82254 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

review is limited to only those 

objections that were raised with 

reasonable specificity in timely 

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

the Act, the requirements of this final 

action may not be challenged later in 

civil or criminal proceedings brought by 

us to enforce these requirements. 

VI. Statutory Authority 

The statutory authority for this action 

is provided by sections 110, 165, 301, 

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

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

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

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

7407(d)). 

List of Subjects in 40 CFR Part 52 

Air pollution control, Carbon dioxide, 

Carbon dioxide equivalents, Carbon 

monoxide, Environmental protection, 

Greenhouse gases, Hydrofluorocarbons, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Methane, Nitrogen dioxide, Nitrous 

oxide, Ozone, Particulate matter, 

Perfluorocarbons, Reporting and 

recordkeeping requirements, Sulfur 

hexafluoride, Sulfur oxides, Volatile 

organic compounds. 

Dated: December 23, 2010. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.1987 is revised to read 

as follows: 

§ 52.1987 Significant deterioration of air 

quality. 

* * * * * 

(d) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met for greenhouse gases since the plan 

does not include approvable procedures 

for permitting major sources of 

greenhouse gas emissions. Therefore, 

the Oregon Department of 

Environmental Quality rules identified 

in paragraph (a) of this section, and the 

Lane Regional Air Pollution Authority 

rules identified in paragraph (b) of this 

section, are hereby incorporated by 

reference with the following changes 

and made part of the applicable plan for 

the State of Oregon: 

(1) The definition of ‘‘Regulated NSR 

pollutant’’ at § 52.21(b)(50) and the 

definition of ‘‘Subject to regulation’’ at 

§ 52.21(b)(49) are incorporated by 

reference, replacing the definition of 

‘‘Regulated air pollutant’’ at OAR 340– 

200–0020(97), for the purpose of 

greenhouse gases only; 

(2) The provisions of § 52.21(q) Public 

participation are incorporated by 

reference for the purposes of EPA 

permits issued pursuant to this 

paragraph; and 

(3) All references to ‘‘Director’’ in the 

Oregon Department of Environmental 

Quality rules and the Lane Regional Air 

Pollution Authority rules incorporated 

in this paragraph shall mean the EPA 

Administrator for the purposes of EPA 

permits issued pursuant to this 

paragraph. 

■ 3. Section 52.37 is added to read as 

follows: 

§ 52.37 What are the requirements of the 

Federal Implementation Plans (FIPs) to 

issue permits under the Prevention of 

Significant Deterioration requirements to 

sources that emit greenhouse gases? 

(a) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met to the extent the plan, as approved, 

of the states listed in paragraph (b) of 

this section does not apply with respect 

to emissions of the pollutant GHGs from 

certain stationary sources. Therefore, 

the provisions of § 52.21 except 

paragraph (a)(1) are hereby made a part 

of the plan for each state listed in 

paragraph (b) of this section for: 

(1) Beginning January 2, 2011, the 

pollutant GHGs from stationary sources 

described in § 52.21(b)(49)(iv), and 

(2) beginning July 1, 2011, in addition 

to the pollutant GHGs from sources 

described under paragraph (a)(1) of this 

section, stationary sources described in 

§ 52.21(b)(49)(v). 

(b) Paragraph (a) of this section 

applies to: 

(1) Arizona, Pinal County; Rest of 

State (Excludes Maricopa County, Pima 

County, and Indian Country); 

(2) Arkansas; 

(3) Florida; 

(4) Idaho; 

(5) Kansas; 

(6) Wyoming. 

(c) For purposes of this section, the 

‘‘pollutant GHGs’’ refers to the pollutant 

GHGs, as described in § 52.21(b)(49)(i). 

[FR Doc. 2010–32784 Filed 12–29–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 70 

[EPA–HQ–OAR–2009–0517; FRL–9245–4] 

RIN 2060–AQ63 

Action To Ensure Authority To 

Implement Title V Permitting Programs 

Under the Greenhouse Gas Tailoring 

Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final Rule. 

SUMMARY: The final greenhouse gas 

(GHG) Tailoring Rule includes a stepby-step implementation strategy for 

issuing Federally-enforceable permits to 

the largest, most environmentally 

significant sources beginning January 2, 

2011. In this action, EPA is finalizing its 

proposed rulemaking to narrow EPA’s 

previous approval of State title V 

operating permit programs that apply 

(or may apply) to GHG-emitting sources. 

Specifically, in this final rule, EPA is 

narrowing its previous approval of 

certain State permitting thresholds for 

GHG emissions so that only sources that 

equal or exceed the GHG thresholds 

established in the final Tailoring Rule 

would be covered as major sources by 

the Federally-approved programs in the 

affected States. By raising the GHG 

thresholds that apply title V permitting 

to major sources in the affected States, 

this final rule will reduce the number of 

sources that will be issued Federallyenforceable title V permits and thereby 

significantly reduce permitting burdens 

for permitting agencies and sources 

alike in those States. 

DATES: This final rule is effective on 

December 30, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2009–0517. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. 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, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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

copy at the EPA Docket Center EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Avenue, Northwest, 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82255 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the EPA Docket Center is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jeff Herring, Air Quality Policy Division, 

Office of Air Quality Planning and 

Standards (C504–03), Environmental 

Protection Agency, Research Triangle 

Park, NC 27711; telephone number: 

(919) 541–3195; fax number: (919) 541– 

5509; e-mail address: 

herring.jeff@epa.gov. 

SUPPLEMENTARY INFORMATION: 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 

Branch, 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. 

I. General Information 

A. Does this action apply to me? 

Entities affected by this action include 

States, local permitting authorities, and 

Tribal authorities. 

Entities potentially affected by this 

rule also include sources in all industry 

groups, which have a direct obligation 

under the Clean Air Act (CAA or Act) 

to apply for and operate pursuant to a 

title V permit for GHGs that meet the 

applicability thresholds set forth in the 

Tailoring Rule. The majority of entities 

potentially affected by this action are 

expected to be in the following groups: 

Industry group NAICSa

Agriculture, fishing, and hunting ............................................................... 11. 

Mining ....................................................................................................... 21. 

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. 


srobinson on DSKHWCL6B1PROD with RULES
82256 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

1Only the title V provisions are relevant for this 

action. 

