Monday, 

December 13, 2010 

Part II 

Environmental 

Protection Agency 

40 CFR Part 52 

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; Final Rule 


emcdonald on DSK2BSOYB1PROD with RULES2
77698 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

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

rulemaking to collectively mean states and local 

permitting authorities. 

2Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 

31514 (June 3, 2010). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0107; FRL–9236–3] 

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: Final rule. 

SUMMARY: The EPA is issuing a finding 

that the EPA-approved state 

implementation plans (SIP) of 13 states 

(comprising 15 state and local programs) 

are substantially inadequate to meet 

Clean Air Act (CAA) requirements 

because they do not apply Prevention of 

Significant Deterioration (PSD) 

requirements to greenhouse gas (GHG)- 

emitting sources. In addition, EPA is 

issuing a ‘‘SIP call’’ for each of these 

states, which requires the state to revise 

its SIP as necessary to correct such 

inadequacies. Further, EPA is 

establishing a deadline for each state to 

submit its corrective SIP revision. These 

deadlines, which differ among the 

states, range from December 22, 2010, to 

December 1, 2011. 

DATES: This action is effective on 

December 13, 2010. The deadline for 

each state to submit its corrective SIP 

revision is listed in table IV–1, ‘‘SIP Call 

States and SIP Submittal Deadlines’’ in 

the SUPPLEMENTARY INFORMATION section 

of this rule. 

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. 

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. 

For information related to a specific 

state, local, or tribal permitting 

authority, 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 Cox, 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 .............. Lynorae Benjamin, Chief, Regulatory Development Section, Air, Pesticides and 

Toxics Management Division, 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. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities affected by this rule include 

state and local permitting authorities.1

In this rule, EPA finds that any state’s 

SIP-approved PSD applicability 

provisions that do not apply the PSD 

program to GHG-emitting sources are 

substantially inadequate to meet CAA 

requirements, under CAA section 

110(k)(5), and such states will be 

affected by this rule. For example, if a 

state’s PSD regulation identifies its 

regulated New Source Review (NSR) 

pollutants by specifically listing each 

individual pollutant and the list omits 

GHGs, then the regulation is 

substantially inadequate. 

Entities 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 a GHG PSD rule 

that EPA recently promulgated, which 


emcdonald on DSK2BSOYB1PROD with RULES2
Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77699 

2Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 

31514 (June 3, 2010). 

3Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 

31514 (June 3, 2010). 

we refer to as the Tailoring Rule.2 This 

independent obligation on sources is 

specific to PSD and derives from CAA 

section 165(a). The majority of entities 

affected by this action are 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. 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 Final Rule 

III. Background 

A. CAA and Regulatory Context 

1. SIP PSD Requirements 

2. Recent EPA Regulatory Action 

Concerning PSD Requirements for GHGemitting Sources 

3. SIP Inadequacy and Corrective Action 

4. State PSD SIPs 

B. Proposed Action 

1. Finding of Substantial Inadequacy and 

SIP Call 

2. Corrective SIP Revision 

IV. Final Action and Response to Comments 

A. Response to Comments 

B. Finding of Substantial Inadequacy and 

SIP Call 

1. Overall Basis 

2. State-Specific Actions 

C. Requirements for Corrective SIP 

Revision 

1. Application of PSD Program to GHGEmitting Sources 

2. Definition and Calculation of Amount of 

GHGs 

3. Thresholds 

D. Response to Procedural and Other 

Comments 

1. Approved SIP PSD Programs That Apply 

to GHG Sources 

2. Opportunity for Notice and Comment 

3. Federal Implementation Plan 

V. SIP Submittals 

A. EPA Action: Findings of Failure To 

Submit and Promulgation of FIPs; 

Process for Action on Submitted SIPs 

1. Actions on SIP Submittals 

2. Findings of Failure To Submit and 

Promulgation of FIPs 

3. Rescission of the FIP 

B. Streamlining the State Process for SIP 

Development and Submittal 

C. Primacy of the SIP Process 

D. Effective Date 

VI. 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 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

VII. Judicial Review 

VIII. Statutory Authority 

II. Overview of Final Rule 

This rulemaking is related to four 

distinct GHG-related actions recently 

taken by EPA. Some of these actions, in 

conjunction with the operation of the 

applicable CAA provisions, will require 

stationary sources that emit large 

amounts of GHGs to obtain a PSD 

permit before they construct or modify, 

beginning January 2, 2011. In one of 

these actions, which we call the 

Tailoring Rule, EPA limited the 

applicability of PSD to GHG-emitting 

sources at or above specified 

thresholds.3

Most states include EPA-approved 

PSD programs in their state 

implementation plans (SIPs), and, as a 

result, they act as the permitting 


emcdonald on DSK2BSOYB1PROD with RULES2
77700 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

4 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

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

authority. Most of these states’ PSD 

programs apply to GHG-emitting 

sources, and through a separate 

regulatory action, EPA and these states 

are now taking steps to limit the 

applicability of PSD to GHG-emitting 

sources at or above the Tailoring Rule 

thresholds. However, 13 states have 

SIPs with EPA-approved PSD programs 

that do not apply PSD to GHG-emitting 

sources, and it is those states that are 

the subject of this rulemaking. 

In this rulemaking, EPA is (i) issuing 

a finding of substantial inadequacy for 

13 states because their EPA-approved 

SIP PSD programs do not apply to GHGemitting sources, (ii) issuing a 

requirement, which we refer to as a SIP 

call, that these states submit a corrective 

SIP revision to assure that their PSD 

programs will apply to GHG-emitting 

sources, and (iii) establishing the 

deadline by which each of these states 

must submit its corrective SIP revision, 

which differs among the various states 

and ranges from December 22, 2010, to 

December 1, 2011. Each of these actions 

is authorized under CAA section 

110(k)(5). The 13 states (some of which 

include at least one local permitting 

agency) are: Arizona; Arkansas; 

California; Connecticut; Florida; Idaho; 

Kansas; Kentucky; Nebraska; Nevada; 

Oregon; Texas; and Wyoming. 

If a state for which we are finalizing 

a SIP call in this action does not submit 

its corrective SIP revision by its 

deadline, EPA intends to immediately 

issue to the state a finding of failure to 

submit a required SIP revision and also 

immediately promulgate a federal 

implementation plan (FIP) for the state, 

under CAA section 110(c)(1)(A). EPA 

proposed this SIP call and the FIP by 

separate notices dated September 2, 

2010. ‘‘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—Proposed Rule,’’ 75 FR 53892; 

‘‘Action 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. 

This SIP call is important because 

without it, large GHG-emitting sources 

in these states may be unable to obtain 

a PSD permit for their GHG emissions 

and therefore may face delays in 

undertaking construction or 

modification projects. This is because 

without the further action by the states 

or EPA that the SIP call is designed to 

lead to, sources that emit or plan to emit 

large amounts of GHGs will, starting 

January 2, 2011, be required to obtain 

PSD permits before undertaking new 

construction or modification projects, 

but neither the states nor EPA would be 

authorized to issue the permits. The SIP 

call and, in the states in which it is 

necessary, the FIP will assure that in 

each of the 13 states—with the 

exception of Texas—either the state or 

EPA will have the authority to issue 

PSD permits by January 2, 2011, or 

sufficiently soon thereafter so that 

sources in the state will not be adversely 

affected by the short-term lack of a 

permitting authority. We are planning 

additional actions to ensure that GHG 

sources in Texas can be issued permits 

as of January 2, 2011. 

The SIP submittal deadlines that this 

rule establishes for the states reflect, in 

almost all instances, a recognition by 

EPA and the states of the need to move 

expeditiously to assure the availability 

of a permitting authority. EPA 

emphasizes that for those states for 

which EPA proceeds to promulgate a 

FIP: (i) The purpose of the FIP is solely 

to assure that industry in the state will 

be able to obtain required air permits to 

construct or modify; (ii) EPA encourages 

the state to assume delegation of the FIP 

so that the state will become the permit 

issuer (although administering EPA 

regulations); and (iii) EPA will rescind 

the FIP as soon as the state submits and 

EPA approves a corrective SIP revision. 

The corrective SIP revision that this 

rule requires must: (i) Apply the SIP 

PSD program to GHG-emitting sources; 

(ii) define GHGs as the same pollutant 

to which the Light-Duty Vehicle Rule 4

(LDVR) applies, that is, a single 

pollutant that is the aggregate of the 

group of six gases (carbon dioxide (CO2), 

methane (CH4), nitrous oxide (N2O), 

hydrofluorocarbons (HFCs), 

perfluorocarbons (PFCs), and sulfur 

hexafluoride (SF6)); and (iii) either limit 

PSD applicability to GHG-emitting 

sources by adopting the applicability 

thresholds included in the Tailoring 

Rule or adopt lower thresholds and 

show that the state has adequate 

personnel and funding to administer 

and implement those lower thresholds. 

III. Background 

A. CAA and Regulatory Context 

EPA described the relevant 

background information in the SIP call 

proposal, 75 FR at 53896–98, as well as 

in the final Tailoring Rule, 75 FR at 

31518–21. Knowledge of this 

background information is presumed 

and will be only briefly summarized 

here. 

1. SIP PSD Requirements 

In general, under the CAA PSD 

program, as discussed later in this 

preamble, a stationary source 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), 169(2)(C). The 

permit must, among other things, 

include emission limitations associated 

with the best available control 

technology (BACT). CAA section 

165(a)(4). 

Specifically, 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 the 

source first obtains a PSD permit that, 

among other things, includes 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’’ 

more narrowly so that only emissions of 

any pollutant subject to regulation 

under the CAA trigger PSD. This 

interpretation currently is found in 40 

CFR 51.166(j)(1), 52.21(j)(2), which 

applies PSD to any ‘‘regulated NSR 

pollutant,’’ a term that the regulations 

then define to include four classes of air 

pollutants, including, as a catch-all, 

‘‘any pollutant that otherwise is subject 

to regulation under the Act.’’ 40 CFR 

51.166(b)(49)(iv), 52.21(b)(50)(iv). 

The CAA contemplates that the PSD 

program be implemented by the states 

through 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. 


emcdonald on DSK2BSOYB1PROD with RULES2
Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77701 

5 In the Tailoring Rule, we noted that commenters 

argued, with some variations, that the PSD 

provisions applied only to National Ambient Air 

Quality Standards (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 are not 

reopening that issue in this rulemaking. 

6 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

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

(December 15, 2009). 

7 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

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

8 ‘‘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’’ (which we call the ‘‘Johnson 

Memo’’), December 18, 2008. 

9EPA identified the first category of states, local 

jurisdictions, and Indian country, in the proposal 

for this action. 75 FR at 53898, n. 11. This list is 

updated in Declaration of Regina McCarthy, 

Coalition for Responsible Regulation v. EPA, DC 

Cir. No. 09–1322 (and consolidated cases) 

(McCarthy Declaration), Attachment 1, Table 1, 

Continued 

These provisions, read in conjunction 

with the PSD applicability provisions, 

CAA section 165(a)(1), 169(1), mandate 

that SIPs include PSD programs that are 

applicable to any air pollutant that is 

subject to regulation under the CAA, 

including, as discussed later in this 

preamble, GHGs on and after January 2, 

2011.5

2. Recent EPA Regulatory Action 

Concerning PSD Requirements for GHGemitting Sources 

In recent months, EPA has taken four 

distinct actions related to GHGs under 

the CAA. Some of these, in conjunction 

with the operation of the CAA, trigger 

PSD applicability for GHG-emitting 

sources on and after January 2, 2011, but 

focus the scope of PSD on the largest 

GHG-emitting sources. The first of these 

four actions was what we call the 

‘‘Endangerment Finding,’’ which is 

governed by CAA section 202(a). Based 

on an exhaustive review and analysis of 

the science, in December 2009 the 

Administrator exercised her judgment to 

conclude that ‘‘six greenhouse gases 

taken in combination endanger both the 

public health and the public welfare of 

current and future generations.’’ The 

Administrator also found ‘‘that the 

combined emissions of these 

greenhouse gases from new motor 

vehicles and new motor vehicle engines 

contribute to the greenhouse gas air 

pollution that endangers public health 

and welfare under CAA section 

202(a).’’ 6 This Endangerment Finding 

led directly to promulgation of what we 

call the ‘‘Vehicle Rule’’ or the ‘‘LDVR,’’ 

also governed by CAA section 202(a), in 

which EPA set standards for the 

emission of greenhouse gases for new 

motor vehicles built for model years 

2012–2016.7 The other two actions were 

what we call the ‘‘Johnson Memo 

Reconsideration’’ or the ‘‘Timing 

Decision’’ 8 and the Tailoring Rule and 

were governed by the PSD and title V 

provisions in the CAA. EPA issued them 

to address the automatic statutory 

triggering of these programs for 

greenhouse gases due to the Vehicle 

Rule’s establishing the first controls for 

greenhouse gases under the Act. More 

specifically, the Johnson Memo 

Reconsideration provided EPA’s 

interpretation of a pre-existing 

definition in its PSD regulations 

delineating the ‘‘pollutants’’ that are 

taken into account in determining 

whether a source must obtain a PSD 

permit and the pollutants each permit 

must control. Regarding the Vehicle 

Rule, the Johnson Memo 

Reconsideration stated that such 

regulations, when they take effect on 

January 2, 2011, will, by operation of 

the applicable CAA requirements, 

subject GHG-emitting sources to PSD 

requirements. The Tailoring Rule 

limited the applicability of PSD 

requirements to the largest GHGemitting sources on a phased-in basis. 

Certain specific aspects of these rules 

are important to highlight for purposes 

of the present action. In the 

Endangerment Finding, the 

Administrator found that six long-lived 

and directly emitted GHGs—CO2, CH4, 

N2O, HFCs, PFCs, and SF6—may 

reasonably be anticipated to endanger 

public health and welfare. The LDVR 

included applicability provisions 

specifying that the rule ‘‘contains 

standards and other regulations 

applicable to the emissions of those six 

greenhouse gases.’’ 75 FR at 25686 (40 

CFR 86.1818–12(a)). 

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 same six GHGs 

(CO2, CH4, N2O, HFCs, PFCs, and SF6), 

based on the LDVR. The Tailoring Rule 

further provided that for purposes of 

determining whether the amount of 

GHGs emitted (or potentially emitted) 

exceeded the specified thresholds, it 

must be calculated on both a mass 

emissions basis and 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. 

3. SIP Inadequacy and Corrective Action 

The CAA provides a mechanism for 

the correction of SIPs with certain types 

of inadequacies, 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 EPA does not receive 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 within 

2 years after the [finding] * * * unless 

the State corrects the deficiency, and 

[EPA] approves the plan or plan 

revision, before [EPA] promulgates such 

[FIP].’’ 

4. State PSD SIPs 

The states and other jurisdictions in 

the U.S. may be grouped into three 

categories with respect to their PSD 

programs and the applicability of those 

PSD programs to GHG-emitting sources: 

The first category is the states that 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.9


emcdonald on DSK2BSOYB1PROD with RULES2
77702 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

which can be found in the docket for this 

rulemaking, except that the Northern Mariana 

Islands and the Trust Territories also fall into this 

category. EPA is not taking any final action with 

respect to these jurisdictions, and EPA’s 

identification of them in this action is for 

informational purposes only. 

