submittal for which the state intends to hold 

a hearing, we will propose the draft SIP 

submittal for approval and open a comment 

period during the same time as the state 

hearing. If the SIP submittal that the state 

ultimately submits to us is substantially 

similar to the draft SIP submittal, we will 

proceed to take final action without a further 

proposal or comment period. If we approve 

such a SIP revision, we will at the same time 

rescind the FIP. 

75 FR 53889/2–3. 

We continue to have these same 

intentions. Thus, we reaffirm our 

intention to leave this GHG PSD FIP in 

place only as long as is necessary for the 

LMAPCD to submit and for EPA to 

approve a SIP revision that includes 

PSD permitting for GHG-emitting 

sources. As discussed in more detail 

later in this preamble, EPA continues to 

believe that the states should remain the 

primary permitting authority. 

E. Primacy of SIP Process 

In the FIP proposal we stated, 

This proposal [to promulgate a FIP] 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 GHGemitting 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 FIP and the companion SIP 

Call 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 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 FIP and 

the companion SIP Call 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 the SIP Call rulemaking, EPA 

proposes that states may choose the deadline 

they consider reasonable for submission of 


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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 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. 

75 FR at 53890/1–2. 

In this rulemaking, we continue to 

have the same intentions and for the 

same reasons. Thus, we continue to 

believe that this action is necessary to 

ensure that sources in states with 

inadequate SIPs can obtain the 

necessary PSD permits for their GHG 

emissions. We have worked closely with 

states to establish reasonable deadlines 

for submitting revised SIPs and are 

finalizing this FIP based on the deadline 

agreed to by the LMAPCD. We will 

continue to work with states, including 

the LMAPCD, as we have done 

throughout the rulemaking process, to 

assist in development and expedite 

review of revised SIPs. In the meantime, 

however, this FIP is necessary for 

Jefferson County, Kentucky in order to 

provide a permitting authority until an 

adequate SIP is submitted and 

approved. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under the EO. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. 

However, the Office of Management and 

Budget (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. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this notice on small entities, small 

entity is defined as: (1) A small business 

that is a small industrial entity as 

defined in the U.S. Small Business 

Administration (SBA) size standards 

(see 13 CFR 121.201); (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

Although this rule would 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 rule on small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This final rule will not impose any 

requirements on small entities. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA, 2 U.S.C. 1531– 

1538) for state, local or tribal 

governments or the private section. The 

action imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector. This action merely 

prescribes EPA’s action for an area that 

did not meet its existing obligation for 

PSD SIP submittal. Thus, this rule is not 

subject to the requirements of sections 

202 or 205 of UMRA. 

This action 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. This 

action merely prescribes EPA’s action 

for an area that did not meet its existing 

obligation for PSD SIP submittal. 

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 an 

area that did not meet its existing 

obligation for GHG 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 solicited comment on the 

proposal for this action 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). This action does not impose a FIP 

in any tribal area. Thus, Executive Order 

13175 does not apply to this action. 

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 an area that did not 

meet its 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 an area that did not meet its 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 

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 


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bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This rulemaking does not involve 

technical standards. Therefore, EPA did 

not consider 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 United States. 

EPA has determined that this final 

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 rule merely 

prescribes EPA’s action for an area that 

did not meet its existing obligation for 

PSD SIP submittal. 

K. Determination Under Section 307(d) 

Pursuant to section 307(d)(1)(B) of the 

CAA, this action is subject to the 

provisions of section 307(d). Section 

307(d)(1)(B) provides that the provisions 

of section 307(d) apply to ‘‘the 

promulgation or revision of an 

implementation plan by the 

Administrator under section 110(c) of 

this Act.’’ 

L. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action does not constitute a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

Therefore, this action will be effective 

January 14, 2011. 

V. Judicial Review 

Section 307(b)(1) of the CAA specifies 

which Federal Courts of Appeal have 

jurisdiction to hear petitions for review 

of which final actions by EPA. This 

section provides, in part, that petitions 

for review must be filed in the Court of 

Appeals for the District of Columbia 

Circuit: (i) When the agency action 

consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

taken, by the Administrator,’’ or (ii) 