2The permitting threshold originally proposed for 

the Tailoring Rule was 25,000 tpy CO2e. After 

considering public comment on the proposal, EPA 

increased its estimates of the costs and burdens of 

permitting and finalized a permitting threshold of 

100,000 tpy CO2e. 

Industry group NAICSa

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 this 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 this preamble organized? 

II. Overview of the Final Rule 

III. Proposed Rule 

IV. Final Rule 

A. Narrowing of Title V Programs Under 

Parts 70 and 52 

B. Legal Basis 

1. Title V Applicability 

2. Minimum Requirements for Approved 

Title V Programs 

3. Basis for Reconsideration and Narrowing 

of Approval 

C. Authority for EPA Action 

V. Comments and Responses 

VI. Effective Date 

VII. Statutory and Executive Orders Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211—Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Judicial Review 

II. Overview of the Final Rule 

This action finalizes EPA’s proposal 

to narrow the approval of title V 

operating permit programs that we 

included in what we call the proposed 

Tailoring Rule, ‘‘Prevention of 

Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule: 

Proposed Rule,’’ 74 FR 55292, 55340 

(October 27, 2009). EPA finalized the 

Tailoring Rule by Federal Register 

notice dated June 3, 2010, ‘‘Prevention 

of Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule: Final 

Rule,’’ 75 FR 31,514. 

In the final Tailoring Rule, EPA 

narrowed the applicability of title V to 

GHG-emitting sources at or above 

specified thresholds by setting 

thresholds at which GHG emissions 

become subject to regulation for 

Prevention of Significant Deterioration 

(PSD) and title V purposes.1 Title V 

requires all ‘‘major sources,’’ and certain 

other sources, to apply for and operate 

pursuant to an operating permit, which 

is generally issued by a State or local 

permitting authority pursuant to an 

approved State title V program. As 

discussed in more detail subsequently, 

‘‘major source’’ under title V includes 

any source that emits, or has the 

potential to emit, 100 tons per year (tpy) 

or more of any air pollutant. Under 

EPA’s longstanding interpretation, 

codified in the final Tailoring Rule, this 

requirement applies to emissions of air 

pollutants ‘‘subject to regulation.’’ 

Absent the Tailoring Rule, GHGs would 

become ‘‘subject to regulation’’ for title 

V purposes on January 2, 2011. Under 

the Tailoring Rule, however, a source 

becomes a ‘‘major source’’ subject to title 

V requirements based on its GHG 

emissions only if, as of July 1, 2011, it 

emits GHGs at or above 100,000 tpy 

measured on a carbon dioxide 

equivalent (CO2e) basis, and it also 

emits GHGs at levels at or above the 

statutory 100 tpy mass-based threshold 

generally applicable to all pollutants 

subject to regulation. The Tailoring Rule 

thresholds alleviate the overwhelming 

administrative burdens and costs that 

using the statutory thresholds alone for 

the permitting thresholds would place 

on title V permitting authorities and 

sources. 

However, in proposing the Tailoring 

Rule, EPA recognized that even after it 

finalized the Tailoring Rule, some 

approved State title V programs 

would—until they were revised— 

continue to use the statutory thresholds 

for purposes of the permitting 

thresholds, even though the States 

would not have sufficient resources to 

implement the title V program at those 

levels. Accordingly, the proposed 

Tailoring Rule included a proposal to 

limit EPA’s previous approval of title V 

programs to the extent those provisions 

required permits for sources whose 

emissions of GHG equal or exceed 100 

tpy but are less than the permitting 

threshold of the Tailoring Rule.2 When 

EPA finalized the Tailoring Rule, EPA 

did not finalize that part of the proposal. 

Instead, EPA waited to collect more 

information from the States to 

determine whether such action was 

necessary, and if so, for which States. 

As detailed in the following, EPA is 

now finalizing that part of the Tailoring 

Rule proposal for most permitting 

authorities. 

EPA asked States to submit 

information—in the form of letters due 

within 60 days of publication of the 

Tailoring Rule (which we refer to as the 

60-day letters)—that would help EPA 

determine whether it needed to narrow 

its approval of any title V programs. 

Some States informed EPA in their ‘‘60 

day letters’’ or subsequently that they 

have adequate authority to issue permits 

to sources of GHGs and that they have 

interpreted the requirements of their 

approved title V programs consistent 

with the final Tailoring Rule thresholds. 

Other States and permitting authorities 

either indicated that their programs 

would require changes to permit GHG 

sources at the final Tailoring Rule 

thresholds, or did not provide a clear 

indication of the scope of their title V 

programs with respect to GHG sources. 

Thus, in this action, EPA is narrowing 

its previous approval of most State title 

V programs to the extent the programs 

require title V permits for sources of 

GHG emissions below the Tailoring 

Rule thresholds. The other portions of 

these title V programs, including 

portions requiring permits for 

GHG-emitting sources with emissions at 

or above the Tailoring Rule thresholds, 

remain approved. States affected by this 

rule will not be required to take any 

action under the Federal CAA as a result 

of this rule. 

The effect of EPA narrowing its 

approval in this manner is that there 

will be no Federally-approved title V 

program that requires permits for 

sources due to emissions of GHG below 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82257 

3 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

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

(December 15, 2009). 

4 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

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

finalizes EPA’s response to a petition for 

reconsideration of ‘‘EPA’s Interpretation of 

Regulations that Determine Pollutants Covered by 

Federal Prevention of Significant Deterioration 

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

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

5 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 6 ‘‘Prevention of Significant Deterioration and 

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

75 FR 31514 (June 3, 2010). 

the final Tailoring Rule threshold of 

100,000 tpy CO2e (and 100 tpy mass 

basis). This action ensures that the 

Federally-approved programs applicable 

in the affected States do not require title 

V permitting for sources due to their 

status as major sources of GHG 

emissions as of January 2, 2011. 

III. Proposed Rule 

We assume familiarity here with the 

statutory and regulatory background 

discussed in the preambles for the 

Tailoring Rule proposal and final action, 

and will only briefly summarize that 

background here. 