10EPA included in the proposal a list of states 

and local jurisdictions that appeared to fall into this 

third category. 75 FR at 53899, table IV–2. This list 

is updated in Declaration of Regina McCarthy, 

Coalition for Responsible Regulation v. EPA, DC 

Cir. No. 09–1322 (and consolidated cases) 

(McCarthy Declaration), Attachment 1, Table 3, 

which can be found in the docket for this 

rulemaking. Except to the extent discussed later in 

this preamble, EPA is not taking final action in this 

rule with respect to these states and local 

jurisdictions. 

The second category comprises states 

that have approved SIP PSD programs 

that do not apply to GHG-emitting 

sources. This second category is the 

subject of this rulemaking and is 

discussed further in this preamble. 

The third category, which includes 

most of the states, is states that have 

approved SIP PSD programs that apply 

to GHG-emitting sources. Those SIPs 

have PSD applicability provisions that 

identify, as some or all of the pollutants 

covered under their PSD program, any 

‘‘pollutant subject to regulation’’ under 

the CAA. Further, in these states, this 

term in effect is automatically updating 

so as to cover pollutants that become 

newly subject to regulation under the 

CAA without further action by the state. 

As a result, the PSD programs of these 

states will apply to GHG emissions as of 

January 2, 2011, when GHGs become 

subject to regulation under the LDVR. 

See 40 CFR 52.21(b)(50).10

B. Proposed Action 

1. Finding of Substantial Inadequacy 

and SIP Call 

In the proposal for this rulemaking, 

EPA proposed the SIP call for 13 states 

whose SIPs have EPA-approved PSD 

programs but did not appear to apply to 

GHG-emitting sources. These 13 states 

are listed in table III–1: 

TABLE III–1—STATES WITH SIPS THAT

EPA PROPOSED DO NOT APPEAR

TO APPLY PSD TO GHG SOURCES

[Presumptive SIP Call List] 

State (or area) 

Alaska 

Arizona: Pinal County; Rest of State (Excludes Maricopa County, Pima County, 

and Indian Country) 

Arkansas 

California: Sacramento Metropolitan AQMD 

Connecticut 

Florida 

Idaho 

Kansas 

Kentucky: Jefferson County; Rest of State 

TABLE III–1—STATES WITH SIPS THAT

EPA PROPOSED DO NOT APPEAR

TO APPLY PSD TO GHG 

SOURCES—Continued 

[Presumptive SIP Call List] 

State (or area) 

Nebraska 

Nevada: Clark County 

Oregon 

Texas 

In the proposal, EPA explained that it 

had identified these 13 states on the 

basis of EPA’s review of the SIP PSD 

provisions and other relevant state law, 

as well as the views of the states as 

expressed in their written statements to 

EPA following promulgation of the 

Tailoring Rule and in other 

communications with the EPA regions. 

EPA further explained that this 

information appeared to indicate that 

these SIP PSD provisions did not apply 

to GHG-emitting sources because of one 

or another of the following problems, 

depending on the state: (i) The PSD 

applicability provision applies to any 

‘‘pollutant subject to regulation’’ under 

the CAA, but other provisions of state 

law preclude what we call automatic 

updating or forward adoption, so that 

this applicability provision covers only 

pollutants—not including GHGs—that 

were subject to regulation at the time 

the state promulgated or enacted the 

applicability provision; (ii) the PSD 

applicability provision does not apply 

to any ‘‘pollutant subject to regulation’’ 

under the CAA and instead applies to 

only specifically identified pollutants, 

not including GHGs; or (iii) the SIP 

explicitly precludes regulation of CO2. 

On the other hand, EPA further 

recognized in the proposal that a state 

that fits into one of the earlier-described 

subcategories might nevertheless have 

in its SIP or other state laws a ‘‘general 

authority clause’’ that affirms the state’s 

legal authority to issue, and enforce 

compliance with, permits that are 

consistent with federal requirements. In 

this case, the SIP, read as a whole, may 

be considered to apply PSD to GHG 

sources. Even so, we added that if a SIP 

appeared ambiguous as to whether it 

applied PSD to GHG-emitting sources 

(e.g., it includes an applicability 

provision that explicitly excludes GHG 

sources but also includes a generalauthority provision that could be read to 

authorize permitting of GHG sources), 

we would consider the SIP PSD program 

not to apply to GHG sources. 

As a related matter, we noted that if 

a state with a SIP that did not appear to 

apply PSD to GHG-emitting sources 

submitted a SIP revision prior to 

December 1, 2010—the date EPA 

intended to issue the SIP call—EPA 

would not include that state in the SIP 

call. 

EPA included with the proposal a 

technical support document (TSD) that 

addressed each state with an approved 

PSD program that did not at time of 

proposal appear to apply to GHGemitting sources. The TSD referenced 

the applicable state law and the position 

of the state as to PSD applicability for 

GHG-emitting sources, based on 

communications to EPA. EPA also 

included in the TSD much the same 

information for each state with an 

approved PSD program that did at time 

of proposal appear to apply to GHGemitting sources. 

For each of the 13 states, EPA 

proposed to issue a finding that the SIP 

is ‘‘substantially inadequate * * * to 

* * * comply with any requirement of 

[the CAA]’’ and EPA proposed to 

‘‘require the State to revise the plan as 

necessary to correct such inadequacies,’’ 

i.e., EPA proposed to issue a SIP call in 

accordance with CAA section 110(k)(5). 

EPA explained that the reference in 

CAA section 110(k)(5) to ‘‘any 

requirement of [the CAA]’’ includes the 

PSD requirements and that SIPs are 

therefore required to include PSD 

programs that apply to sources that emit 

pollutants subject to regulation. As a 

result, EPA proposed the 13 states’ SIPs 

merit a finding of substantial 

inadequacy because they fail to apply 

the PSD program to GHG-emitting 

sources on and after January 2, 2011. 

EPA further proposed that because the 

SIPs merit a finding of substantial 

inadequacy, EPA is authorized to issue 

a SIP call and thereby require a 

corrective SIP revision. 

EPA invited comment on its legal 

interpretation of the 13 states’ SIPs and 

made clear that for any of these states, 

if EPA did not receive any further 

information from the state or other 

commenters indicating that EPA’s 

proposed interpretation was incorrect, 

EPA intended to finalize the SIP call, 

but that on the other hand, if EPA did 

receive further information indicating 

that the proposed interpretation was 

incorrect, then EPA would not finalize 

the SIP call. 

In addition, EPA specifically solicited 

comment on its interpretation that the 

approved SIPs for the other states do 

appear to apply their PSD program to 

GHG-emitting sources. EPA indicated 

that if it received comments indicating, 

for any of these latter states, that the SIP 

does not apply PSD to GHG sources, 

then, without further proposed action, 

EPA would issue a final finding of 

substantial inadequacy and SIP call for 


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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77703 

11Note that in this final rule, except for any of 

these states for which EPA is making a finding of 

substantial inadequacy and issuing a SIP call, EPA 

is not taking any action with respect to these states. 

12Pennsylvania’s Philadelphia County correctly 

belongs in the category of states that do not have 

PSD programs approved into their SIPs. We note 

this correction for informational purposes only, as 

it has no bearing on this rulemaking. A corrected 

table III–2 would list, ‘‘Pennsylvania: All except 

Allegheny County and Philadelphia County.’’ 

However, we have not reflected the correction in 

table III–2 itself, for the reason that the table 

represents our proposed list. In addition, as noted 

above, an updated version of this category of 

jurisdictions—those that have approved PSD SIPs 

that apply to GHG-emitting sources—appears in 

Declaration of Regina McCarthy, Coalition for 

Responsible Regulation v. EPA, DC Cir. No. 09– 

1322 (and consolidated cases) (McCarthy 

Declaration), Attachment 1, Table 3, which can be 

found in the docket for this rulemaking. 

13Note that in this final action, we are issuing a 

SIP call for Wyoming, based on information 

submitted by the state during the SIP call comment 

period. 

that state. EPA identified these states as 

listed in table III–2, ‘‘States with SIPs 

that EPA Proposed Appear to Apply 

PSD to GHG Sources (Presumptive 

Adequacy List).’’ 11

TABLE III–2—STATES WITH SIPS THAT

EPA PROPOSED APPEAR TO APPLY

PSD TO GHG SOURCES

[Presumptive Adequacy List] 

State (or area) 

Alabama: Jefferson County; Huntsville; Rest 

of State 

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

APCD 

Colorado 

Delaware 

Georgia 

Indiana 

Iowa 

Louisiana 

Maine 

Maryland 

Michigan 

Mississippi 

Missouri 

Montana 

New Hampshire 

New Mexico: Albuquerque; Rest of State 

North Carolina: Forsyth County; Mecklenburg; Western NC; Rest of State 

North Dakota 

Ohio 

Oklahoma 

Pennsylvania: All except Allegheny County 12

Rhode Island 

South Carolina 

South Dakota 

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

Utah 

Vermont 

Virginia 

West Virginia 

Wisconsin 13

Wyoming 13

We further stated in the proposal that 

we intended to finalize the finding of 

substantial inadequacy and the SIP call 

on or about December 1, 2010, 

approximately one month in advance of 

the January 2, 2011, date when PSD 

requirements will first apply to GHGemitting sources. We justified this 

timing on the need to give sources 

notice that the PSD requirements apply. 

In addition, we recognized that as a 

practical matter, some states would not 

object to our imposing 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 would be unable to 

obtain a permit due to lack of a 

permitting authority to process their 

PSD applications. We observed that we 

could not 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. 

In the proposal, we also described in 

greater detail the process for finalizing 

the SIP call. We stated that we would 

issue the final SIP call for any state for 

which we had concluded that the PSD 

program did not as of that date apply to 

GHG-emitting sources. However, if a 

state that was included in the proposed 

SIP call were to submit a SIP revision 

by December 1, 2010, that purported to 

correct that inadequacy, we would not 

finalize the finding or SIP call for that 

state. Rather, we would take action on 

its SIP submittal as promptly as 

possible. While we will strive to 

expedite approval of such SIP 

submissions, we could not commit in 

the proposal to approving them by 

January 2, 2011. We therefore cautioned 

in our proposal (see 75 FR at 53904) that 

states with submitted (but not EPAapproved) SIP revisions will not be able 

to issue federally approved PSD permits 

until those SIP revisions are approved. 

We stated that for all other states for 

which we concluded that the PSD 

program did not apply to GHG sources, 

on or about December 1, 2010, we 

would make the finding of substantial 

inadequacy and issue the SIP call in a 

final rule and submit the notice for the 

rule for publication in the Federal 

Register as soon as possible thereafter. 

We stated that at the same time, we 

would also notify the state of the finding 

of substantial inadequacy by letter and 

by posting the signed SIP call 

rulemaking on our Web site. In view of 

the urgency of the task, which is to do 

everything possible to ensure that a PSD 

permitting authority for affected GHG 

sources is in place by January 2, 2011, 

we proposed to give the final SIP call an 

effective date of its publication date. We 

recognized that this process is highly 

expedited, but we stated that it was 

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. 

In the proposal, EPA discussed in 

some detail the SIP submittal deadline 

it was proposing to establish under CAA 

section 110(k)(5). Under this provision, 

in notifying the state of the finding of 

substantial inadequacy and issuing the 

SIP call, EPA ‘‘may establish reasonable 

deadlines (not to exceed 18 months after 

the date of such notice) for the 

submission of such plan revisions.’’ EPA 

proposed to allow the state up to 12 

months from the date of signature of the 

final finding of substantial inadequacy 

and SIP call within which to submit the 

SIP revision, unless, during the 

comment period, the state expressly 

advised 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 EPA would establish the 

shorter period as the deadline. EPA 

stated that, assuming that EPA were to 

finalize the SIP call on or about 

December 1, 2010, as EPA said it 

intended to do in the proposal, then the 

earliest possible SIP submittal deadline 

would be December 22, 2010. 

A few states did not inform EPA until 

after the end of the comment period for 

the proposed SIP call that they would 

not object to a deadline earlier than 

December 2011. Nevertheless, we 

considered their responses when 

establishing their SIP submittal 

deadlines in this final action. 

EPA made clear that the purpose of 

establishing the shorter period as the 

deadline—for any state that advises us 

that it does not object to that shorter 

period—is to accommodate states that 

wish to ensure that a FIP is in effect as 

a backstop to avoid any gap in PSD 

permitting. EPA also made clear that if 

a state did not advise EPA that it does 

not object to a shorter deadline, then the 

12-month deadline would apply. EPA 

emphasized that for any state that 

receives a deadline after January 2, 

2011, the affected GHG-emitting sources 

in that state may be delayed in their 

ability to receive a federally approved 

permit authorizing construction or 

modification. That is, after January 2, 

2011, these sources may not have 

available a permitting authority to 

review their permit applications until 


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77704 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

14See http://www.epa.gov/nsr/ 

ghgpermitting.html/for more information on EPA’s 

recent GHG permitting guidance document and on 

EPA’s other permitting guidance for GHGs. 

15Specifically, we stated the following in ‘‘PSD 

and Title V Permitting Guidance for Greenhouse 

Gases,’’ pages 8–10: In the annual US inventory of 

GHG emissions and sinks, EPA has reported that 

the Land-Use, Land-Use Change and Forestry 

(LULUCF) sector (including those stationary 

sources using biomass for energy) in the United 

States is a net carbon sink, taking into account the 

carbon gains (e.g., terrestrial sequestration) and 

losses (e.g., emissions or harvesting) from that 

sector. [Footnote: 2010 US Inventory Report at 

http://epa.gov/climatechange/emissions/ 

usinventoryreport.html.] On the basis of the 

Inventory results and other considerations, 

numerous stakeholders requested that EPA exclude, 

either partially or wholly, emissions of GHG from 

bioenergy and other biogenic sources for the 

purposes of the BACT analysis and the PSD 

program based on the view that the biomass used 

to produce bioenergy feedstocks can also be a 

carbon sink and therefore management of that 

biomass can play a role in reducing GHGs. 

[Footnote: GHG emissions from bioenergy and other 

biogenic sources are generated during combustion 

or decomposition of biologically-based material, 

and include sources such as utilization of forest or 

agricultural products for energy, wastewater 

treatment and livestock management facilities, and 

fermentation processes for ethanol production.] 

EPA plans to provide further guidance on the how 

to consider the unique GHG attributes of biomass 

as fuel. 

Even before EPA takes further action, however, 

permitting authorities may consider, when carrying 

out their BACT analyses for GHG, the 

environmental, energy and economic benefits that 

may accrue from the use of certain types of biomass 

and other biogenic sources (e.g., biogas from 

landfills) for energy generation, consistent with 

existing air quality standards. In particular, a 

variety of federal and state policies have recognized 

that some types of biomass can be part of a national 

strategy to reduce dependence on fossil fuels and 

to reduce emissions of GHGs. Federal and state 

policies, along with a number of state and regional 

efforts, are currently under way to foster the 

expansion of renewable resources and promote 

biomass as a way of addressing climate change and 

enhancing forest-management. EPA believes that it 

is appropriate for permitting authorities to account 

for both existing federal and state policies and their 

underlying objectives in evaluating the 

environmental, energy and economic benefits of 

biomass fuel. Based on these considerations, 

permitting authorities might determine that, with 

respect to the biomass component of a facility’s fuel 

stream, certain types of biomass by themselves are 

BACT for GHGs. 