when such action is locally or regionally 

applicable, if ‘‘such action is based on a 

determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

This rule is nationally applicable 

under CAA section 307(b)(1). It is 

merely the next step in the suite of rules 

addressing inadequacies in SIPs related 

to 13 states’ failure to apply PSD to 

GHG-emitting sources as the SIP Call, 

the Finding of Failure to Submit issued 

on December 29, 2010, and the FIP rule 

issued on December 30, 2010. In 

particular, this rule simply follows-up 

on the FIP rule issued on December 30, 

2010, which affected seven states that 

chose the earliest possible deadline, and 

takes the identical next step for Jefferson 

County now that this area, too, has 

missed its SIP Call deadline and is 

subject to a Finding of Failure to 

Submit, and FIP. The circumstances that 

have led to this rulemaking are national 

in scope and are substantially the same 

for Jefferson County, Kentucky as they 

were for each of the seven affected states 

in the earlier FIP rule issued on 

December 30, 2010. They include EPA’s 

promulgation of nationally applicable 

GHG requirements that, in conjunction 

with the operation of the CAA PSD 

provisions, have resulted in GHGemitting sources becoming subject to 

PSD; as well as EPA’s finding of 

substantial SIP inadequacy, imposition 

of a SIP call, and establishment of a 

deadline for SIP submittal. Moreover, in 

this rule, EPA is applying the same 

uniform principles for promulgating the 

FIP for Jefferson County, Kentucky as it 

did for each of the seven earlier-affected 

states, concerning, e.g., timing (that is, 

that EPA is promulgating the FIP for 

each affected state immediately) and 

scope (that is, that EPA is applying the 

FIP for GHG-emitting sources). The FIP 

for Jefferson County has substantially 

the same, if not identical, terms as the 

FIP for each affected state in the 

December 30, 2010 rule. This 

rulemaking action is supported by the 

same single administrative record as the 

earlier December 30, 2010 FIP rule, and 

does not involve factual questions 

unique to Jefferson County, Kentucky or 

the LMAPCD. In addition, as stated 

above, this rule is part of a single 

approach to correcting certain 

inadequacies in SIPs in multiple States 

across the country, and in several 

judicial circuits. 

For similar reasons, this rule is based 

on determinations of nationwide scope 

or effect. For Jefferson County, 

Kentucky, EPA is determining that it is 

appropriate to promulgate the FIP 

immediately and to apply it to GHGemitting sources, but not other sources, 

in the same way it made the same 

determination for the seven other states 

in the earlier December 30, 2010 FIP 

rule. These determinations are the same 

for each of the states. The provisions of 

this FIP are also substantially the same, 

if not identical, to those for the seven 

earlier affected states. Moreover, EPA is 

making these determinations and 

promulgating this action within the 

context of nationwide rulemakings and 

interpretation of the applicable CAA 

provisions, as noted above. 

Thus, under section 307(b)(1) of the 

Act, judicial review of this final action 

is available by filing of a petition for 

review in the U.S. Court of Appeals for 

the District of Columbia Circuit by 

March 15, 2011. Any such judicial 

review is limited to only those 

objections that were raised with 

reasonable specificity in timely 

comments. Under section 307(b)(2) of 

the Act, the requirements of this final 

action may not be challenged later in 

civil or criminal proceedings brought by 

us to enforce these requirements. 

VI. 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)). 

List of Subjects in 40 CFR Part 52 

Air pollution control, Carbon dioxide, 

Carbon dioxide equivalents, Carbon 

monoxide, Environmental protection, 

Greenhouse gases, Hydrofluorocarbons, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Methane, Nitrogen dioxide, Nitrous 

oxide, Ozone, Particulate matter, 

Perfluorocarbons, Reporting and 

recordkeeping requirements, Sulfur 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Rules and Regulations 2589 

hexafluoride, Sulfur oxides, Volatile 

organic compounds. 

Dated: January 10, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is revised 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 amended by 

revising paragraph (b)(6) and adding 

paragraph (b)(7) 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? 

* * * * * 

(b) * * * 

(6) Wyoming; 

(7) Jefferson County, Kentucky. 

* * * * * 

[FR Doc. 2011–768 Filed 1–13–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–0041–201058(c); 

FRL–9250–4] 

Approval and Promulgation of 

Implementation Plans; Mississippi: 

Prevention of Significant Deterioration; 

Nitrogen Oxides as a Precursor to 

Ozone; Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; correction and 

clarification. 

SUMMARY: EPA is publishing today’s 

notice to correct the regulatory table in 

the Code of Federal Regulations for 

Mississippi’s state implementation plan 

(SIP) to clarify that the version of 

Mississippi’s Prevention of Significant 

Deterioration (PSD) regulations 

incorporated into Mississippi’s SIP on 

and after the January 19, 2011, effective 

date of the SIP revision approved by 

EPA on December 20, 2010, will be the 

version promulgated by the State on 

October 28, 2010 (state-effective date 

December 1, 2010), and approved by 

EPA on December 29, 2010. This 

version of Mississippi’s PSD regulations 

includes both a SIP revision approved 

by EPA on December 20, 2010, and a 

SIP revision approved by EPA on 

December 29, 2010. No new SIP 

revisions are approved by today’s 

notice. Today’s notice clarifies that the 

revision identified in EPA’s December 

20, 2010, final action (adding nitrogen 

oxides (NOX) as a precursor to ozone for 

PSD purposes) was included in the PSD 

rules that were incorporated into the SIP 

by EPA’s December 29, 2010, final 

action regarding greenhouse gases 

(GHGs). 