Title V of the CAA requires, among 

other things, a ‘‘major source’’ to obtain 

an operating permit that: consolidates 

all CAA requirements applicable to the 

source into a document; includes 

conditions necessary to assure 

compliance with such requirements; 

provides for review of these documents 

by EPA, States, and the public; and 

requires permit holders to track, report, 

and annually certify their compliance 

status with respect to their permit 

requirements. 

A ‘‘major source’’ is defined to 

include, among other things, a source 

that actually emits or has the potential 

to emit 100 tpy or more of ‘‘any air 

pollutant.’’ CAA sections 501(2), 302(j). 

See also 40 CFR 70.2 and 71.2. Since 

1993, EPA has interpreted the CAA to 

define a ‘‘major source’’ for purposes of 

title V to include any source that emits, 

or has the potential to emit, at least 100 

tpy of an air pollutant subject to 

regulation under the CAA. 

Memorandum from Lydia N. Wegman, 

Deputy Director, Office of Air Quality 

Planning and Standards, U.S. EPA, 

‘‘Definition of Regulated Air Pollutant 

for Purposes of Title V’’ (Apr. 26, 1993); 

75 FR 31553–54. 

In recent months, EPA completed four 

distinct actions related to regulation of 

GHGs under the CAA. These actions 

include, as they are commonly called, 

the ‘‘Endangerment Finding’’ and ‘‘Cause 

or Contribute Finding,’’ which we issued 

in a single final action,3 the ‘‘Johnson 

Memo Reconsideration’’ (also called the 

‘‘Timing Decision’’),4 the ‘‘Light-Duty 

Vehicle Rule’’ (LDVR, or simply the 

‘‘Vehicle Rule’’),5 and the ‘‘Tailoring 

Rule.’’ 6 In the Endangerment Finding, 

which is governed by CAA § 202(a), the 

Administrator exercised her judgement, 

based on an exhaustive review and 

analysis of the science, to conclude that 

‘‘six greenhouse gases taken in 

combination endanger both the public 

health and the public welfare of current 

and future generations.’’ 74 FR 66496. 

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).’’ 

Id. The Endangerment Finding led 

directly to promulgation of the Vehicle 

Rule, also governed by CAA § 202(a), in 

which EPA set standards for the 

emission of GHGs for new motor 

vehicles built for model years 2012– 

2016. 75 FR 25324. The other two 

actions, the Timing Decision and the 

Tailoring Rule, governed by the PSD 

and title V provisions in the CAA, were 

issued to address the automatic 

statutory triggering of these programs for 

GHGs due to the establishment of the 

first controls for GHGs under the Act. 

More specifically, the Timing Decision 

reiterated EPA’s interpretation that only 

pollutants subject to regulation under 

the Act can trigger major source status 

for purposes of title V, and further 

concluded that the earliest date GHG 

would be subject to regulation for 

purposes of title V would be January 2, 

2011. The Tailoring Rule established a 

series of steps by which PSD and title 

V permit requirements for GHG could be 

phased in, starting with the largest 

sources of GHG emissions. 75 FR 31514. 

In the proposed Tailoring Rule, EPA 

proposed a major stationary source 

threshold for purposes of title V of 

25,000 tpy for GHG on a CO2e basis, for 

at least a specified period. EPA 

recognized that even so, approved State 

title V programs would—until they were 

revised—continue to use the statutory 

threshold of 100 tpy for GHG on a mass 

basis for purposes of the permitting 

threshold, even though permits for 

sources below the Tailoring Rule 

threshold were not required under 

Federal regulations and the States 

would not have sufficient resources to 

implement the title V program at the 

statutory threshold for GHG-emitting 

sources. This would result in the same 

problems of overwhelming 

administrative burdens and costs that 

we designed the Tailoring Rule to 

address. Accordingly, the proposed 

Tailoring Rule included a proposal to 

limit EPA’s previous approval of title V 

programs to the extent those provisions 

required permits for sources whose 

emissions of GHG equal or exceed 100 

tpy but are less than the permitting 

threshold of the Tailoring Rule. 

EPA relied for its authority for the 

proposed limitations of approval on 

CAA section 301(a), as it incorporates 

the authority of an agency to reconsider 

its actions, and in the Administrative 

Procedure Act (APA) section 553. See 

74 FR 55345. EPA indicated in the 

proposal that it considered and decided 

against issuing a notice of deficiency 

under CAA section 502(i)(1), in part 

because EPA did not anticipate that 

program submissions would be 

necessary following EPA’s action to 

limit approvals. 74 FR 55345–55346. 

In the final Tailoring Rule, EPA 

adopted a 100,000 tpy CO2e permitting 

threshold for title V permitting of GHG 

emissions as of July 1, 2011, committed 

the agency to take future steps 

addressing smaller sources, and 

excluded the smallest sources from title 

V permitting for GHG emissions until at 

least April 30, 2016. 

The mechanism EPA chose in the 

final rule to implement the 100,000 tpy 

CO2e threshold for GHG emissions was 

slightly different than what EPA had 

proposed. In response to comments 

from States, in place of providing a 

definition in part 70 of ‘‘major source’’ 

with thresholds specific to GHG 

sources, the final Tailoring Rule 

amended the definition of ‘‘major 

source’’ to reflect EPA’s long-standing 

interpretation that applicability for 

‘‘major stationary source’’ under CAA 

sections 501(2)(B) and 302(j) and 40 

CFR 70.2 and 71.2 is triggered by 

sources of pollutants ‘‘subject to 

regulation.’’ EPA then reflected the 

permitting thresholds for GHGs within a 

definition of the term ‘‘subject to 

regulation’’ that was also added to parts 

70 and 71. 

Some States advised EPA that they 

would likely be able to implement the 

Tailoring Rule thresholds by 

interpreting provisions in their 

approved title V programs. A State’s 

implementation of the Tailoring Rule in 

this manner would obviate the need for 

EPA to narrow its approval of the State’s 

title V program. Thus, in the final 

Tailoring Rule, EPA deferred making 

any decision regarding whether to 

narrow its approval of any title V 

programs until after learning how States 

intended to implement the Tailoring 

Rule. Rather than taking final action on 


srobinson on DSKHWCL6B1PROD with RULES
82258 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

7 40 CFR 70.2 defines ‘‘State’’ to include any nonFederal permitting authority, including local, 

interstate and statewide permitting authorities, and 

also including the District of Columbia, the 

Commonwealth of Puerto Rico, and U.S. territories, 

although ‘‘[w]here such meaning is clear from the 

context, ‘State’ shall have its conventional 

meaning.’’ This notice follows the same approach to 

the use of the term ‘‘State.’’ 

our proposal to limit approval for State 

title V programs, EPA asked States to 

submit information—in the form of 

letters due within 60 days of publication 

of the final Tailoring Rule (which we 

refer to as the 60-day letters)—that 

would help EPA determine what action 

it would need to take to ensure that 

GHG sources would be permitted 

consistent with the final Tailoring Rule, 

and specifically for which States it 

would need to limit its approval of State 

title V programs. 