To assist permitting authorities further in 

considering these factors, as well as to provide a 

measure of national consistency and certainty, EPA 

intends to issue guidance in January 2011 that will 

provide a suggested framework for undertaking an 

analysis of the environmental, energy and economic 

benefits of biomass in Step 4 of the top-down BACT 

process, that, as a result, may enable permitting 

authorities to simplify and streamline BACT 

determinations with respect to certain types of 

biomass. 

The guidance will include qualitative information 

on useful issues to consider with respect to biomass 

combustion, such as specific feedstock types and 

trends in carbon stocks at different spatial scales 

(national, regional, state). The aim of the 

information will be to assist permitting authorities 

in evaluating ‘‘carbon neutrality’’ in the assessment 

of environmental, energy and economic impacts of 

control strategies under Step 4 of the BACT process, 

which, again, may enable the streamlining of BACT 

determinations with respect to certain types of 

biomass. The agency is currently reviewing the 

comments received in response to the July 15, 2010 

Call for Information (CFI) that solicited feedback 

from stakeholders on approaches to accounting for 

GHG emissions from bioenergy and other biogenic 

sources. [Footnote: The Call for Information was 

published on July 15, 2010. (75 FR 41173 and 75 

FR 45112). EPA received over 7,000 comments and 

is still assessing them.] These comments, among 

other things, suggest that certain biomass feedstocks 

(e.g., biogas) may be considered carbon neutral with 

minor additional analysis. Such a carbon benefit 

may further inform the BACT process, especially 

where a permitting authority considers the net 

carbon impact or carbon-neutrality of certain 

feedstocks in accounting for the broader 

environmental implications of using particular 

biomass feedstocks. 

Finally, EPA also plans to determine by May 

2011, well before the start of the second phase of 

PSD implementation pursuant to the Tailoring Rule, 

whether the issuance of a supplemental rule is 

appropriate to address whether the Clean Air Act 

would allow the Agency and permitting authorities 

or permitted sources, when determining the 

applicability of PSD permitting requirements to 

sources of biogenic emissions, to quantify carbon 

emissions from bioenergy or biogenic sources by 

applying separate accounting rules for different 

the date that EPA either approves the 

SIP submittal or promulgates a FIP. 

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

month time period, although expedited, 

meets the CAA section 110(k)(5) 

requirement as a ‘‘reasonable’’ deadline 

in light of: (i) The SIP development and 

submission process; (ii) the preference 

of the state; and (iii) the imperative to 

minimize the period when sources will 

be subject to PSD but will not have 

available a PSD permitting authority to 

act on their permit application and 

therefore may face delays in 

constructing or modifying. 

2. Corrective SIP Revision 

EPA proposed certain requirements 

for each state receiving a SIP call. The 

central requirement is that the 

corrective SIP revision must apply the 

PSD program to GHG-emitting sources. 

EPA proposed two different ways for the 

SIP revision to do so: First, the SIP 

revision could revise the PSD 

applicability provisions or other 

provisions of the SIP or state law that 

affect PSD applicability, to assure that 

the PSD applicability provisions are 

automatically updating. This means that 

these provisions would apply PSD to 

any air pollutant as soon as the 

pollutant becomes newly subject to 

regulation under the CAA. As a result, 

the PSD applicability provisions will 

apply to GHGs as of January 2, 2011. In 

this case, EPA would approve the SIP 

revision as fully meeting the CAA 

requirements. Second, and as an 

alternative, the SIP revision could 

simply specifically identify GHGs as 

subject to PSD applicability, in which 

case EPA would approve the SIP 

revision on the basis that the revision is 

SIP-strengthening, as discussed later in 

this preamble. 

In addition, EPA proposed to require 

that the corrective SIP revision, in 

applying the PSD program to GHGemitting sources, must either limit PSD 

applicability to GHG-emitting sources at 

or above the Tailoring Rule thresholds 

or adopt lower thresholds. However, 

EPA added that if the state adopts lower 

thresholds, then the state must 

demonstrate 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). 

EPA also noted in the proposal that 

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, which is the 

pollutant that the LDVR subjected to 

regulation. EPA further noted in the 

proposal that in the Tailoring Rule, EPA 

adopted a carbon dioxide equivalent 

(CO2e) metric and use of short tons (as 

opposed to metric tons) for calculating 

GHG emissions in order to implement 

the Tailoring Rule thresholds. 75 FR at 

31530, 31532. A state retains the 

authority to adopt lower thresholds than 

in the Tailoring Rule in order to meet 

statutory requirements, and, as a result, 

EPA stated in the proposal that the state 

is not obligated to adopt the CO2e metric 

or use of short tons in the corrective SIP 

revision. However, if the state wishes to 

adopt the Tailoring Rule thresholds, but 

through a different approach, then the 

state must assure that its approach is at 

least as stringent as under the Tailoring 

Rule. 

As we noted in the preamble to the 

proposed rulemaking (75 FR at 53902), 

EPA 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. 

Subsequently, EPA discussed these 

considerations in its ‘‘PSD and Title V 

Permitting Guidance for Greenhouse 

Gases’’ 14 that was released on November 

10, 2010, and made available for public 

comment. In that GHG permitting 

guidance document, EPA described on 

pages 8 through 10 how permitting 

authorities may consider the use of 

biomass for energy generation when 

carrying out their BACT analyses for 

GHGs. EPA also described plans for 

future guidance regarding analysis of 

the environmental, energy, and 

economic benefits of biomass in GHG 

BACT determinations.15


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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77705 

types of feedstocks that reflect the net impact of 

their carbon emissions. This determination will 

take into consideration both the LULUCF inventory 

and the full record of responses to the CFI. 

16EPA has long interpreted the PSD applicability 

provisions in the CAA to be self-executing, that is, 

they apply by their terms so that a source that emits 

any air pollutant subject to regulation becomes 

subject to PSD—and, therefore, cannot construct or 

modify without obtaining a PSD permit—and these 

provisions apply by their terms in this manner 

regardless of whether the state has an approved SIP 

PSD program. What’s more, until an applicable 

implementation plan is in place—either an 

approved SIP or a FIP—no permitting authority is 

Continued 

IV. Final Action and Response to 

Comments 

A. Process for Response to Comments 

We proposed our SIP call and FIP 

actions as companion proposals. Both 

proposals were signed by the 

Administrator and made publicly 

available on August 12, 2010, and both 

proposals were published in the Federal 

Register on September 2, 2010. The SIP 

call and FIP actions share a rulemaking 

docket, and the majority of comments 

that were submitted to EPA during the 

proposals’ comment periods were 

provided in the form of a letter that 

intermingled comments on the SIP call 

and the FIP actions. We respond to 

comments on the SIP call proposal in 

this preamble, in a Response to 

Comment Document for the SIP call, 

and in a Supplemental Information 

Document for the SIP call. The 

Response to Comment Document and 

Supplemental Information Document 

can be found in the docket for this 

action. We will respond to comments on 

the FIP when we finalize that action. 

B. Finding of Substantial Inadequacy 

and SIP Call 

In this action, EPA is finalizing its 

proposal, under CAA section 110(k)(5), 

to: (i) Issue a finding that the SIPs for 

13 states (comprising 15 state and local 

programs) are ‘‘substantially inadequate 

to * * * comply with any requirement 

of this Act’’ because their PSD programs 

do not apply to GHG-emitting sources as 

of January 2, 2011; (ii) ‘‘require[] the 

state[s] to revise the [SIP] * * * to 

correct such inadequacies,’’ that is, to 

issue a SIP call requiring submission of 

a corrective SIP revision; and (iii) 

establish a ‘‘reasonable deadline[] (not to 

exceed 18 months after the date of such 

notice)’’ for the submission of the 

corrective SIP revision. This deadline 

ranges, for different states, from 3 weeks 

to 12 months after the date of this 

action. The 13 states and their deadlines 

are listed in table IV–1, ‘‘SIP Call States 

and SIP Submittal Deadlines’’: 

TABLE IV–1—SIP CALL STATES AND

SIP SUBMITTAL DEADLINES

State (or area) 

SIP 

submittal 

deadline 

Arizona: Pinal County ............... 12/22/10 

TABLE IV–1—SIP CALL STATES AND

SIP SUBMITTAL DEADLINES—Continued 

State (or area) 

SIP 

submittal 

deadline 

Arizona: Rest of State (Excludes Maricopa County, 

Pima County, and Indian 

Country) ................................ 12/22/10 

Arkansas ................................... 12/22/10 

California: Sacramento Metropolitan AQMD ........................ 01/31/11 

Connecticut ............................... 03/01/11 

Florida ....................................... 12/22/10 

Idaho ......................................... 12/22/10 

Kansas ...................................... 12/22/10 

Kentucky (Jefferson County): 

Louisville Metro Air Pollution 

Control District ...................... 01/01/11 

Kentucky: Rest of State (Excludes Louisville Metro Air 

Pollution Control District (Jefferson County)) ..................... 03/31/11 

Nebraska .................................. 03/01/11 

Nevada: Clark County .............. 07/01/11 

Oregon ...................................... 12/22/10 

Texas ........................................ 12/01/11 

Wyoming ................................... 12/22/10 

This final rule is consistent with 

EPA’s proposal, except that (i) EPA is 

not finalizing the SIP call with respect 

to one state for which EPA proposed the 

SIP call, namely Alaska, because it has 

already submitted a revised SIP, and (ii) 

EPA is finalizing the SIP call with 

respect to one state for which EPA 

solicited comment but did not propose 

the SIP call, namely Wyoming. 

In this section of this preamble, we: 

(1) Explain in detail our overall basis for 

these actions, including responding to 

comments on that overall basis; and (2) 

explain concisely our basis for action for 

each of the 13 states. In a Supplemental 

Information Document, which can be 

found in the docket for this rulemaking, 

we include more detail for our 

explanations and we respond to statespecific comments we received in 

response to the proposed actions. 

1. Overall Basis 

a. Finding of Substantial Inadequacy: 

Final Action and Response to 

Comments 

(i) Final Action 

Our overall basis for issuing the 

finding of substantial inadequacy and 

issuing the SIP call for the 13 states is 

the same as we stated during the 

proposal. As summarized earlier in this 

preamble, for each of these 13 states, 

EPA finds that the failure of the SIP PSD 

applicability provisions to apply to 

GHG-emitting sources renders the SIP 

‘‘substantially inadequate * * * to 

* * * comply with any requirement of 

[the CAA]’’ and as a result, EPA 

‘‘require[s] the State to revise the plan as 

necessary to correct such inadequacies,’’ 

i.e., issues a SIP call, all in accordance 

with CAA section 110(k)(5). 

We consider the legal basis to be 

straightforward. CAA section 110(k)(5), 

as quoted earlier in this preamble, 

authorizes EPA to issue a finding that a 

SIP is ‘‘substantially inadequate’’ to meet 

CAA requirements. The CAA does not 

define the quoted term, and as a result, 

it should be given its ordinary, everyday 

meaning. In the present case, the failure 

of a SIP to apply PSD to GHG-emitting 

sources means that the SIP is 

‘‘substantially inadequate’’ to comply 

with CAA requirements because (i) The 

CAA requires that SIP PSD programs 

apply PSD to GHG-emitting sources, (ii) 

the SIPs at issue fail to do so, and (iii) 

applying PSD to GHG-emitting sources 

would affect a large number of sources 

and permitting actions. 

CAA section 110(k)(5) authorizes EPA 

to issue a finding of substantial 

inadequacy whenever the SIP fails to 

comply with ‘‘any requirement of [the 

CAA].’’ CAA section 165(a)(1) provides 

that ‘‘[n]o major emitting facility * * * 

may be constructed * * * unless * * * 

a [PSD] permit has been issued for such 

proposed facility in accordance with 

this part.’’ CAA section 169(1) defines 

‘‘major emitting facility’’ as any 

stationary source that emits specified 

quantities of ‘‘any air pollutant.’’ EPA 

regulations have long defined ‘‘any air 

pollutant’’ as, at least in part, ‘‘any 

pollutant * * * subject to regulation 

under the Act.’’ 40 CFR 52.21(b)(50)(iv). 

Further, CAA section 161 requires SIPs 

to contain ‘‘emission limitations and 

such other measures as may be 

necessary to prevent significant 

deterioration of air quality * * *’’ and 

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

‘‘[e]ach [SIP] * * * meet the applicable 

requirements of * * * part C of this 

subchapter (relating to significant 

deterioration of air quality.’’ Reading 

these provisions together, the CAA 

requires that PSD requirements apply to 

any stationary source that emits 

specified quantities of any air pollutant 

subject to regulation under the CAA, 

and those PSD requirements must be 

included in the approved SIPs.16


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authorized to issue a permit to the source. In a 

recent decision, the 7th Circuit, mistakenly citing 

to PSD provisions when the issue before the court 

involved the separate and different non-attainment 

provisions of CAA sections 171–193, concluded 

that sources could continue to abide by permitting 

requirements in an existing SIP until amended, 

even if that SIP does not comport with the law. 

United States v. Cinergy Corp., No. 09–3344, 2010 

WL 4009180 (7th Cir. Oct. 12, 2010). In stark 

contrast to the nonattainment provisions actually at 

issue in Cinergy—which are not self-executing and 

must therefore be enforced through a SIP—PSD is 

self-executing; it is the statute (CAA section 165), 

not just the SIP, that prohibits a source from 

constructing a project without a permit issued in 

accordance with the Act. 

17 In another part of their comments, commenters 

state that the total number of affected permits is ‘‘a 

few permits with GHG limits in the first 6 months 

of 2011.’’ 

18We also explained our view that PSD may be 

triggered by non-NAAQS pollutants such as GHGs 

in the Tailoring Rule response to comments 

document (‘‘Prevention of Significant Deterioration 

and Title V GHG Tailoring Rule: EPA’s Response to 

Public Comments’’), pp. 34–41; and in EPA’s 

response to motions for a stay filed in the litigation 

concerning those rules (‘‘EPA’s Response to Motions 

for Stay,’’ Coalition for Responsible Regulation v. 

EPA, DC Cir. No. 09–1322 (and consolidated 

cases)), at 47–59. 

19Although, again, we are not reopening in this 

rule the issue of the number of permits that would 

include GHG controls, we note the following 

additional reasons why we do not find the 

commenters’ estimates persuasive: (i) The 

commenters stated that they were adjusting 

downward what they described as EPA’s estimates 

for ‘‘anyway’’ sources, but the commenters did not 

provide a basis for that downward adjustment. (ii) 

Some of the commenters have also brought lawsuits 

against the Tailoring Rule, and in court papers filed 

at approximately the same time as their comments 

in this rulemaking, they stated that the numbers of 

affected permits would be significantly higher than 

the numbers that they stated in their comments in 

this rulemaking. National Association of 

Manufacturers, et al., ‘‘Petitioner’s Motion for 

Partial Stay of EPA’s Greenhouse Gas Regulations,’’ 

Coalition for Responsible Regulation v. EPA, DC 

Cir. No. 09–1322 (and consolidated cases) at 45, 47. 

As of January 2, 2011, GHG-emitting 

sources will become subject to PSD. As 

a result, the CAA provisions described 

earlier in this preamble require PSD 

programs to apply to GHG-emitting 

sources. Accordingly, it is clear that the 

failure of any SIP PSD applicability 

provisions to apply the PSD program to 

GHG-emitting sources means that the 

SIP fails to comply with these CAA 

requirements. 