DATES: This action is effective January 

19, 2011. 

ADDRESSES: Copies of the 

documentation used in the action being 

corrected are available for inspection 

during normal business hours at the 

following location: U.S. Environmental 

Protection Agency, Region 4, 61 Forsyth 

Street, SW., Atlanta, Georgia 30303– 

8960. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lynorae Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Ms. 

Benjamin can be reached at 404–562– 

9040, or via electronic mail at 

benjamin.lynorae@epa.gov. 

SUPPLEMENTARY INFORMATION: On 

November 28, 2007, Mississippi 

submitted a SIP revision to EPA to 

revise its SIP-approved PSD permitting 

regulations to address the requirements 

of the Ozone Implementation New 

Source Review Update to include the 

consideration of NOX as an ozone 

precursor. Specifically, Mississippi’s 

November 28, 2007, SIP revision made 

changes to Mississippi’s air quality 

regulations, APC–S–5—Regulations for 

Prevention of Significant Deterioration, 

to incorporate by reference the 

provisions at 40 CFR 52.21 as amended 

and promulgated as of June 15, 2007. On 

December 20, 2010, EPA published a 

final rule approving Mississippi’s 

November 28, 2007, SIP revision 

(following a proposal and receiving no 

comments). See 75 FR 78300. According 

to the December 20, 2010, action, the 

effective date of EPA’s December 20, 

2010, final rule approving Mississippi’s 

November 28, 2007, SIP revision is 

January 19, 2011. The January 19, 2011, 

effective date is now being corrected 

and clarified in today’s action. This is 

necessary due to EPA taking final action 

on two SIP revisions so closely in time 

and to avoid any confusion regarding 

which SIP rules are in effect in 

Mississippi. 

On December 9, 2010, Mississippi 

submitted another SIP revision to EPA 

to revise its SIP-approved PSD 

permitting regulations to establish 

appropriate thresholds for determining 

which new stationary sources and 

modification projects become subject to 

Mississippi’s PSD permitting 

requirements for their GHG emissions. 

Specifically, Mississippi’s December 9, 

2010, SIP revision made further changes 

to Mississippi’s air quality regulations, 

APC–S–5—Regulations for Prevention 

of Significant Deterioration, to 

incorporate by reference the provisions 

at 40 CFR 52.21 as amended and 

promulgated as of September 13, 2010. 

EPA published a final rule approving 

Mississippi’s December 9, 2010, SIP 

revision on December 29, 2010, and 

used the ‘‘good cause’’ clause to make 

the effective date of that final EPA 

action January 2, 2011. See 75 FR 81858. 

The Mississippi rules at issue in EPA’s 

December 29, 2010, final action and 

EPA’s December 20, 2010, final action 

were different versions of the same 

rules—thus resulting in potentially 

conflicting effective dates. In today’s 

action, EPA is clarifying that both 

actions are final and that the rules in 

effect per the December 29, 2010, action 

are the rules that are approved into 

Mississippi’s SIP and that are in effect 

in Mississippi. 

To clarify the rules in the SIP, as part 

of today’s action, EPA is correcting the 

regulatory table that identifies 

Mississippi’s SIP to clarify which 

version of Mississippi’s air quality 

regulations related to PSD permitting 

requirements will be in the SIP on and 

after January 19, 2011. Specifically, EPA 

is clarifying that it is not EPA’s intent 

to supersede EPA’s approval of 

Mississippi’s December 9, 2010, SIP 

revision, with EPA’s approval of 

Mississippi’s November 28, 2007, SIP 

revision. Rather, the version of 

Mississippi’s PSD regulations 

incorporated into Mississippi’s SIP on 

and after the January 19, 2011, effective 

date of the SIP revisions approved by 

EPA on December 20, 2010, will be the 

version promulgated by the State on 

October 28, 2010 (state-effective date 

December 1, 2010), with the exception 

of certain language identified in EPA’s 

December 29, 2010, notice. This version 

of Mississippi’s PSD regulations 

includes both the SIP revision approved 

by EPA on December 20, 2010, and the 

SIP revision approved by EPA on 

December 29, 2010. No new SIP 

revisions are approved by today’s 

action—this is simply a correction and 

clarification due to potentially 


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