Almost all States submitted 60-day 

letters. After reviewing the letters, some 

States have indicated that they have 

been able to interpret their existing 

approved title V programs in a manner 

consistent with the final Tailoring Rule. 

Other permitting authorities indicated 

that they needed regulatory or 

legislative changes either to implement 

title V permitting for GHG sources, or 

else to apply the final Tailoring Rule 

thresholds when they implement title V 

permitting for GHG sources. Some 

States indicated that some regulatory or 

legislative changes to their title V 

programs were necessary, but did not 

clearly indicate which types of changes 

were required. In some cases, the State’s 

60-day letter addressed PSD permitting 

but not title V permitting, or else did not 

clearly distinguish between the two 

programs in discussing how the State 

intended to implement permitting of 

GHG sources. Finally, a few States did 

not submit 60-day letters. 

Most States that need to take some 

action indicated that they were actively 

in the process of updating their title V 

programs to be consistent with the final 

Tailoring Rule. Indeed, many programs 

were projected, as of the date of the 60- 

day letter, to be revised to incorporate 

the Tailoring Rule threshold at the State 

level before January 2, 2011. 

IV. Final Rule 

A. Narrowing of Title V Programs Under 

Parts 70 and 52 

EPA is taking final action to narrow 

its approval of the title V program for 

certain States. In the final Tailoring 

Rule, EPA established levels of GHG 

emissions for purposes of determining 

applicability of title V. However, most 

EPA-approved State title V programs 

currently provide that sources of GHGs 

will become subject to title V 

requirements even where the sources 

emit GHGs below the final Tailoring 

Rule thresholds. Under the final 

Tailoring Rule, GHGs emitted below the 

Tailoring Rule thresholds are not treated 

as a pollutant ‘‘subject to regulation’’ 

under the CAA (and thus, under the 

final Tailoring Rule, a source emitting 

GHGs below the Tailoring Rule 

thresholds would not be treated as a 

major stationary source subject to title V 

on account of its GHG emissions). Thus, 

EPA is now narrowing its approval of 

most approved title V programs so that 

those title V programs are approved to 

apply to GHG-emitting sources only if 

those sources emit GHGs at or above the 

final Tailoring Rule thresholds. EPA is 

accomplishing this by reconsidering and 

narrowing its previous approval of those 

title V programs to the extent they apply 

to GHG-emitting sources that emit 

below the final Tailoring Rule 

thresholds. 

In the proposed Tailoring Rule, EPA 

proposed to narrow its approval for all 

50 States, as well as the District of 

Columbia, Puerto Rico, and the U.S. 

Virgin Islands.7 EPA now finalizes this 

narrowing of approval for the States 

with title V programs that will apply to 

GHG emissions at below-Tailoring Rule 

levels as of January 2, 2011, and for 

States that EPA cannot clearly 

determine do not fall in this category. 

The States for whom EPA is narrowing 

its approval of the title V program in 

this action are: Alabama, California, 

Colorado, District of Columbia, Georgia, 

Hawaii, Illinois, Iowa, Kansas, 

Louisiana, Maine, Maryland, Minnesota, 

Mississippi, Missouri, Nebraska, 

Nevada, New Hampshire, New York, 

Ohio, Oklahoma, Pennsylvania, Rhode 

Island, South Carolina, South Dakota, 

Tennessee, Utah, Vermont, Virgin 

Islands, Virginia, Washington, West 

Virginia, and Wisconsin. For all the 

other States—States with no authority to 

permit sources due to their status as 

major sources of GHG or States which 

apply the Tailoring Rule thresholds by 

interpretation—EPA is not taking final 

action on its proposal to narrow its 

approval of the title V program at this 

time because those States will not 

subject GHG sources with emissions 

below the Tailoring Rule thresholds to 

the requirements of title V on January 2, 

2011. 

For most States, title V programs are 

Federally-approved only under 40 CFR 

part 70, and EPA need only amend 

Appendix A to part 70 in order to 

narrow its approval of the title V 

program. However, in some cases, States 

have chosen to submit their title V 

programs as part of their State 

implementation plans (SIPs) and EPA 

has approved those programs into the 

SIP as codified in 40 CFR part 52. Three 

States [Arizona (Pinal County Air 

Quality Control District)], Minnesota, 

and Wisconsin) whose title V programs 

require narrowing have title V 

applicability provisions that were 

Federally approved under both part 70 

and part 52. For these States, EPA is 

amending its approval of the title V 

program in both part 70 and part 52, in 

order to ensure that the scope of the 

approved title V program is consistent 

in both parts. 

B. Legal Basis 

EPA is narrowing its previous 

approval for most State title V programs 

because of an important flaw in the 

approved title V programs. EPA is 

rescinding its previous approval for the 

part of the title V program that is 

flawed, and EPA is leaving in place its 

previous approval for the rest of the 

program. Since there is no need under 

Federal law to permit sources below the 

final Tailoring Rule threshold, the title 

V programs whose approval is being 

narrowed by this action will continue to 

be fully approved under CAA section 

502. 

Among the minimum requirements 

for a title V program are those for 

‘‘adequate personnel and funding to 

administer the program.’’ CAA section 

502(b)(4). These requirements need to 

be understood in context of Congress’ 

clear concern for ‘‘the need for 

expeditious action by the permitting 

authority on permit applications and 

related matters.’’ CAA section 502(b)(8); 

see also CAA sections 502(b)(6), 

502(b)(7), & 503(c), 40 CFR 70.4(b)(8). 