Moreover, in this case, the failure of 

the SIPs to apply PSD to GHG-emitting 

sources will affect a substantial number 

of sources and permitting actions. EPA 

estimated in the Tailoring Rule that on 

a nationwide basis, many of the sources 

that now require PSD permit 

applications due to their emissions of 

non-GHG pollutants (which we call 

‘‘anyway’’ sources) also emit GHG 

pollutants in quantities that will trigger 

the application of PSD. On average, on 

an annual basis nationwide, these 

sources submit 688 PSD permit 

applications. 75 FR at 31540. In 

addition, EPA estimated that beginning 

on July 2, 2011, on an annual basis 

nationwide, another 917 permit 

applications would potentially be 

submitted due to the GHG emissions of 

sources undertaking construction or 

modification activities, even though 

these sources’ other pollutants would 

not, in and of themselves, trigger PSD. 

Id. Thus, large numbers of permitting 

actions are at issue. Moreover, the 

principal PSD requirement that will 

apply to GHG-emitting sources is the 

requirement to implement BACT, which 

is the principal mechanism under the 

PSD provisions for controlling 

emissions from non-NAAQS pollutants. 

The failure of a SIP to apply PSD to 

GHG-emitting sources—when the SIP is 

required to apply PSD to GHG-emitting 

sources and when doing so would, on 

average, result in a significant number 

of additional permitting actions subject 

to PSD—justifies a finding by the 

Administrator that a SIP that does not 

apply PSD to such sources as of January 

2, 2011, is ‘‘substantially inadequate’’ to 

comply with CAA requirements. 

(ii) Response to Comments 

(I) Pollutants Subject to the SIP Call 

Some commenters stated that failure 

of a SIP to require PSD permits for GHGemitting sources does not constitute a 

‘‘substantial[] inadequa[cy]’’ under CAA 

section 110(k)(5). In making this point, 

the commenters first state that ‘‘PSD can 

only be triggered by pollutants for 

which EPA has issued a national 

ambient air quality standard (‘‘NAAQS’’) 

and only in attainment areas for such 

pollutants.’’ The commenters go on to 

assert that whether a SIP can be 

considered substantially inadequate due 

to its failure to require PSD permits 

depends on the extent to which the 

foregone controls ‘‘affect * * * the 

state’s ability to attain a NAAQS.’’ Then, 

the commenters claim that the numbers 

of permits that the state would be 

required to issue that would include 

GHG controls beginning January 2, 

2011, will be such ‘‘a small number’’ that 

‘‘the lack of a BACT limit for [GHGs] 

would not affect in any way the state’s 

ability to attain a NAAQS.’’ The 

commenters explain that the number of 

permits that would be required for GHG 

sources under the Tailoring Rule is 

limited to, on an annual basis, on 

average, in each state, (i) beginning as of 

January 2, 2011, ‘‘one or two permits’’ 

for sources that would be subject to PSD 

anyway due to their emissions of other 

pollutants (which, again, we call 

‘‘anyway’’ sources), plus (ii) beginning as 

of July 1, 2011, 11 permits for sources 

that would become subject to PSD solely 

because of their emissions of GHGs.17

Again, the commenters assert that the 

controls foregone from this ‘‘small 

number’’ of permits would have too 

little an impact on a state’s ability to 

attain a NAAQS to justify finding the 

SIP to be substantially inadequate under 

CAA section 110(k)(5). 

We find this argument unpersuasive 

for several reasons. Most importantly, 

we do not accept what appear to be the 

premises of this argument, which are 

that PSD can only be triggered for 

NAAQS pollutants and that whether 

deficiencies in a PSD program can 

render a SIP substantially inadequate 

depend only on whether any foregone 

controls affect the state’s ability to 

maintain a NAAQS. In the Tailoring 

Rule, we addressed at length the 

comment that PSD can be triggered only 

by pollutants subject to the NAAQS, 

and we concluded that as a matter of 

Chevron Step 1, this view was incorrect 

and that, instead, PSD applies to nonNAAQS pollutants, including GHGs. 

(See discussion in Tailoring Rule 

preamble, 75 FR at 31514 and 

elsewhere.)18 In this rulemaking, we are 

not reopening that issue. We did not 

solicit comment on it and our response 

to this comment should not be 

construed to be a reopening. 

Second, we believe that the 

commenters have understated the 

number of permitting actions that will 

involve GHG controls. As noted earlier 

in this preamble, we provided estimates 

of the numbers of permits in the 

Tailoring Rule. There, we addressed at 

length the numbers of permitting 

actions that would involve GHGs, 

including soliciting comment on our 

proposed estimates and revising our 

final estimates based on comments 

received. In this rulemaking, the GHG 

PSD SIP call, we are not reopening that 

issue. We did not solicit comment on it 

and our response to this comment 

should not be construed to be a 

reopening. As noted earlier in this 

preamble and also in the Tailoring Rule, 

we estimated that on an annual basis, 

nationwide, beginning January 2, 2011, 

there would be 688 permitting actions 

for ‘‘anyway’’ sources that would require 

GHG controls, and, beginning July 1, 

2011, there would be an additional 917 

permitting actions per year. These totals 

are significantly higher than the 

commenters’ estimates.19

Commenters also state that ‘‘EPA’s 

own actions further reveal the flaw in its 

analysis.’’ They note that EPA has 

proposed to issue the SIP call on 

grounds that some of the SIPs apply 

PSD to only criteria pollutants and not 


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20 ‘‘Prevention of Significant Deterioration (PSD) 

and Nonattainment New Source Review (NNSR): 

Baseline Emissions Determination, Actual-toFuture-Actual Methodology, Plantwide 

Applicability Limitations, Clean Units, Pollution 

Control Projects—Final Rule,’’ 67 FR 80186 

(December 31, 2002). 

to pollutants other than criteria 

pollutants, and they state that these SIPs 

have applied to only criteria pollutants 

for ‘‘many years.’’ The commenters argue 

that EPA has never, up until now, 

issued a SIP call on the basis that the 

PSD provisions in the SIPs do not cover 

pollutants more broadly. 

Commenters appear to infer from 

EPA’s failure to have initiated a SIP call 

for these states in the past an indication 

that EPA does not have authority to do 

so. That inference is simply incorrect. 

An agency’s not taking certain action at 

one point in time does not indicate a 

lack of authority to take that action, nor 

is the agency required to explain its 

earlier inaction in order to justify 

subsequent action. An agency may 

properly address an issue in step-bystep fashion. See, e.g., Grand Canyon 

Air Tour Coalition v. F.A.A., 154 F.3d 

455 (DC Cir. 1998), City of Las Vegas v. 

Lujan, 891 F.2d 927 (DC Cir. 1989). 75 

FR at 31544. In addition, as discussed 

later in this preamble, EPA has 

discretion in deciding whether, and 

when, to issue a finding of substantial 

inadequacy. Moreover, commenters 

have pointed to no statements by EPA 

indicating that SIPs that do not apply 

PSD to all pollutants subject to 

regulation fully meet CAA 

requirements; on the contrary, in the 

2002 NSR Reform rule,20 EPA 

specifically required SIP revisions to 

apply PSD to all pollutants subject to 

regulation. 

(II) Requirements of Tailoring Rule 

(A) Comment 

Some industry commenters stated that 

EPA had no basis to issue a SIP call, and 

so should withdraw the proposal, 

because EPA was required to give states 

3 years from the date the Tailoring Rule 

was published (June 3, 2010) to submit 

SIP revisions implementing PSD 

requirements for GHG-emitting sources. 

The commenters’ premise is that 

without the Tailoring Rule, PSD would 

not apply to GHG-emitting sources, and 

the Tailoring Rule imposed the 

requirement that PSD applies to GHGemitting sources. As evidence for its 

premise that the Tailoring Rule imposed 

this requirement, the commenters point 

to the fact that EPA codified certain 

provisions in 40 CFR 51.166, including, 

for example, provisions concerning the 

definition of GHGs. 

As a corollary to their premise, the 

commenters take the position that EPA 

regulations establishing the process for 

SIPs to adopt PSD program 

requirements govern and, therefore, 

require EPA to give the states up to 3 

years to submit their SIP revisions that 

incorporate what the commenters view 

as the Tailoring Rule’s requirement to 

apply PSD to GHG-emitting sources. See 

40 CFR 51.166(a)(6) (‘‘Any state required 

to revise its implementation plan by 

reason of an amendment to this section, 

including any amendment adopted 

simultaneously with this paragraph 

(a)(6)(i), shall adopt and submit such 

plan revision to the Administrator for 

approval no later than three years after 

such amendment is published in the 

Federal Register.’’). The commenters add 

that during this 3-year period, the 

Tailoring Rule requirements that PSD 

applies to GHG-emitting sources do not 

apply in the states. Rather, according to 

the commenters, state permitting 

authorities may continue to issue PSD 

permits that do not include 

requirements for GHGs. 

Commenters also argue that CAA 

section 110(a)(1), which requires SIP 

submittal ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe),’’ supports a 3-year period for 

the SIPs required under the SIP call. 

Another commenter takes a similar 

position but points to CAA section 166, 

which, the commenter asserts, provides 

a 21-month period for SIP submissions 

and also prevents the application of PSD 

to GHG-emitting sources in the 

meantime. 

Turning to the SIP call, the 

commenters view the purpose of the SIP 

call as requiring the state to adopt what 

the commenters call the Tailoring Rule’s 

requirements to apply PSD to GHGemitting sources. The commenters assert 

that because, in their view, the adoption 

process of 40 CFR 51.166(a)(6) applies— 

which allows states 3 years to adopt the 

SIP revision and, in the meantime, 

allows states to continue to issue 

permits without GHG controls—the SIP 

call (with its 12-month or shorter 

deadlines) does not apply and EPA 

should withdraw its SIP call proposal. 

Continuing to focus on the SIP call, 

one of the industry commenters adds: 

‘‘In the proposed SIP Call rule, EPA 

characterizes the Tailoring Rule as 

creating a PSD permit moratorium, 

beginning on the [January 2, 2011 and 

July 1, 2011 phase-in] dates, with regard 

to those sources whose GHG emissions 

are above the applicable Tailoring Rule 

thresholds.’’ This commenter argues that 

‘‘EPA’s premise that the Tailoring Rule 

imposes a construction moratorium, 

absent a SIP revision or a FIP, beginning 

on January 2, 2011, is unlawful and 

should be abandoned.’’ This commenter 

appears to ascribe to EPA the view that 

the construction ban is a sort of sanction 

that EPA may impose; the commenter 

appears to read the proposed SIP call as 

characterizing the Tailoring Rule as 

attempting to use the construction 

moratorium in that manner. The 

commenter does not cite any statement 

in the proposed SIP call that 

characterizes the Tailoring Rule in that 

manner or any provision in the 

Tailoring Rule that could be read to 

attempt to use the construction 

moratorium in that manner. 

(B) Response 

The commenters have misstated what 

the Tailoring Rule did and, in so doing, 

have misstated the source of the 

requirement that PSD applies to GHGemitting sources. Contrary to what the 

commenters state, the Tailoring Rule 

did not establish the requirement that 

PSD apply to GHG-emitting sources. 

This requirement was established by 

operation of the applicable CAA 

provisions, in conjunction with the 

LDVR. That is, the CAA requirements (i) 

prohibit ‘‘major emitting facilit[ies]’’ 

from constructing or modifying without 

obtaining a permit that meets the PSD 

requirements, CAA section 165(a)(1), 

and (ii) define a ‘‘major emitting facility’’ 

as a source that emits a specified 

quantity of ‘‘any air pollutant,’’ CAA 

section 169(1), which EPA has long 

interpreted as any pollutant subject to 

regulation. In this manner, the CAA 

requirements for PSD applicability are 

what we call automatically updating, 

that is, whenever EPA regulates a 

previously unregulated pollutant, PSD 

applies at that time to that pollutant 

without further regulatory action by 

EPA. 

EPA regulations have long codified 

this automatically updating aspect of 

the CAA PSD requirements. See 43 FR 

26380, 26403/3, 26406 (June 19, 1978) 

(promulgating 40 CFR 51.21(b)(1)(i)) and 

42 FR 57479, 57480, 57483 (November 

3, 1977) (proposing 40 CFR 

51.21(b)(1)(i)) (applying PSD 

requirements to a ‘‘major stationary 

source’’ and defining that term to 

include sources that emit specified 

quantities of ‘‘any air pollutant regulated 

under the Clean Air Act’’). Most 

recently, in our 2002 NSR Reform rule, 

EPA reiterated these requirements, 

although changing the terminology. 67 

FR 80186 (December 31, 2002). 

Specifically, EPA required that 

emissions of ‘‘any regulated NSR 

pollutant’’ be subject to PSD 

requirements when emitted in specified 

quantities by sources and defined that 


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21More broadly, the Tailoring Rule indicated that 

the Tailoring Rule thresholds could be treated as 

incorporated in any of several of the components 

of the regulatory definition of ‘‘major stationary 

source.’’ 75 FR at 31582. 

22Nor does any provision in 40 CFR 51.166 

mandate that states adopt the Tailoring Rule 

thresholds. Again, the Tailoring Rule thresholds are 

limitations on PSD applicability and are not 

minimum PSD requirements that states must adopt 

under CAA section 110(a) or the PSD provisions. 

Rather, a state may, if it chooses, retain the lower 

100/250-tpy thresholds, apply PSD to a larger 

universe of GHG-emitting sources, and increase its 

resources for PSD permitting accordingly. Thus, the 

3-year period in 40 CFR 51.166(a)(1) does not apply 

to the SIP revisions that adopt the Tailoring Rule 

thresholds. 

term to include pollutants regulated 

under certain CAA requirements, as 

well as ‘‘any pollutant that otherwise is 

subject to regulation under the [CAA].’’ 

52.166(b)(49)(iv). EPA made clear in the 

preamble to the NSR Reform rule that 

PSD applicability was automatically 

updating. 67 FR at 80240. 

As discussed elsewhere, it is these 

provisions, in conjunction with the 

LDVR (which subjects GHGs to 

regulation), that have triggered PSD 

applicability for GHG-emitting sources. 

The Tailoring Rule did not do so. 

In fact, rather than establishing the 

requirement that PSD apply to GHGemitting sources, the Tailoring Rule 

alleviated that requirement for most of 

the GHG-emitting sources that would 

otherwise be affected. The Tailoring 

Rule did so by providing that the only 

GHGs ‘‘subject to regulation’’ are those 

that are emitted by sources at or above 

specified thresholds (the Tailoring Rule 

thresholds).21 In order to identify the 

thresholds, it was necessary for EPA to 

identify (i) the pollutant that comprises 

GHGs and (ii) how to account for that 

pollutant. However, the Tailoring Rule 

made clear that, on the one hand, the 

states may either: (a) Adopt different 

requirements for the thresholds, as long 

as those requirements were equivalent 

to the requirements of the thresholds 

promulgated by EPA; or (b) apply lower 

thresholds, as long as the states 

accompanied them with an assurance of 

adequate resources. Thus, had EPA 

never promulgated the Tailoring Rule, 

PSD would nevertheless apply to GHGemitting sources; it would apply to all 

GHG-emitting sources at or above the 

100/250-tpy threshold; and it would not 

be limited to GHG-emitting sources at or 

above the Tailoring Rule thresholds. 