The flaw in the prior approved 

programs is that certain program 

provisions were phrased so broadly that 

they could, under certain 

circumstances, sweep in more sources 

than the permitting authority could 

process in an expeditious manner in 

light of the resources that were available 

or could be made available. Thus, EPA 

is narrowing the scope of its approval of 

those title V provisions to include, for 

purposes of GHG emissions, only title V 

permitting for sources emitting GHGs at 

or above final Tailoring Rule thresholds. 

EPA believes permitting at these 

thresholds will require resources at a 

level consistent with the descriptions of 

adequate resources the State provided, 

and EPA determined in the final 

Tailoring Rule that States will have 

adequate resources to issue operating 

permits to sources emitting GHGs at this 

level. 

As noted above, for three States it is 

necessary to revise the SIP in order to 


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8 If a State with an approved title V program lacks 

any authority to permit sources that are major 

sources subject to title V as a result of their GHG 

emissions, then there is no title V permit program 

‘‘applicable to the source’’ and those sources in that 

State have no obligation to apply for a title V permit 

until after such time as a permit program becomes 

applicable to them. See CAA section 503(a). EPA 

intends to work with States, through program 

revisions, notices of deficiency and/or application 

of the Federal title V program, in order to assure 

that major sources of GHGs in all States are subject 

to title V programs. 

9Likewise, if a State did not provide sufficient 

information to EPA in a 60-day letter and it turned 

out that the State could apply the permitting 

thresholds of the final Tailoring Rule under its 

existing approved title V program, there would be 

no harm to the permitting authority or sources as 

a result of EPA’s decision to narrow its approval 

consistent with the final Tailoring Rule thresholds. 

narrow the approved title V program. 

The basis for narrowing the program is 

the same under part 52 as under part 70. 

Indeed, EPA does not believe it would 

make sense to narrow its approval under 

part 70 without also narrowing its 

approval under part 52. Accordingly, for 

these States EPA is not only exercising 

its authority to reconsider its approval 

of the title V program, but also its 

authority to reconsider and to correct 

errors in its approval of a SIP. 

EPA is narrowing its approval of the 

title V programs for all States that have 

indicated that they have authority under 

their title V programs to issue permits 

to sources of GHG emissions, but at the 

statutory level of 100 tpy or more on a 

mass emissions basis. As a 

precautionary measure, EPA is also 

narrowing its approval for States that 

did not clearly indicate to EPA whether 

they are in this situation. EPA 

recognizes that the actual status of the 

States subject to this rule varies to some 

degree; while some States have 

authority to issue permits to sources due 

to their emissions of GHGs under their 

title V programs but at the statutory 

threshold only, other States may have 

been able to alter their State regulations 

but have not yet submitted such changes 

or had them approved by EPA, and still 

other States did not provide a 60-day 

letter with sufficient information to 

determine the status of their title V 

permit programs in relation to GHG 

sources. EPA believes it is appropriate 

to narrow the approved title V program 

for all of these States. In the case of 

programs that have made State-level 

changes but have not yet received EPA 

approval for those changes, this 

approach provides an efficient means of 

ensuring that at no time is there a 

requirement under a Federally-approved 

program for sources below the final 

Tailoring Rule threshold to obtain a 

permit. For this reason, as a 

precautionary matter, EPA is narrowing 

approval for States that did not inform 

us that they can implement the 

thresholds in the final Tailoring Rule 

under their current approved programs. 

Some States may lack authority to 

require permits for GHG sources at all. 

Where there is clear and unambiguous 

evidence that such State programs do 

not require permits for any sources due 

to their status as a major source of GHG 

emissions, EPA is not narrowing such 

programs, because they do not present 

the flaw discussed previously.8 There 

may be some States that similarly lack 

authority to issue title V permits to 

sources due to their status as major 

sources of GHG emissions, but have not 

clearly articulated that fact to EPA in 

their 60-day letters. EPA intends to 

narrow its approval for all States where 

the status of the title V program in 

relation to major sources of GHG is 

unclear. Although it may turn out that 

some of these programs do not present 

the flaw discussed previously, EPA is 

only narrowing its approval of programs 

‘‘to the extent’’ they require sources of 

GHG in excess of the threshold to apply 

for title V permits as major sources of 

GHG. Thus, if indeed a State’s program 

does not require permits for these 

sources at all, there are no consequences 

to sources or the permitting authority 

from EPA’s decision to narrow the scope 

of the State’s approval.9 On the other 

hand, if EPA were to refrain from 

narrowing its approval, and then learn 

that the program indeed does require 

sources that emit or have the potential 

to emit 100 tpy or more of GHGs on a 

mass basis to apply for title V permits, 

there would be significant adverse 

consequences for the permitting 

authority and sources, as described 

previously in this final rule and in the 

final Tailoring Rule. Accordingly, EPA 

is refraining from narrowing the title V 

programs for States that cannot 

implement the Tailoring Rule 

thresholds only if EPA is certain that 

those State programs do not require 

permits for sources due to their 

emissions of GHG. 

The following section discusses these 

issues in more detail, beginning with 

the title V applicability provisions; then 

the minimum State program 

requirements; and then how the two, 

read together, gave rise to the flaws in 

the approved State title V programs. 

1. Title V Applicability 

Each of the States subject to this rule 

has an approved title V operating 

permits program and has not clearly 

indicated to EPA that it has the ability 

to permit sources of GHG consistent 

with the thresholds in the final 

Tailoring Rule. In most of these States, 

the approved title V program contains 

applicability provisions that are written 

broadly to include all pollutants subject 

to regulation under the CAA for the 

purposes of determining whether a 

source is a major source covered by the 

title V operating permits program. As a 

result, as soon as EPA promulgates a 

rule regulating a new pollutant under 

any provision of the CAA, these title V 

programs expand to cover additional 

sources that are major for that new 

pollutant. Depending on the pollutant, 

and the number and size of sources that 

emit it, these applicability provisions 

could result in a required significant 

and rapid expansion of the title V 

program. This is precisely what is 

happening at present, now that GHG 

will become subject to regulation under 

CAA section 202(a) and will become 

subject to PSD when emitted from 

certain stationary sources starting on 

January 2, 2011. 