The SIP call that EPA is finalizing in 

this action is based on the failure of the 

SIPs to apply PSD to GHG-emitting 

sources, and that failure, in turn, is 

rooted in the failure of the SIPs to apply 

PSD to newly regulated pollutants on an 

automatically updating basis. The states’ 

corrective SIP revision in response to 

the SIP call that applies PSD to GHGemitting sources may apply the 

Tailoring Rule thresholds (or lower 

thresholds, depending, as just noted, on 

the state’s resources), but, again, the 

current failure of the SIPs to include the 

Tailoring Rule thresholds is not the 

basis for the SIP call. 

As a result, the process of 40 CFR 

51.166(a)(6)(i), with its 3-year deadline, 

does not apply in place of the SIP call, 

as the commenter suggests. 40 CFR 

51.166(a)(6)(i) provides, ‘‘Any State 

required to revise its implementation 

plan by reason of an amendment to this 

section, including any amendment 

adopted simultaneously with this 

paragraph (a)(6)(i), shall adopt and 

submit such plan revision to the 

Administrator for approval no later than 

three years after such amendment is 

published in the Federal Register.’’ 

(Emphasis added.) This provision was 

added as part of the 2002 rulemaking 

revising the NSR program that we call 

the NSR Reform rule. See 67 FR 80186 

(December 31, 2002). In addition, as 

noted already, the requirement that SIP 

PSD programs automatically update is a 

longstanding requirement, and EPA 

most recently reiterated that 

requirement, with revised terminology, 

in the NSR Reform rule as well. There, 

EPA revised the definition of major 

stationary source—the entity to which 

PSD applies—to mean a source that 

emits the requisite amount of ‘‘any 

regulated NSR pollutant,’’ 40 CFR 

51.166(b)(1)(i)(a), 67 FR at 80239–40; 

and EPA defined that term to include, 

among other things, ‘‘any air pollutant 

that otherwise is subject to regulation 

under the Act.’’ 40 CFR 

51.166(b)(49)(iv). EPA added in the 

preamble, ‘‘[t]he PSD program applies 

automatically to newly regulated NSR 

pollutants, which would include final 

promulgation of an NSPS applicable to 

a previously unregulated pollutant.’’ 67 

FR at 80240. After EPA promulgated the 

NSR Reform rule, many states submitted 

SIP revisions that incorporated the 

revised terminology, and in that 

manner, assured that their PSD 

programs automatically updated. Of 

course, the states subject to this SIP call 

have had the opportunity to submit SIP 

revisions since December 31, 2002— 

almost 8 years ago—to conform to the 

NSR Reform rule and thereby assure 

that their PSD programs are 

automatically updating. 67 FR at 80241. 

Many of the affected states did not do 

so, and that has led to the failure of the 

SIPs to apply PSD to GHGs, which is the 

substantial inadequacy that justifies the 

SIP call. 

It is true that the SIP call requires a 

corrective SIP revision for states to 

apply PSD to GHG-emitting sources 

(and does not mandate that states revise 

their PSD applicability provisions to 

incorporate an automatic updating 

mechanism). In doing so, states may 

adopt the Tailoring Rule thresholds— 

including certain features such as the 

definition of GHGs—or may adopt 

differently phrased requirements or 

lower thresholds, as explained earlier in 

this preamble, but this aspect of the 

state’s obligation does not, as 

commenters would have it, somehow 

take the requirement out of the SIP call 

process and place it in the 40 CFR 

51.166(a)(i) process. 

In addition, it is clear that the 

commenters are incorrect in their 

assertion that PSD applicability for 

GHGs must be delayed for the 3-year SIP 

submission period under 40 CFR 

51.166(a)(i) and in their related 

assertion that EPA’s efforts to apply the 

Tailoring Rule amount to unlawful 

retroactive application of regulatory 

requirements. The 3–year period does 

not apply to this requirement that PSD 

apply to GHG-emitting sources, as 

discussed earlier in this preamble; even 

more, by operation of the CAA, in 

conjunction with the LDVR, PSD 

applies to GHGs beginning on January 2, 

2011, with or without the Tailoring 

Rule. Again, the Tailoring Rule simply 

adds thresholds to limit that 

applicability.22

For similar reasons, commenters are 

also incorrect in arguing that CAA 

section 110(a)(1), which requires a SIP 

submittal ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe),’’ supports a 3-year period for 

the SIPs required under the SIP call and 

precludes PSD applicability during that 

period. Nothing in that provision 

overrides the operation of the CAA 

provisions, discussed elsewhere, which 

automatically apply PSD to newly 

regulated pollutants, and EPA’s 

regulations that codify those provisions, 

in conjunction with the LDVR, to mean 

that GHG-emitting sources are subject to 

PSD as of January 2, 2011. Moreover, 

this provision cannot override the SIP 

call provisions, which apply for reasons 

stated elsewhere. In any event, this 

provision does not mandate a 3-year 

period for SIP submittal; rather, the 

provision, by its terms, authorizes EPA 

to prescribe a shorter period. 

Another commenter is mistaken in 

making the somewhat similar assertion 

that ‘‘with regard to the SIP revisions 

required to accommodate any new 

regulated pollutant under the PSD 

program Section 166(b) of the Act 

allows the States 21 months. Any SIP 


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Call before the States have failed to meet 

that deadline is illegally premature.’’ 

The commenter is mistaken because (i) 

CAA section 166(b) by its terms applies 

only in the case of certain pollutants 

listed in CAA section 166(a) and 

pollutants for which NAAQS are 

promulgated and therefore does not 

apply to GHGs, and (ii) the D.C. Circuit 

held, in Alabama Power v. Costle, that 

the 21-month period does not toll the 

applicability of PSD requirements to 

pollutants, that is, that PSD 

requirements apply to pollutants during 

that period. 636 F.2d 323,406 (1980). 

Finally, the commenter erred in 

asserting that in the proposed SIP call, 

‘‘EPA characterized the Tailoring Rule as 

creating a PSD permit moratorium,’’ that 

EPA has no authority to impose such a 

moratorium, and therefore that no such 

moratorium can apply in the affected 

states. On the contrary, neither in the 

proposed SIP call nor anywhere else has 

EPA ‘‘characterized the Tailoring Rule as 

creating a PSD permit moratorium.’’ The 

commenter has not—nor could it— 

provide any citations to that effect. It is 

certainly true that EPA does not have 

authority to impose a blanket 

construction moratorium, and EPA has 

never claimed to the contrary. What 

EPA did say in the proposed SIP call is 

that GHG-emitting sources in states 

without authority to issue permits to 

those sources will face de facto 

obstacles to construction or 

modification. For example, EPA said 

that in such states, ‘‘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 * * *. ’’ 75 

FR at 53894/3. This statement remains 

valid. 

(III) Timing of finding of substantial 

inadequacy 

Some industry commenters also 

stated that EPA ‘‘cannot make [a finding 

of substantial inadequacy] until the 

January 2, 2011, date on which PSD 

permitting requirements for GHGs will 

[first] apply.’’ They explained that CAA 

section 110(k)(5) ‘‘does not describe the 

event of a ‘substantial inadequacy’ as an 

anticipated future occurrence, instead 

stating that EPA may issue a SIP call to 

any state with a SIP that ‘is substantially 

inadequate’ to comply with CAA 

requirements. The CAA does not 

provide EPA with a basis for * * * 

issu[ing] a SIP call because the agency 

expects to find that some states’ SIP will 

become ‘substantially inadequate’ at 

some later time.’’ (Emphasis in original.) 

We disagree with commenters’ 

reading of CAA section 110(k)(5). EPA 

is justified in finding that under CAA 

section 110(k)(5), each of the affected 

SIPs ‘‘is substantially inadequate’’ to 

comply with CAA requirements at the 

present time. 

In brief, under each of these SIPs’ 

current provisions, they will not apply 

PSD to GHG-emitting sources when, in 

only one month’s time, those sources 

will be subject to PSD under the CAA. 

Some lead time generally is required to 

revise SIPs. As a result, there is a 

meaningful risk in each of these states 

that, beginning in one month’s time, 

sources that are subject to PSD will not 

have a permitting authority available to 

process their permit applications and 

therefore will face delays in their 

construction and modification projects. 

This situation is not in keeping with one 

of the purposes of PSD, which is to 

protect the environment in a manner 

that reduces potential negative 

repercussions to economic growth. 

Consistent with that purpose, we 

interpret CAA section 110(k)(5) to 

authorize a finding at this time that the 

SIPs are substantially inadequate to 

comply with CAA requirements. 

Specifically, as discussed earlier in 

this preamble, under the terms of the 

CAA PSD applicability provisions, large 

sources become subject to PSD as soon 

as the pollutants they emit become 

subject to regulation. CAA section 

165(a)(1), 169(1). Accordingly, again as 

discussed earlier in this preamble, (i) 

the CAA requires that states assure that 

the PSD applicability provisions in their 

SIPs are automatically updating, (ii) 

EPA’s longstanding regulations 

incorporate this requirement, and (iii) 

EPA reiterated this regulatory 

requirement for automatic updating in 

the 2002 NSR Reform rule (see 67 FR 

80186, December 31, 2002), using 

different terminology, and required 

states to submit SIP revisions 

incorporating the requirement within 3 

years. The requirement for automatic 

updating is one of the foundations for 

the requirement that the SIPs affected by 

this action apply PSD to GHG-emitting 

sources as of January 2, 2011. 

These SIPs, under their present 

provisions, do not do so, and thus they 

will not apply PSD to GHG-emitting 

sources by January 2, 2011. If they do 

not, then no permitting authority will be 

available by January 2, 2011, and 

sources may face delays in obtaining 

permits to construct or modify. To 

assure the availability of a permitting 

authority, the SIPs must be revised and 

approved by EPA, or else a FIP must be 

put in place. This process requires some 

time, but again, until it is completed, 

sources face those delays. 

Delays in construction or 

modification solely due to the lack of a 

permitting authority to process 

applications are not consonant with the 

purposes of the PSD provisions. One 

purpose of the PSD provisions is to 

protect public health and the 

environment consistent with the 

promotion of economic development. 

See CAA section 160. In particular, CAA 

section 160(3) identifies as some of the 

purposes of PSD, ‘‘to insure that 

economic growth will occur in a manner 

consistent with the preservation of 

existing clean air resources.’’ 

The requirements of CAA section 

110(k)(5), as they apply to PSD SIPs, 

should be interpreted in that light. The 

DC Circuit has held that the terms of the 

PSD provisions should be interpreted 

with the PSD purposes in mind, New 

York v. EPA, 413 F.3d 3, 23(DC Cir.), 

rehearing en banc den., 431 F.3d 801 

(2005), and the same should be true of 

CAA section 110(k)(5) as applied to PSD 

requirements. Therefore, whether a SIP 

‘‘is substantially inadequate’’ under CAA 

section 110(k)(5) should be interpreted 

in light of the purposes of the PSD 

provisions, including the need to insure 

that economic growth will occur 

consistent with environmental goals. 

In this light, EPA concludes that each 

affected SIP ‘‘is substantially 

inadequate’’ at this time because it does 

not apply PSD to GHG-emitting sources, 

and only a month remains before those 

sources will become subject to the 

requirement to obtain a permit for their 

GHG emissions when they construct or 

modify. In light of the lead time 

required to revise the SIP or put in place 

a FIP, there is a substantial risk that no 

permitting authority will be in place to 

process permit applications, which 

would result in delays in PSD permit 

issuance. As a result, it is sensible and 

in keeping with the purposes of the PSD 

provisions to issue the SIP call at this 

time and thereby set in motion the 

process to establish a permitting 

authority. As noted elsewhere, with this 

approach, almost all of the affected 

states will have a permitting authority 

in place by January 2, 2011, or soon 

enough thereafter that any delay will 

not have substantial adverse effects on 

sources in the state. 

In contrast, under the commenter’s 

interpretation, EPA would be obliged to 

wait until January 2, 2011, when PSD 

begins to apply to GHG-emitting 

sources, before EPA could require 

corrective action. Under that approach, 

it is much more likely that sources in 

some states would find themselves 

subject to delays before they could 


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77710 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

23 ‘‘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). 

24 Declaration of Regina McCarthy, Coalition for 

Responsible Regulation v. EPA, DC Cir. No. 09– 

1322 (and consolidated cases) (McCarthy 

Declaration), Attachment 1, Tables 2–3, in the 

docket for this rulemaking. 

construct or modify, a result at odds 

with the purposes of the PSD 

provisions. 

b. Deadline 

(i) Final Action 

This action finalizes our proposal to 

establish for each state subject to the SIP 

call a deadline of 12 months from the 

date of the final SIP call to submit its 

corrective SIP revision, except that if the 

state informed EPA that it would not 

object to a specified shorter deadline— 

as short as 3 weeks from the date of this 

final action—then EPA would establish 

that shorter period as the SIP deadline. 

This 3-week-to-12-month time 

deadline, although expedited, meets the 

CAA section 110(k)(5) requirement of a 

‘‘reasonable deadline[].’’ The term 

‘‘reasonable’’ as it appears in that 

provision is not defined. Accordingly, it 

should be given its everyday meaning. 

The dictionary definition of the word 

‘‘reasonable’’ is ‘‘fair and sensible,’’ 

‘‘based on good sense,’’ or ‘‘as much as 

is appropriate or fair.’’ Oxford American 

College Dictionary 1138 (2d ed. 2007). 

Thus, a reasonable deadline is a time 

period that is sensible or logical, and 

that in turn depends on the facts and 

circumstances. Those facts and 

circumstances include (i) The SIP 

development and submission process, 

(ii) the preference of the state, and (iii) 

the imperative to minimize the period 

when sources will be subject to PSD but 

will not have available a PSD permitting 

authority to act on their permit 

application and therefore would be 

unable to construct or modify. 

First, as to the SIP development 

process, the 12-month outside time limit 

is reasonable because it is consistent 

with the time period required for SIP 

revisions in at least one previous SIP 

call that EPA issued, the NOx SIP Call.23

Moreover, a large number of states have 

indicated to EPA that they expect to 

submit their GHG SIP revisions within 

12 months. These states include some 

that are the subject of today’s SIP call 

action and others that already have PSD 

programs that apply to GHG-emitting 

sources and are submitting SIP revisions 

to incorporate the Tailoring Rule 

thresholds.24

At the state’s election, the deadline 

may be shorter than 12 months. We 

recognize that this period is expedited 

in light of the time involved in most SIP 

development and submission processes. 

In particular, we recognize that some 

states may need to undertake full-blown 

rulemaking actions, which often take a 

long time to complete, and we 

acknowledge that some states may need 

to change their statutory provisions, 

which may take even longer. Even so, 

we believe that under the circumstances 

present here, states may decide that a 

deadline shorter than 12 months is 

reasonable in light of emergency or 

other streamlined processes that may be 

used to significantly expedite action. 

The reasonableness of the shorter 

deadline is further supported because as 

a practical matter, for the most part, the 

affected states were given notice as early 

as August 12, 2010, when the proposed 

SIP call was signed and posted to the 

web (75 FR 53907), that they would 

likely need to submit, on a short 

timeframe, a SIP revision. Thus, these 

states will have had some three-and-ahalf months prior to the final SIP call 

date to have begun work on their SIP 

revisions. Indeed, many states have 

taken advantage of that time and have 

already begun to develop their SIP 

submissions, some have already 

submitted them in draft form for parallel 

processing, and some have submitted 

them in final form. Although this is a 

matter of state process, we are prepared 

to work with the states on our end to 

develop expedited methods for 

developing, processing, and submitting 

SIP revisions. 

Second, the flexibility in EPA’s 

structure for deadlines, including the 

opportunity for states to select shorter 

deadlines, is reasonable because it is 

based on the state’s preference. This is 

consistent with the federalism 

principles that underlie the SIP call 

process and the SIP system as a whole. 

That is, in the first instance, it is to the 

state to whom falls the responsibility of 

developing pollution controls through 

an implementation plan. Here, the 

deadline for the state to submit the plan 

can be as long as 1 year or as little as 

3 weeks, at the election of the state. In 

fact, almost all of the states have 

articulated a preference for a deadline, 

and among them, they are choosing—or 

at least not objecting to—deadlines that 

range from 3 weeks to 12 months. An 

earlier deadline under which the state 

must operate acts as a burden on the 

state, but if the state has chosen that, 

and thereby has declined the option of 

a longer deadline (e.g., 12 months), then 

the earlier deadline should be 

considered reasonable. 

Third, the need to give the states the 

opportunity 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 that supports the 

reasonableness of EPA’s schedule. 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. As 

noted earlier in this preamble, the 

purposes of the PSD provisions include 

both the protection of public health and 

the environment as well as the 

promotion of economic development. 

See, e.g., CAA section 160(3). 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 (DC 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 protect economic development, 

consistent with protecting clean air 

resources, by assuring the availability of 

a permitting authority to process permit 

applications. 

(ii) Response to comments 

Some industry commenters objected 

to this deadline on several grounds. 

Their first objection is that (i) EPA 

contends that EPA has the authority to 

impose a construction ban, (ii) in fact, 

EPA does not have that authority, but 

(iii) EPA is ‘‘using the phantom threat of 

a construction ban to intimidate states 

into immediately accepting GHG 

regulation. * * *’’ 

We disagree with the commenters’ 

objection. It is untrue that EPA 

somehow interprets the CAA to 

authorize EPA to apply a construction 

ban as a type of sanction to apply when 

a pollutant becomes subject to 

regulation, or that EPA has stated that 

it interprets the CAA that way. Rather, 

as discussed earlier in this preamble, it 

is by operation of the CAA provisions 

that as of January 2, 2011, large GHGemitting sources will be required to 

obtain permits to construct or modify. If 

these sources are located in a state with 

an approved PSD program that does not 

apply to GHGs, then no permitting 

authority may be available and, as a 

result, the sources may face delays in 

undertaking construction or 

modification projects. EPA is not 

seeking to intimidate states; rather, we 

wish to make sure states are fully aware 


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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77711 

25 In addition, the National Association of Clean 

Air Agencies (NACAA) recently reviewed the 30- 

day letters from the states and accurately 

summarized them in a report, ‘‘GHG Permitting 

Programs Ready To Go By January 2nd’’ (October 

28, 2010). This report is included as Attachment 3 

to the McCarthy Declaration. This report can be 

found in the docket for this rulemaking. In a few 

cases, the information EPA collected is more recent 

than what was available to NACAA because EPA’s 

information is based not just on the 30-day letters 

but also on conferring with the states. NACAA 

summarized its conclusions as follows: ‘‘Excepting 

only one, programs in all states [for which EPA 

proposed a SIP Call] have indicated that they will 

either revise their PSD rules by January 2, 2011 or 

very shortly thereafter, or accept a Federal 

Implementation Plan (FIP) that will give EPA 

authority to issue the GHG portion of PSD permits 

until state rules are revised. This provides that 

sources required to apply PSD controls to their GHG 

emissions will be able to obtain the necessary 

permits and avoid construction delays.’’ 

of this potential for delays in their 

sources’ ability to construct or modify, 

and we do wish to give states the option 

to allow an early FIP that will eliminate 

that potential for delays. As noted 

earlier in this preamble, some states are 

selecting an early SIP submittal 

deadline in order to allow an early FIP 

that will eliminate that potential, while 

other states are selecting a later SIP 

submittal deadline but are confident 

that their sources will not suffer 

damaging delays in the interim. 

Commenters also state that even with 

a SIP call, states should be given more 

than 12 months to submit their 

corrective SIP revisions. The 

commenters explain that a 12-month 

period is ‘‘much too brief’’ in light of the 

need for notice and comment at the state 

level in developing a SIP revision. Some 

commenters claim that the ‘‘‘default’ 

timeframe for allowing states to revise 

their SIPs due to a ‘substantial 

inadequacy’ with the SIPs’ ability to 

maintain NAAQS for a conventional 

pollutant is 18 months.’’ Some 

commenters state that ‘‘[b]ased on EPA’s 

SIP call precedent, a development 

period of up to three years would be 

appropriate.’’ Commenters also note that 

the legality of various aspects of the 

Tailoring Rule, including the revisions 

made by that rule to 40 CFR 51.166, has 

been challenged in the U.S. Court of 

Appeals for the DC Circuit, and the 

outcome of that litigation will not be 

known for some time. In such a setting, 

commenters state, even a December 

2011 SIP call deadline would be 

inconsistent with CAA section 110(k)(5) 

by not affording states a ‘‘reasonable’’ 

time to accomplish all that they would 

need to do in order to address the 

Tailoring Rule requirements. 

Another commenter concludes that 

‘‘[i]t was EPA’s choice (and EPA’s legal 

interpretation of the CAA) to require 

states to regulate GHGs under the states’ 

PSD and Title V permit programs; the 

agency must now give states a 

’reasonable’ period of time to comply 

free from onerous consequences if the 

states do not act within one month.’’ 

Other commenters also express 

concern that a deadline of 3 weeks 

cannot be considered ‘‘reasonable.’’ One 

state commenter (Kentucky) observes 

that the 3-week deadline departs from 

the ‘‘normal SIP Call process’’ and is 

‘‘impossibly aggressive for many 

agencies,’’ and the commenter 

recommends ‘‘a later date to allow states 

the ability to properly and adequately 

prepare to implement the new standards 

as has been done historically with every 

SIP Call in the past.’’ Another state 

commenter (Arkansas) notes that its 

standard rulemaking process is lengthy 

in comparison to the 3-week-to-12- 

month deadline EPA proposed and 

weighs against calling EPA’s deadline 

reasonable. 

According to a state commenter 

(Arkansas), ‘‘the need to keep state PSD 

permitting authority intact in order to 

act on permit applications would not be 

an issue but for the conglomeration of 

rules and timelines put into place by 

EPA to implement the regulation of 

GHG-emitting sources.’’ Responding to 

the proposed SIP call, Arkansas states 

that it does not object to the shortest SIP 

deadline of 3 weeks after the SIP call, 

in light of the precarious position that 

Arkansas sources would be in without 

the speedy issuance of a FIP. However, 

state officials remark that the deadline 

is not a preference but instead is more 

aptly described as a necessity under the 

circumstances created by EPA. 

With respect to the longer end of the 

schedule, as we explained earlier in this 

preamble, we consider the 12-month 

period to be adequate. We provided 12 

months for the NOX SIP Call 

rulemaking, and states were generally 

able to comply within that timeframe. 

Our information indicates that in 

virtually all cases, the affected states 

have begun to develop their SIP 

revisions already, and so far, almost all 

of the states are on track to submit their 

SIP revisions by December 1, 2011, even 

though many have indicated they do not 

object to an earlier deadline. 

Specifically, EPA regional and 

headquarters officials have conferred 

extensively with state officials 

concerning the states’ progress and 

plans.25 Based on the states’ 30-day 

letters and other communications with 

the states, 13 states operate PSD 

programs under SIPs that EPA identifies 

as lacking the authority to issue PSD 

permits for GHG emissions starting 

January 2, 2011. EPA expects that, of 

these 13 states (encompassing 15 state 

and local permitting agencies), 7 states 

(8 state and local permitting agencies) 

will be subject to a FIP by January 2, 

2011. One state, Texas, has not 

indicated a preference for a SIP 

submittal deadline—and so will receive 

the default deadline of December 1, 

2011—and has said that it does not 

intend to submit a SIP revision. EPA 

specifically requested of states for 

which we proposed the SIP call that 

they inform EPA of the period of time 

that they would accept as the deadline 

for submittal of their SIP revisions in 

response to a SIP call. See 75 FR at 

53901. Accordingly, EPA is planning 

additional actions to ensure that GHG 

sources in Texas, as in every other state 

in the country, have available a 

permitting authority to process their 

permit applications as of January 2, 

2011 (or, at the state’s election, a short 

period thereafter that the state has said 

will not impede the ability of sources to 

obtain permits in a timely way). 

With respect to the shorter end of the 

timetable, EPA recognizes commenters’ 

concerns about the 3-week period that 

states may elect but considers this 

period reasonable, under the particular 

circumstances presented, as discussed 

earlier in this preamble, including the 

facts that the states still retain some 

discretion in selecting that period and 

that at this point in time, that 3-week 

period is what some states may need to 

protect their sources from the potential 

delays due to the lack of a permitting 

authority, and any longer period would 

expose their sources to such delays. 

A commenter’s suggestion that EPA 

grant states ‘‘a ‘reasonable’ period of 

time to comply, free from onerous 

consequences if the states do not act 

within one month,’’ is not tenable. A 

longer period of time would not solve 

the problem that, absent the 

establishment of EPA or state authority 

to issue GHG PSD permits by January 2, 

2011, some sources in some states may 

experience obstacles to obtaining PSD 

permits authorizing construction or 

modification activities. 

As for the commenters’ concerns that 

it is EPA’s actions that have led to the 

timing issues, our response is that the 

timing issues arise because, on the one 

hand, the CAA requires that PSD 

applies to GHG-emitting sources as soon 

as EPA subjects GHGs to regulation, but, 

on the other hand, the affected states’ 

SIPs do not automatically apply PSD to 

GHG-emitting sources. As a result of the 

lack of automatic PSD applicability in 

those states, no permitting authority is 

available to issue permits to the GHGemitting sources until some rulemaking 

action—whether it is a SIP or a FIP— 

occurs that applies PSD to GHGVerDate Mar<15>2010 16:01 Dec 10, 2010 Jkt 223001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\13DER2.SGM 13DER2

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77712 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

emitting sources in that state and 

thereby establishes a permitting 

authority. This timing issue does not 

arise in the majority of states, because 

their SIPs do automatically apply to 

GHG-emitting sources as soon as EPA 

subjects GHGs to regulation. 

In this regard, we reiterate that EPA’s 

actions in promulgating the LDVR, 

which, in conjunction with the 

operation of the CAA, resulted in PSD 

applicability for GHGs, were fully 

consistent with the CAA. In addition, 

EPA has endeavored to provide as much 

time as possible to establish a 

permitting authority in the affected 

states by expeditiously implementing 

PSD applicability, including the 

Tailoring Rule and this rulemaking. 

More specifically, with respect to the 

timing for the LDVR, EPA promulgated 

that rule by notice dated May 7, 2010, 

and explained the timing as follows: 

EPA is issuing these final GHG standards 

for light-duty vehicles as part of its efforts to 

expeditiously respond to the Supreme 

Court’s nearly three year old ruling in 

Massachusetts v. EPA, 549 U.S. 497 (2007). 

In that case, the Court held that greenhouse 

gases fit within the definition of air pollutant 

in the Clean Air Act, and that EPA is 

therefore compelled to respond to the 

rulemaking petition under section 202(a) by 

determining whether or not emissions from 

new motor vehicles cause or contribute to air 

pollution which may reasonably be 

anticipated to endanger public health or 

welfare, or whether the science is too 

uncertain to make a reasoned decision. The 

Court further ruled that, in making these 

decisions, the EPA Administrator is required 

to follow the language of section 202(a) of the 

CAA. The Court stated that under section 

202(a), ‘‘[i]f EPA makes [the endangerment 

and cause or contribute findings], the Clean 

Air Act requires the agency to regulate 

emissions of the deleterious pollutant.’’ 549 

U.S. at 534. As discussed above, EPA has 

made the two findings on contribution and 

endangerment. 74 FR 66496 (December 15, 

2009). Thus, EPA is required to issue 

standards applicable to emissions of this air 

pollutant from new motor vehicles. 

The Court properly noted that EPA 

retained ‘‘significant latitude’’ as to the 

‘‘timing * * * and coordination of its 

regulations with those of other agencies’’ 

(id.). However it has now been nearly three 

years since the Court issued its opinion, and 

the time for delay has passed. 

75 FR at 25402/1. EPA went on to 

explain other reasons why it was 

necessary to promulgate the LDVR at 

that time. Id. at 25402/1–2. 

The LDVR, in conjunction with the 

operation of the CAA, resulted in the 

January 2, 2011, ‘‘take effect’’ date that 

is triggering PSD applicability for GHGemitting sources. Less than one month 

after the LDVR, by notice dated June 3, 

2010, EPA finalized the Tailoring Rule, 

and in that action, EPA requested states 

to advise EPA by letter within 60 days, 

or by August 2, 2010, whether their SIP 

PSD program applied to GHG-emitting 

sources. These letters helped indicate 

the number of states that lacked 

authority to apply PSD to GHG-emitting 

sources. Less than one month later, on 

September 2, 2010, EPA published the 

proposed SIP call and proposed FIP. 

EPA is now taking final action on the 

SIP call only 3 months after that. 

As a result of EPA’s expedited 

actions, states will have some 

opportunity to develop SIP revisions by, 

or soon after, the January 2, 2011, date. 

Some states began to develop their SIP 

revisions promptly following the SIP 

call proposal. As a result, they in fact 

are able to revise their SIPs within a 

very short timeframe. For example, of 

the states and localities for which EPA 

proposed the SIP call, EPA currently 

expects one state to have an approved 

SIP revision by January 2, 2011, and two 

more states (three local permitting 

agencies) to have one by February 1, 

2011. Other jurisdictions have SIP 

development processes that generally 

take longer but can still be 

accomplished well within the 12-month 

period. According to these particular 

states, a deadline that is later than 

January 2, 2011, does not pose a 

problem because they do not expect 

their sources to require permits from 

January 2, 2011, until their deadline. We 

believe that taken as a group, the 

affected states and local agencies have 

selected a range of deadlines that suit 

their individual circumstances and, we 

think, that evidences the reasonableness 

of the deadlines we are establishing. 

We note, finally, that our approach 

results in reasonable deadlines in light 

of the fact that states that select the FIP 

approach may immediately seek a 

delegation of authority to implement the 

FIP. Therefore, as a practical matter, 

there is little difference between 

processing GHG PSD permit 

applications under the authority of the 

state’s own SIP and processing such 

applications under the authority of a 

FIP. This is because if a state were to 

accept delegation, the state would be 

required to implement EPA regulations, 

including EPA regulatory requirements 

concerning BACT, but in many cases, 

these EPA regulatory BACT 

requirements are the same as BACT 

requirements in the state’s approved 

SIP. In addition, the state would 

inherently have a great deal of 

discretion in PSD permitting decisions 

because BACT determinations are made 

on a case-by-case basis that entails 

making judgments about a number of 

factors. 

2. State-Specific Actions 

In this section of the preamble, we 

summarize our basis for action for each 

of the states for which we are issuing a 

finding of substantial inadequacy and 

issuing a SIP call, as well as our basis 

for not issuing a finding or SIP call for 

any state for which we proposed to do 

so. We present a more detailed 

discussion in a Supplemental 

Information Document, which can be 

found in the docket for this rulemaking. 