Importantly, the States affected by 

this action do not interpret their 

applicability provisions or any other 

provision in the title V programs to 

incorporate any limits on title V 

applicability with respect to new 

pollutants, and the programs do not 

contain any other mechanism that 

would allow the State to interpret 

applicability more narrowly, at least for 

GHGs. As a result, the affected States’ 

title V applicability provisions include 

no way to limit the speed or extent of 

the expansion a title V program might 

be required to undergo to address new 

pollutants. 

This sudden expansion of permitting 

responsibilities is precisely what is now 

happening in the case of GHGs. As 

described in the Timing Decision and 

final Tailoring Rule, GHG will become 

subject to regulation on January 2, 2011. 

EPA defined GHGs as the group of six 

air pollutants made up of carbon 

dioxide, methane, nitrous oxide, sulfur 

hexafluoride, hydrofluorocarbons, and 

perfluorocarbons. 75 FR 31514, 31519 

(June 3, 2010) (Tailoring Rule 

discussion); 75 FR 25324 (May 7, 2010) 

(LDVR). Absent the limits of the final 

Tailoring Rule, sources that emit or have 

the potential to emit at least 100 tpy of 

GHGs would be potentially subject to 

title V permitting as of that date. EPA 

does not have information showing that 

the approved title V programs in States 

subject to this rule can interpret their 

programs more narrowly, to apply to 

only GHG-emitting sources at or above 

the final Tailoring Rule thresholds. In 

contrast, as noted elsewhere, several 

other States are able to interpret their 

title V programs more narrowly and, as 

a result, are not subject to this action. 


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10As stated earlier, States included in this rule 

are in this situation, or else EPA currently lacks 

sufficient information to determine that they are not 

in this situation. 

The scale of the administrative 

program needed to effectively permit all 

sources emitting GHGs at the 100 tpy 

level has highlighted the unconstrained 

nature of the title V program’s 

applicability provisions. EPA has 

recognized that immediately subjecting 

major sources of GHGs at the 100 tpy 

level to title V requirements is 

administratively unmanageable and 

creates absurd results that were not 

intended by Congress when it enacted 

title V. Thus, in the final Tailoring Rule, 

EPA implemented limits on when GHGs 

become ‘‘subject to regulation’’ for 

purposes of title V, such that emissions 

of GHGs will not trigger major source 

status, and thus will not trigger title V 

permit requirements, unless the source 

emits both 100 tpy of GHG on a mass 

basis and 100,000 tpy CO2e of GHG as 

of July 1, 2011 or later. EPA included 

this limit in its regulations, and through 

this limit greatly reduced the extent of 

title V applicability. This limit was set 

at a level at which EPA determined 

States would have the resources to 

implement a title V program for GHG 

emissions. By contrast, the approved 

State programs that are subject to this 

rule do not incorporate the thresholds of 

the final Tailoring Rule. As a result, 

many or all of these State programs 

implement title V applicability for GHG 

sources more broadly—indeed, much 

more broadly, to far more sources and 

to much smaller sources—than EPA’s 

regulations do. This is problematic to 

the extent it may interfere with the 

State’s ability to meet minimum 

requirements for title V programs, as 

discussed in the following section. 

2. Minimum Requirements for 

Approved State Title V Programs 

Each of the States subject to this rule 

submitted a title V program for 

approval. In order to be approved by 

EPA, the State program was required to 

meet certain minimum requirements 

laid out in the CAA and in 40 CFR part 

70. One of these requirements, 

contained in section 502(b)(4), specifies 

that every program must provide ‘‘for 

adequate personnel and funding to 

administer the program.’’ These 

requirements are further detailed in 40 

CFR 70.4(b)(6) through (b)(8). 

As noted previously in this rule, and 

in the Tailoring Rule, the CAA also 

contains several other provisions 

making clear Congress’ intent that title 

V permits be processed in an 

expeditious manner, and these are 

likewise reflected in 40 CFR part 70. See 

generally CAA section 502 and 40 CFR 

70.4. 

Therefore, at the time that the State 

submitted the title V program for EPA 

approval, the title V program was 

required to include assurances that 

adequate resources would be available 

to process title V permits in an 

expeditious manner, according to the 

requirements of the CAA and part 70. 

The title V programs affected by this 

action, however, will not be able to meet 

these minimum requirements for a title 

V program as a result of their 

applicability to GHG-emitting sources. 

In the proposed and final Tailoring 

Rule, EPA stated that on a nationwide 

basis, applying title V to GHG-emitting 

sources at the 100 tpy level will result 

in far greater numbers of sources (over 

6 million) requiring permitting than 

currently do (about 15,000), and the 

great majority of these additional 

sources would be smaller than the 

sources currently subject to title V. EPA 

added that the administrative burdens 

associated with permitting these large 

numbers of small sources would 

overwhelm the affected permitting 

authorities. As a result, for each State, 

EPA proposed to rescind approval of the 

part of the title V program that applies 

title V to GHG-emitting sources below 

the Tailoring Rule thresholds. During 

the comment period on this proposal, 

no authority contested this 

understanding of the facts, none stated 

that it could administer title V at the 

100 tpy levels, and none contested the 

proposal on grounds that it has adequate 

resources. In the final Tailoring Rule, 

EPA refined, on the basis of comments, 

the precise extent of the administrative 

burden, but confirmed that the burden 

was overwhelming and that States 

lacked adequate resources. As noted 

above, in the final Tailoring Rule, EPA 

requested that States submit letters 

within 60 days of publication of the rule 

describing how they intended to 

implement title V for GHG-emitting 

sources. In those letters, none of the 

States claimed they could, or intended 

to, implement the approved title V 

program at the statutory levels. From all 

this, it is clear that none of the States 

had included in the title V program 

submitted for approval an adequate plan 

or strategy to assure resources to 

administer the title V program for their 

GHG-emitting sources at the 100 tpy 

level. 