The Supplemental Information 

Document includes all letters received 

from the affected states in response to 

our proposed action, as well as 

additional material that we collected 

and considered for this final action. 

In table IV–2, ‘‘Summary of Statespecific Actions in Finalizing SIP Call, 

by State,’’ we identify the states and 

areas affected in this final rule. 

TABLE IV–2—SUMMARY OF STATE-SPECIFIC ACTIONS IN FINALIZING SIP CALL, BY STATE

State (or area) Final SIP call status Basis for finding of substantial inadequacy 

SIP submittal 

deadline 

(MM/DD/YY) 

Alaska ...................................... No SIP call ............................. Not applicable. Already made SIP submittal to EPA. ............ Not applicable. 

Arizona: Pinal County ............. SIP call issued ....................... PSD applicability provision identifies specific pollutants but 

does not include GHG.

12/22/10. 

Arizona: Rest of State (Excludes Maricopa County, 

Pima County, and Indian 

Country).

SIP call issued ....................... PSD applicability provision identifies specific pollutants but 

does not include GHG.

12/22/10. 


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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77713 

26Following a 1997 review of our 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. 

However, some SIP PSD programs do not apply to 

PM2.5-emitting sources. To effect a smooth 

transition, EPA allowed states to use PM10 as a 

surrogate for PM2.5. EPA is not at present issuing 

a finding of substantial inadequacy under CAA 

section 110(k)(5) for such PSD programs. 

TABLE IV–2—SUMMARY OF STATE-SPECIFIC ACTIONS IN FINALIZING SIP CALL, BY STATE—Continued 

State (or area) Final SIP call status Basis for finding of substantial inadequacy 

SIP submittal 

deadline 

(MM/DD/YY) 

Arkansas ................................. SIP call issued ....................... PSD applicability provision incorporates by reference 40 

CFR 52.21, but it does not include GHG because it does 

not allow automatic updating.

12/22/10. 

California: Sacramento Metropolitan AQMD.SIP call issued ....................... PSD applicability provision identifies specific pollutants but 

does not include GHG.

01/31/11. 

Connecticut ............................. SIP call issued ....................... PSD applicability provision explicitly exempts ‘‘carbon dioxide.’’.03/01/11. 

Florida ..................................... SIP call issued ....................... PSD applicability provision identifies specific pollutants but 

does not include GHG.

12/22/10. 

Idaho ....................................... SIP call issued ....................... PSD applicability provision generally incorporates by reference 40 CFR 52.21, but it does not include GHG because it does not allow automatically updating.12/22/10. 

Kansas .................................... SIP call issued ....................... PSD applicability provision incorporates by reference 40 

CFR 52.21, but it does not include GHG because it does 

not allow automatic updating.

12/22/10. 

Kentucky: Louisville Metro Air 

Pollution Control District.

SIP call issued ....................... PSD applicability provision incorporates by reference 40 

CFR 52.21, but it does not include GHG because it does 

not allow automatic updating.

01/01/11. 

Kentucky: Rest of State (Excludes Louisville Metro Air 

Pollution Control District).

SIP call issued ....................... PSD applicability provision incorporates by reference 40 

CFR 52.21, but it does not include GHG because it does 

not allow automatic updating.

03/31/11. 

Nebraska ................................. SIP call issued ....................... PSD requirements lack clear authority to regulate GHG ....... 03/01/11. 

Nevada: Clark County ............. SIP call issued ....................... PSD applicability provision identifies specific pollutants but 

does not include GHG. Local agency-effective rule recently submitted for SIP approval does not include GHG 

because it does not allow automatic updating.

07/01/11. 

Oregon .................................... SIP call issued ....................... PSD applicability provision identifies specific pollutants but 

does not include GHG.

12/22/10. 

Texas ....................................... SIP call issued ....................... PSD applicability provision incorporates by reference 40 

CFR 52.21, but it does not include GHG because it does 

not allow automatic updating.

12/01/11. 

Wyoming ................................. SIP call issued ....................... State law prevents the state’s regulation of GHG ................. 12/22/10. 

C. Requirements for Corrective SIP 

Revision 

1. Application of PSD Program to GHGEmitting Sources 

Because EPA is issuing a finding of 

substantial inadequacy and issuing a 

SIP call for each state whose SIP fails to 

apply the PSD program to GHG-emitting 

sources, EPA is requiring the state to 

correct its SIP by submitting a SIP 

revision that applies PSD to GHGemitting sources. 

For those states whose PSD 

applicability provisions apply PSD to 

listed air pollutants, the state may 

accomplish this correction in one of at 

least two different ways. First, the state 

may revise its PSD applicability 

provisions so that, instead of applying 

PSD to sources of individually listed 

pollutants, the provisions apply PSD to 

sources that emit any ‘‘regulated NSR 

pollutant.’’ We recommend that states 

follow this ‘‘regulated NSR pollutant’’ 

approach. It is consistent with our 2002 

NSR Reform rule. See 67 FR at 80240. 

Moreover, the ‘‘regulated NSR 

pollutant’’ approach 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 may develop 

further through additional rulemaking. 

As explained in the Tailoring Rule, 

incorporation of 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.’’ 

There are other advantages to a state 

that adopts EPA’s definition of 

‘‘regulated NSR pollutant.’’ Doing so 

would resolve any issues about whether 

the state has authority to issue permits 

for sources of pollutants that EPA may 

subject to regulation for the first time in 

the future. In addition, the SIP would 

apply PSD to sources emitting PM2.5.26

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 would promote consistency and 

ease of administration. EPA’s reasons 

for recommending that states follow the 

‘‘regulated NSR pollutant’’ approach are 

explained in more detail in the proposal 

for this action (see 75 FR at 53903). 

As an alternative to the ‘‘regulated 

NSR pollutant’’ approach just described, 

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 the state takes this 

approach, it must either incorporate the 

Tailoring Rule thresholds or 

demonstrate adequate resources to 

administer lower thresholds. If a state 

chooses this approach, we will approve 

the SIP revision on the basis that the 

revision is SIP-strengthening, as we 

stated in the proposal (see 75 FR at 

53902). 

One state commenter (Connecticut) 

stated its understanding that ‘‘a SIPVerDate Mar<15>2010 16:01 Dec 10, 2010 Jkt 223001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\13DER2.SGM 13DER2

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strengthening approval is a form of 

limited approval that EPA uses for SIP 

submissions that meet only some of 

EPA’s requirements, but for which there 

is no portion that may be separated out 

and fully approved or fully 

disapproved.’’ 

The commenter believes its 

previously SIP-approved PSD program 

should be fully approvable, once the 

state revises its regulations to include 

GHGs in the list of pollutants subject to 

its PSD program, to add applicability 

thresholds for GHGs, and to add GHGs 

to the pollutants for which a BACT 

review is required. This state 

commenter points out what it sees as a 

contradiction if EPA approves such a 

SIP revision as merely a SIPstrengthening one. The contradiction is 

that in our proposal, according to the 

commenter, EPA ‘‘specifically notes that 

it is limiting the SIP Call to the failure 

to apply PSD to GHG-emitting sources, 

as distinguished from finding that a SIP 

is substantially inadequate.’’ The state 

commenter (Connecticut) strongly 

encourages EPA to ‘‘reconsider this 

distinction in approving state PSD 

programs and to fully approve any state 

program that addresses GHGs as set out 

in the Tailoring Rule, regardless of the 

format the state uses to revise its SIP.’’ 

We appreciate this comment and 

welcome the opportunity to clarify what 

we mean by a ‘‘SIP-strengthening’’ 

approval in this case. This type of 

approval constitutes a full approval of 

the SIP revision because it meets the 

requirements of the SIP call to submit a 

corrective SIP revision that applies PSD 

to GHG-emitting sources. In this case, 

there is no limited or partial approval. 

However, because this SIP revision 

otherwise leaves the PSD applicability 

provision as it stands and does not 

revise that provision to automatically 

update to cover any pollutant newly 

subject to regulation, we term our 

approval SIP-strengthening. 

Although we recommend that the 

states adopt the ‘‘regulated NSR 

pollutant’’ approach, we do not require 

it 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 are issuing the SIP call. 

Rather, that substantial inadequacy may 

be corrected more narrowly by listing 

GHGs. We note that CAA section 

110(k)(5) provides that ‘‘[w]henever the 

Administrator finds’’ that a SIP is 

substantially inadequate to meet CAA 

requirements, the Administrator shall 

require a SIP revision. This provision, 

by its terms—specifically, the use of the 

term ‘‘[w]henever’’—authorizes, but does 

not require, EPA to make the specified 

finding and does not impose any time 

constraints. As a result, EPA has 

discretion in determining whether and 

when to make the specified finding. See 

New York Public Interest Research 

Group v. Whitman, 321 F.3d 316, 330– 

31 (2d Cir. 2003) (opening phrase 

‘‘Whenever the Administrator makes a 

determination’’ in CAA section 502(i)(1) 

grants EPA ‘‘discretion whether to make 

a determination’’); Her Majesty the 

Queen in Right of Ontario v. EPA, 912 

F.2d 1525, 1533 (DC Cir. 1990) 

(‘‘whenever’’ in CAA section 115(a) 

‘‘impl[ied] a degree of discretion’’ in 

whether EPA had to make a finding). 

Accordingly, in this case, EPA is 

authorized to decide whether to issue 

the finding of substantial inadequacy on 

the basis of the SIP’s lack of automatic 

updating or the narrower basis of the 

SIP’s failure to apply PSD to GHGs. EPA 

chose the narrower basis because it 

addresses the immediate problem and 

because even states that do not adopt 

the automatic updating approach may 

nevertheless promptly take action to 

apply PSD to new pollutants and 

thereby avoid the problem of gaps in 

permitting authority. We caution, 

however, that in this case, if the state 

adopts the narrower approach of 

applying PSD to GHGs instead of the 

broader approach of applying PSD to 

‘‘regulated NSR pollutants’’ so that the 

SIP will be automatically updating, 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. 

For those states whose PSD 

applicability provisions apply PSD to 

regulated NSR pollutants, but whose 

SIPs or other state law limit that 

applicability to pollutants subject to 

regulation at or about the time the SIP 

provision was adopted by the state, the 

corrective SIP revision may accomplish 

the correction in one of several different 

ways. At a minimum, the state must 

revise its PSD applicability provision or 

other state law in such a manner that 

PSD applies to GHGs and either 

incorporates the Tailoring Rule 

thresholds or demonstrates adequate 

resources to administer lower 

thresholds. In addition, for many of the 

same reasons as discussed earlier in this 

preamble, we recommend—but do not 

require—that the state revise its PSD 

applicability provisions or other state 

law in such a manner that they (i) 

incorporate any future refinements to 

the Tailoring Rule thresholds that EPA 

may promulgate through its phase-in 

approach and (ii) will apply to any other 

pollutant that EPA newly subjects to 

regulation. 

2. Definition and Calculation of Amount 

of GHGs 

In its corrective SIP revision to apply 

PSD to GHGs, 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 at 31528. 

We proposed to require that the state 

define GHGs as just described, but we 

solicited 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 

cautioned that a definition that includes 

more gases than the six identified earlier 

in this preamble could prove to be less 

stringent in certain ways because such 

a definition could allow greater 

opportunities for a source of different 

gases to net out of PSD. 

One industry commenter stated that 

no state should be permitted to 

unilaterally adopt a definition of GHG 

that includes more gases than set forth 

in the Tailoring Rule. EPA did not 

receive any comments on the proposed 

rulemaking in support of a different 

definition. Accordingly, EPA is 

finalizing this requirement as proposed. 

3. Thresholds 

A state, in revising its SIP to apply 

PSD to GHG-emitting sources, may 

adopt the Tailoring Rule phase-in 

approach into its SIP and thereby 

exclude sources below the Tailoring 

Rule thresholds. Alternatively, the state 

may adopt lower thresholds, but if it 

does so, 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). 

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. If states wish to adopt the 

Tailoring Rule thresholds, they are not 

obligated to adopt the CO2e metric or 

use of short tons; however, the state 


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27Commenters add that a similar problem arises 

under title V, that is, that in a number of states, 

absent further action, large numbers of small 

sources will become subject to title V for the first 

time on account of their GHG emissions. The 

commenters conclude, ‘‘[t]his further shows why it 

is both puzzling and troubling that EPA would 

consider a state’s inability to issue a few permits 

with GHG limits in the first 6 months of 2011 a 

‘substantial inadequacy.’ ’’ EPA is also moving to 

address the title V issue commenters raise. EPA 

does not agree that deciding whether failure of the 

affected states’ SIPs to apply PSD to GHG-emitting 

sources constitutes a substantial inadequacy 

depends on the relative importance of the problem 

represented by that failure compared with the 

importance of the problem represented by the need 

for states to incorporate the Tailoring Rule 

thresholds into their title V programs (which in any 

event are generally not SIP-related). For reasons 

discussed elsewhere in this preamble, the failure of 

the SIPs to apply PSD to GHG-emitting sources 

constitutes a substantial inadequacy to meet a CAA 

requirement under CAA section 110(k)(5), 

regardless of how it may stack up against other 

problems that EPA and the states may face in 

implementation of the CAA. Moreover, for the 

reasons noted here, the commenters’ assertion that 

the scope of the problem represented by the affected 

states’ failure to apply PSD to GHG-emitting sources 

is limited to ‘‘a few permits with GHG limits in the 

first 6 months of 2011’’ underestimates the number 

of permits involved. 

must assure that its approach is at least 

as stringent as under the Tailoring Rule, 

so that the state does not exclude more 

sources than under the Tailoring Rule. 

In addition, as noted earlier in this 

preamble, a state retains the authority to 

adopt lower thresholds than in the 

Tailoring Rule, but if it does, it must 

demonstrate that it has adequate 

resources. 

D. Response to Procedural and Other 

Comments 

1. Approved SIP PSD Programs That 

Apply to GHG Sources 

Commenters state that, ‘‘[b]ased on its 

proposed rules, EPA has not fully 

considered the effect of its recent 

rulemakings on states and other 

jurisdictions that have indicated the 100 

tpy CO2e and 250 tpy CO2e thresholds 

apply to determine if GHGs trigger PSD 

under their SIP rules.’’ The commenters 

emphasize that ‘‘more than a dozen 

agencies implementing CAA permitting 

requirements will need to revise their 

regulations to incorporate EPA’s tailored 

thresholds for GHGs and may be unable 

to do so before the Tailoring Rule’s 

January 2, 2011, effective date. After 

that, these agencies could each be 

potentially overwhelmed by permit 

applications from many newly-covered 

emissions sources, essentially halting 

construction within the agencies’ 

jurisdictions.’’ The commenters observe 

that ‘‘[t]he Proposed SIP Call and 

Proposed FIP fail to discuss the 

economic consequences of this problem 

of the lower thresholds or to 

acknowledge that EPA has created this 

situation in the first instance.’’ The 

commenters state that ‘‘EPA should be 

focused on addressing this problem 

rather than the comparatively minor 

issue of whether a state that will not 

face this onslaught can include GHG 

emission limits in a few permits each 

year.’’ The commenters add that states 

face difficult implementation issues as 

they incorporate the elements of the 

Tailoring Rule into their SIPs. 