We note that there is nothing 

inherently problematic with a title V 

program submission that did not 

include the previously-described plan to 

acquire additional resources. Only title 

V programs that lack appropriate 

constraints to limit title V applicability 

for new pollutants (consistent with 

Federal law) to match their resources 

must be narrowed to include such 

constraints.10

3. Basis for Reconsideration and 

Narrowing of Approval 

Based on the previous analysis, it is 

clear that EPA’s approval of the title V 

programs subject to this action was 

flawed. They each are structured in a 

manner that may impose a title V 

permitting requirement on sources of 

pollutants newly subject to regulation 

under the Act without limitations, and 

yet they do not have a plan for acquiring 

resources to adequately permit large 

new categories of sources. As explained 

previously, the combination of these 

title V programs’ broader applicability 

to additional stationary sources that 

emit pollutants newly subject to 

regulation, and the failure of the 

approved title V program to plan for 

adequate resources for that broader 

applicability—and to ensure that 

permits could be issued consistent with 

the requirements for expeditious 

processing of permit applications—is a 

flaw in these programs. In short, the title 

V program applicability provisions and 

the assurances provided in the State 

program submission are mismatched 

and therefore EPA needs to reconsider 

its approval of these programs. As 

discussed previously, EPA’s recently 

promulgated GHG rules have 

highlighted this flaw. 

It may be true that at the time the 

affected States submitted their State 

programs for approval, the precise 

course of events that have recently 

transpired concerning GHGs and that 

have exposed the mismatch between 

title V applicability and State 

assurances may have been difficult to 

foresee. Even so, it could have been 

generally foreseen that the breadth of 

the affected State program applicability 

provisions, combined with the 

programs’ limited State assurances, was 

at least a potential mismatch that could 

eventually lead to title V applicability 

greatly outstripping permitting authority 

resources. EPA does not believe it is 

required to wait for that to occur, and 

then issue a Notice of Deficiency (NOD), 

to address the issue. Rather, this is a 

flaw in the title V programs that 

provides a basis for EPA to reconsider 

its approval. 

In the proposed Tailoring Rule, EPA 

proposed to narrow its approval for all 

approved State programs. EPA now 

finalizes this narrowing of approval for 

only the States which have indicated 


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11EPA notes that where an approved State 

program includes multiple permitting authorities, 

EPA is narrowing the approved State program if any 

permitting authority requires narrowing. 

12See CAA section 307(d) (omitting title V 

program approvals from the list of specific types of 

rulemakings under the CAA not subject to the 

APA). 

13For additional case law, see Belville Mining Co. 

V. United States, 999 F.2d 989, 997 (6th Cir. 1993); 

Dun & Bradstreet Corp. v. United States Postal 

Service, 946 F.2d 189, 193 (2d Cir. 1991); Iowa 

Power & Light Co. v. United States, 712 F.2d 1292 

(8th Cir. 1983). 

that their title V programs will apply to 

sources that emit or have the potential 

to emit at least 100 tpy of GHG as of 

January 2, 2011, or for which EPA has 

not been able to clearly establish 

whether or not the program will apply 

to such sources. The States for which 

EPA is narrowing its approval of the 

approved State title V program in this 

action include: Alabama, California, 

Colorado, District of Columbia, Georgia, 

Hawaii, Illinois, Iowa, Kansas, 

Louisiana, Maine, Maryland, Minnesota, 

Mississippi, Missouri, Nebraska, 

Nevada, New Hampshire, New York, 

Ohio, Oklahoma, Pennsylvania, Rhode 

Island, South Carolina, South Dakota, 

Tennessee, Utah, Vermont, Virgin 

Islands, Virginia, Washington, West 

Virginia, and Wisconsin. For each of 

these States, EPA is finalizing an 

amendment to Appendix A of 40 CFR 

part 70 that will state ‘‘For any 

permitting program located in the State, 

insofar as the permitting threshold 

provisions concern the treatment of 

sources of GHG emissions as major 

sources for purposes of title V, EPA 

approves such provisions only to the 

extent they require permits for such 

sources where the source emits or has 

the potential to emit at least 100,000 tpy 

CO2e, as well as 100 tpy on a mass basis, 

as of July 1, 2011.’’ 11 EPA is also 

finalizing very similar language in the 

SIPs of Arizona, Minnesota and 

Wisconsin in order to ensure that the 

federally approved title V program in 

each of these States is appropriately 

narrowed under part 52 as well as part 

70. The language being used for this 

final narrowing rule reflects minor 

changes from the language proposed in 

the Tailoring Rule in order to clarify and 

reflect the decisions about permitting 

thresholds reached in the final Tailoring 

Rule. 

EPA notes that the following States 

have stated either that they can permit 

major sources of GHG in their approved 

title V program consistent with the 

Tailoring Rule thresholds or that they 

have no authority under their current 

approved title V program to permit 

sources due to their status as major 

sources of GHG: Alaska, Arkansas, 

Arizona, Connecticut, Delaware, 

Florida, Idaho, Indiana, Kentucky, 

Massachusetts, Michigan, Montana, 

New Jersey, New Mexico, North 

Carolina, North Dakota, Oregon, Puerto 

Rico, Texas, and Wyoming. 

Accordingly, it is not necessary at 

present to narrow the title V program 

approval for these States. As noted 

previously, EPA intends to work with 

these States as necessary, through 

program revisions, notices of deficiency 

and/or application of the Federal title V 

program, to assure that major sources of 

GHGs in all States are subject to title V 

programs, but only at the Tailoring Rule 

thresholds. 

C. Authority for EPA Action 

EPA has determined that this flaw in 

the approved State programs warrants 

reconsideration of the prior program 

approvals, and narrowing of those 

approvals. EPA believes it may 

reconsider its prior actions under 

authority inherent in CAA section 502, 

with further support from CAA section 

301(a), and the reconsideration 

mechanisms provided under CAA 

section 307(b) and APA section 

553(e).12 In addition, with respect to the 

two SIP revisions, EPA has authority to 

correct errors in SIP approvals, as well 

as to reconsider them. 