These comments have no legal 

relevance to the SIP call because the 

states that are the focus of these 

commenters are not subject to the SIP 

call. We wish to note, however, that in 

fact, EPA is addressing expeditiously 

and comprehensively precisely the 

problems identified by the commenters. 

When EPA proposed the Tailoring Rule, 

EPA recognized and discussed at length 

these problems, that is, the fact that 

absent further action, in states with 

approved PSD programs that apply to 

GHG-emitting sources, those sources at 

the 100/250-tpy thresholds would be 

required to obtain preconstruction 

permits. We identified the problems that 

would result. We proposed to address 

the federal law element of this problem 

by narrowing our approval of those SIP 

PSD programs to only the part of them 

that applied to GHG-emitting sources at 

or above the Tailoring Rule thresholds. 

74 FR at 55340–44. 

Moreover, in the final Tailoring Rule, 

we remained mindful of this problem. 

We noted that, on the basis of 

teleconferences with states, we had 

decided to fashion the regulatory 

changes to implement the Tailoring 

Rule in a manner that would expedite 

state adoption of the Tailoring Rule 

thresholds. 75 FR at 31580–81. In 

addition, we asked states to tell us in 

letters to be submitted within 60 days 

after the Tailoring Rule how they 

planned to implement GHG permitting 

requirements and the Tailoring Rule, 

and we decided to delay final action on 

our proposal to narrow previous SIP 

approvals until we heard from the 

states. 75 FR at 31582. Having received 

and reviewed the states’ responses, we 

intend to finalize the proposal in the 

Tailoring Rule to narrow EPA approval 

by January 2, 2011. That rule will assure 

that sources below the Tailoring Rule 

thresholds will not be subject to a 

Federal law requirement to obtain PSD 

permits due to their GHG emissions. 

Finally, we have worked closely with 

the states on this issue. We have 

encouraged them to interpret, when 

possible, their PSD applicability 

provisions to include the Tailoring Rule 

thresholds, so that no further action on 

their part is necessary, and a significant 

number of states are able to do so. In 

addition, we have encouraged the states 

that need to revise their laws to 

incorporate the Tailoring Rule 

thresholds to do so as quickly as 

possible, so that as of January 2, 2011, 

or as soon as possible thereafter, sources 

below the Tailoring Rule thresholds will 

not be subject to a state law requirement 

to obtain PSD permits due to their GHG 

emissions. A large number of states have 

indicated that they will be able to take 

that step by January 2, 2011, on at least 

an emergency basis. Accordingly, we are 

in fact addressing quickly and 

comprehensively the problems 

presented by the fact that, absent further 

action, sources of GHGs below the 

Tailoring Rule thresholds may trigger 

PSD requirements as of January 2, 

2011.27

2. Opportunity for Notice and Comment 

Some industry commenters objected 

that because EPA provided ‘‘lengthy 

requests’’ for information to states for 

which it proposed the SIP call, and 

stated that it would use this information 

to determine which states should 

receive a SIP call, commenters would 

not have an opportunity to comment on 

that information, even though EPA 

would be relying on it for the basis of 

its final action. Commenters stated, 

‘‘EPA is using the proposed rule to 

create the analysis to eventually support 

its SIP call,’’ which is ‘‘inconsistent with 

both Section 307(d) procedures and the 

Administrative Procedure Act.’’ 

We disagree with the commenters. In 

the proposed rulemaking, EPA proposed 

to find that, as a legal matter, the PSD 

applicability provisions in the SIPs for 

13 states did not apply to GHG-emitting 

sources, and EPA provided citations to, 

and discussion of, each affected state’s 

SIP or other relevant state law 

provision, as well as the views of each 

state on the issue. This was adequate 

notice to give commenters the 

opportunity to comment. EPA solicited 

as much information as possible about 

each state’s laws so that the final action 

would be fully in accordance with state 

law, and it is certainly conceivable that 

EPA might receive information that 

would form part of the basis of its final 

action. Indeed, that is the very purpose 

of notice-and-comment rulemaking. 

Even so, it is well established that the 

mere fact that EPA solicited comment 

and could receive some information that 

would form part of the basis of the final 

action does not mandate another round 

of notice-and-comment; otherwise, 

agencies would find themselves caught 

up in continual do-loops of notice-andcomment, with each comment period 


emcdonald on DSK2BSOYB1PROD with RULES2
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28 In addition, commenters are mistaken in 

assuming that the reason why we did not propose 

to issue the SIP call for Wyoming was an 

‘‘inadvertent[]’’ omission. We proposed or solicited 

comment based on the information available at the 

time. 

29Some commenters objected to, and others 

supported, parallel processing. We discuss those 

comments in the Supplemental Information 

Document, although we note that those comments 

are not relevant to any legal issues in this 

rulemaking. 

30Proposed rule, ‘‘Action To Ensure Authority To 

Issue Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Federal Implementation Plan.’’ 75 

FR 53883 (September 2, 2010). The notice can be 

found in the docket for this rulemaking, at 

Document ID No. EPA–HQ–OAR–2010–0107–0045. 

yielding information that, as 

commenters would have it, would 

necessitate yet another comment period. 

Commenters state that ‘‘[r]emarkably, 

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 for EPA to finalize 

a finding of substantial inadequacy and 

a SIP call for such states would be 

improper because we did not provide 

adequate notice and opportunity for 

comment. 

We disagree with the commenters. In 

the proposal, EPA listed in the 

‘‘presumptive adequacy list’’ the states 

with approved SIP PSD programs for 

which EPA was not proposing a finding 

of substantial inadequacy and a SIP call, 

and we included citations to the 

relevant SIP provisions, but we went on 

to specifically solicit comment on 

whether each of those states merited a 

finding and SIP call. Moreover, EPA 

generally described the circumstances 

under which those states may merit a 

finding and SIP call. As a result, 

commenters had adequate notice that 

EPA could ultimately finalize a finding 

and SIP call for those states, and they 

could have commented if they had 

relevant views or information. As it 

turns out, we are finalizing a SIP call for 

only one state, Wyoming, for which we 

solicited comment. In response to our 

proposal’s presumption of the adequacy 

of the Wyoming SIP with respect to 

applying PSD requirements to GHG 

sources, we received comments from the 

state’s Governor, from the state’s 

Department of Environmental Quality, 

and from industry and environmental 

commenters. Our proposal clearly 

provided adequate notice to these 

stakeholders so they could provide 

comment.28

3. Federal Implementation Plan 

Some comments address the timing 

and other aspects of the FIP. Those 

comments are not relevant to this rule; 

therefore, EPA will not discuss them 

here but will discuss them in the final 

FIP rulemaking. 

V. SIP Submittals 

A. EPA Action: Findings of Failure To 

Submit and Promulgation of FIPs; 

Process for Action on Submitted SIPs 

1. Actions on SIP Submittals 

For any of the 13 states subject to this 

action, if the state submits the required 

SIP revision by its 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. 

Because PSD applicability for certain 

GHG sources begins January 2, 2011, 

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 concerning its 

GHG emissions 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. 

One key opportunity to expedite 

approval is that we will parallel-process 

the SIP submittal upon request of the 

state. 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 the state 

publishes its proposed approval of that 

draft SIP revision. While the state is 

taking public comment on its proposed 

SIP revision, 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 

parallel-processing approach in past 

rulemakings, and we believe that 

employing it in this process could 

significantly shorten the time EPA 

needs to act on the SIP revision. Several 

states have already submitted drafts of 

their GHG-related SIP revisions for 

parallel processing and EPA has already 

proposed to approve those SIP 

revisions. These states include Alabama, 

Kentucky, Tennessee, North Carolina, 

and Mississippi.29

2. Findings of Failure To Submit and 

Promulgation of FIPs 

If the state does not meet its SIP 

submittal deadline, we intend to 

immediately issue a finding of failure to 

submit a required SIP submission under 

CAA section 110(c)(1)(A) and intend to 

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. 

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 discussed this 

approach in our proposed FIP 

rulemaking.30

B. Streamlining the State Process for SIP 

Development and Submittal 

In the proposal, we recognized that 

the deadline we are giving states to 

submit their SIP revisions is 

expeditious, and we stated that we were 

prepared to work with the states to 

develop methods to streamline the state 

administrative process, although we 

recognized that the states remain fully 

in charge of their own state processes. 

We solicited recommendations during 

the comment period for ways that the 

states and we may streamline the state 

process for adopting and submitting 

these SIPs and to streamline or simplify 

what is required for the SIP submittal. 

In the proposal, we noted as an 

example of possible streamlining 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). In the proposal, EPA 


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solicited 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. If so, EPA will not require a 

separate SIP hearing. 

Two state commenters (Arkansas and 

Connecticut) favor this approach. One 

commenter (Connecticut) notes that 

because of the similarity in the required 

minimum public participation 

procedures, it has used this approach in 

the past and understands that it will 

significantly shorten the length of both 

its regulatory and SIP processing. The 

state commenter added that, in cases 

where it adopted a similar public 

hearing streamlining process as being 

proposed by EPA, it has been careful to 

provide adequate published notice 

concerning both the SIP revision and 

state regulatory adoption aspects of its 

public hearings and has thus avoided 

unnecessary time and expenses incurred 

in published notices, waiting for 

comments, and holding public hearings. 

We appreciate the commenters’ 

observations. A state meets its CAA 

requirements as long as it holds a 

hearing on the SIP revision and gives 

adequate notice of that hearing. EPA 

believes that, under the CAA, the state 

has discretion to combine any other 

hearing required at the state level— 

including a hearing on the state law 

provision—with the hearing on the SIP 

revision and, again, as long as the state 

provides adequate notice of that 

hearing, the state will meet CAA 

requirements in this regard. Because of 

the self-evident efficiencies in 

combining those types of hearings, we 

continue to encourage states to consider 

this approach. 

C. Primacy of the SIP Process 

We reiterate, as we stated in the 

proposal, that this action is secondary to 

our overarching goal, which is to assure 

that in every instance, it will be the state 

that will be the permitting authority. 

EPA continues to recognize that the 

states are best suited to the task of 

permitting because the states 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, we have continued to 

work closely with the states to help 

them promptly develop and submit to 

us their corrective SIP revisions that 

extend their PSD program to GHGemitting sources. Some of the states 

have submitted drafts of their SIP 

revisions for parallel processing, and 

some have submitted their adopted SIP 

revisions for approval. We will act 

promptly on their SIP submittals and we 

have already proposed to approve some 

of the 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 issuing this SIP call and preparing to 

finalize, as necessary, the 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 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 is proceeding with 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 

associated FIP action fulfill the CAA 

requirements to establish EPA in that 

role. 

At the same time, we take these 

actions with the intent that states retain 

as much discretion as possible. In this 

rulemaking, we have authorized states 

to 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, although 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. 

It is clear from the responses states 

made to our request in the proposal to 

advise us concerning the appropriate 

deadline for SIP submittal, and also 

from states’ comments on the proposal, 

that officials in many states recognize 

the need for our SIP call and FIP 

actions, that is, 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 

(Kansas; Arizona’s Pinal County) have 

already indicated in their responses that 

they will accept delegation of the 

permitting responsibilities. 

D. Effective Date 

This rule is effective immediately 

upon publication in the Federal 

Register. Section 553(d) of the 

Administrative Procedure Act (APA), 

5 U.S.C. 553(d), generally provides that 

rules may not take effect earlier than 30 

days after they are published in the 

Federal Register. However, APA section 

553(d)(3) provides an exception when 

the agency finds good cause exists for a 

rule to take effect in less than 30 days. 

We find good cause exists here to 

make this rule effective upon 

publication because implementing a 30- 

day delayed effective date would 

interfere with the Agency’s ability to 

ensure that, as of January 2, 2011, there 

is a permitting authority authorized to 

issue certain major stationary sources in 

the affected states the required PSD 

permits for GHG emissions. A 30-day 

delay in the effective date of this rule 

will impede implementation of this rule 

and create regulatory confusion. This 

rule establishes, for each affected state, 

a date by which the state must submit 

a corrective SIP revision; after that date, 

EPA may issue a FIP. This rule sets that 

deadline for some states as December 

22, 2010, and this rule states that if a 

state does not meet that deadline, EPA 

will issue a finding of failure to submit 

a required SIP revision and issue a FIP 

on December 23, 2010. This will allow 

the FIP to be published and become 

effective by the January 2, 2011, date 

that PSD will first apply to GHGemitting sources under the CAA. It is 

unclear whether EPA could impose 

these deadlines if this rule had a 30-day 

effective date, resulting in confusion 


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77718 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

about when the deadlines would take 

effect. Plus, if EPA could not impose 

those deadlines, for whatever reason, 

then, as of January 2, 2011, certain 

major stationary sources in the affected 

states would be required to obtain PSD 

permits for GHG emissions that no 

permitting authority would be 

authorized to issue. Thus it would be 

impractical to wait 30 days to provide 

a regulatory mechanism to avoid the 

confusion that could result if this rule 

is not effective upon publication. 

Moreover, EPA finds that it is necessary 

to make this rule effective upon 

publication to avoid any economic harm 

that the public and the regulated 

industry might incur if there is no 

permitting authority able to issue PSD 

permits for GHG emissions on January 

2, 2011. 

The purpose of the APA’s 30-day 

effective date provision is to give 

affected parties time to adjust their 

behavior before the final rule takes 

effect. The states for which the rule sets 

short deadlines have each indicated in 

comment letters to EPA that they do not 

object to those deadlines; states with 

longer deadlines will, in fact, have more 

than 30 days to react to this rule. Both 

the states and the public have been 

aware of this impending final rule for 

some time, as it was made available to 

the public on August 12, 2010, even 

before its September 2, 2010, 

publication date in the Federal Register, 

and the public was afforded the 

opportunity to comment on the 

proposal. 75 FR 53892. The public has 

also been aware of the timeline for this 

action, since the proposed rule stated 

that the rule would be finalized on 

December 1, 2010, and that it may set 

dates for state action as early as 

December 22, 2010. See 75 FR 53892, 

53896. 

In addition, this rule is not a major 

rule under the Congressional Review 

Act (CRA). Thus, the 60-day delay in 

effective date required for major rules 

under the CRA does not apply. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory action’’ 

because it raises novel legal or policy 

issues. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. 

However, 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 rule 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. 

After considering the economic 

impacts of this final 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 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. This final rule 

will not impose any requirements on 

small entities. 

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. EPA 

refers to the definition of a small 

governmental jurisdiction that the 

Regulatory Flexibility Act uses, which is 

a government of a city, county, town, 

school district, or special district with a 

population of less than 50,000. Thus, 

this rule only applies to large state and 

local permitting programs and not to 

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 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). 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 final rule, EPA 

specifically solicited additional 

comment on the proposal for this action 

from tribal officials and we received one 

comment from a tribal agency. 

Additionally, EPA participated in a 

conference call on July 29, 2010, with 

the National Tribal Air Association 

(NTAA). 


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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77719 

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 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 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 states that do 

not meet their existing obligation for 

PSD SIP submittal. 

K. 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 

December 13, 2010. 

VII. Judicial Review 

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 

February 11, 2011. Any such judicial 

review is limited to only those 

objections that are 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. 

VIII. 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 

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 

hexafluoride, Sulfur oxides, Volatile 

organic compounds. 

Dated: December 1, 2010. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2010–30854 Filed 12–10–10; 8:45 am] 

BILLING CODE 6560–50–P 


emcdonald on DSK2BSOYB1PROD with RULES2