In approving the State programs 

under CAA 502(d), EPA retained 

authority to revise that action. The 

courts have found that an administrative 

agency has the inherent authority to 

reconsider its decisions, unless 

Congress specifically proscribes the 

agency’s discretion to do so. See, e.g., 

Gun South, Inc. v. Brady, 877 F.2d 858, 

862 (11th Cir. 1989) (holding that 

agencies have implied authority to 

reconsider and rectify errors even 

though the applicable statute and 

regulations do not provide expressly for 

such reconsideration); Macktal v. Chao, 

286 F.3d 822, 826–26 (5th Cir. 2002); 

Trujillo v. General Electric Co., 621 F.2d 

1084, 1086 (10th Cir. 1980) 

(‘‘Administrative agencies have an 

inherent authority to reconsider their 

own decisions, since the power to 

decide in the first instance carries with 

it the power to reconsider’’); see also 

New Jersey v. EPA, 517 F.3d 574 (DC 

Cir. 2008) (holding that an agency 

normally can change its position and 

reverse a prior decision but that 

Congress limited EPA’s ability to 

remove sources from the list of 

hazardous air pollutant source 

categories, once listed, by requiring EPA 

to follow the specific delisting process 

at CAA section 112(c)(9)).13

Section 301(a) of the CAA, in 

conjunction with CAA section 502 and 

the case law just described, provides 

statutory authority for EPA’s 

reconsideration action in this 

rulemaking. Section 301(a) of the CAA 

authorizes EPA ‘‘to prescribe such 

regulations as are necessary to carry out 

[EPA’s] functions’’ under the CAA. 

Reconsidering prior rulemakings, when 

necessary, is part of ‘‘[EPA’s] functions’’ 

under the CAA. Cf. CAA section 307(b). 

Furthermore, the case law previously 

cited establishes that a grant of authority 

to approve State title V programs carries 

with it the inherent right to reconsider 

that approval, particularly since 

Congress has not prescribed any specific 

alternative mechanism for such 

reconsideration. Thus, CAA sections 

502 and 301(a) confer authority upon 

EPA to undertake this rulemaking. 

EPA finds further support for its 

authority to narrow its approvals in 

APA section 553(e), which requires EPA 

to give interested persons ‘‘the right to 

petition for the issuance, amendment, or 

repeal of a rule,’’ and CAA section 

307(b)(1), which expressly contemplates 

that persons may file a petition for 

reconsideration under certain 

circumstances (at the same time that a 

rule is under judicial review). The right 

to petition to reconsider, amend, or 

repeal presumes that an agency has the 

discretion to grant such a petition. If 

EPA has the authority to grant a petition 

from another person to reconsider, 

amend or repeal a rule if justified under 

the CAA, then it follows that EPA 

should be considered as having 

authority to reconsider, amend or repeal 

a rule when it determines such an 

action is justified under the CAA, even 

without a petition from another person. 

EPA recently used its authority to 

reconsider prior actions and limit its 

prior approval of a SIP in connection 

with California conformity SIPs. See, 

e.g., 68 FR 15720, 15723 (discussing 

prior action taken to limit approvals); 67 

FR 69139 (taking final action to amend 

prior approvals to limit their duration); 

67 FR 46618 (proposing to amend prior 

approvals to limit their duration, based 

on CAA sections 110(k) and 301(a)). 

EPA had previously approved SIPs with 

emissions budgets based on a mobile 

source model that was current at the 

time of EPA’s approval. Later, EPA 

updated the mobile source model. But, 

even though the model had been 

updated, emissions budgets would 

continue to be based on the older, 

previously approved model in the SIPs, 

rather than the updated model. To 

rectify this problem, EPA conducted a 

rulemaking that revised the previous 

SIP approvals so that the approvals of 


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14As noted in the Tailoring Rule, there may be 

good reasons for States to update their State laws 

and regulations to reflect the narrowing and the 

thresholds of the Tailoring Rule, but the States will 

still have fully approved programs, and once the 

Federally-approved program is narrowed, the 

obligation under Federally approved programs to 

apply for a permit will no longer exist for sources 

below the Tailoring Rule thresholds. 

the emissions budgets would expire 

early, when the new ones were 

submitted by States and found adequate, 

rather than when a SIP revision was 

approved. This helped California more 

quickly adjust its regulations to 

incorporate the newer model. 

EPA notes that it considered but 

decided not to use the NOD process, 

which is explicitly provided for in CAA 

section 502(i), to address the flaw 

presented by these program approvals. 

There are several reasons why EPA 

determined that it was neither necessary 

nor appropriate to use the NOD process 

to address this issue in this rule. 

The CAA provides that the NOD is to 

be used ‘‘whenever the Administrator 

makes a determination that a permitting 

authority is not adequately 

administering or enforcing a program’’ 

and provides that States must correct 

the deficiency within 18 months. CAA 

section 502(i). 

Here, the problem is not with the way 

the State is administering or enforcing 

its approved State title V program. 

States are issuing permits, and 

modifications, and enforcing the various 

requirements of title V as provided for 

under the Act. The flaw is the mismatch 

between the breadth of the applicability 

provisions and the limited State 

assurances of adequate resources, in 

light of the possibility that a very large 

number of new major sources could 

become subject to title V. This flaw does 

not relate at all to the current 

administration and enforcement of the 

title V program, but rather to the 

overbroad nature of the underlying 

structure and scope of the title V 

program. The distinction is further 

underlined by the fact that section 

502(i) contemplates that States would 

need to take corrective action to address 

the notice of deficiency. However, in the 

case of the flaw addressed here, EPA 

believes that no further State action will 

be necessary to address this mismatch 

once the approved title V program has 

been narrowed by this action.14

EPA views the NOD as specific 

authority for addressing specific 

circumstances, but concludes that it is 

not the sole means of changing an 

approved State program, and it is not 

the appropriate means in these 

circumstances. EPA believes nothing in 

section 502(i) displaces its authority to 

reconsider prior program approvals and, 

for the reasons described previously in 

this rule and in the Tailoring Rule 

proposal, concludes that such a 

reconsideration and narrowing is 

warranted and appropriate. 

With respect to the two SIPs being 

revised, EPA is also exercising its 

authority to correct errors in SIPs, 

pursuant to CAA section 110(k)(6), as 

well as its authority to reconsider its 

actions. Under CAA section 110(k)(6), 

once EPA determines that its action in 

approving the PSD SIPs was in error, 

EPA has the authority to correct the 

error in an ‘‘appropriate’’ manner, and 

through the same process as the original 

approval, but without requiring any 

further State submission. 

EPA’s narrowing of its approval of the 

title V program corrects an error by 

addressing the flaw previously 

discussed, that the approved program 

could, under certain circumstances, 

sweep in more sources than the 

permitting authority could process in an 

expeditious manner in light of the 

resources that were available or could 

be made available. EPA believes 

correcting these SIPs is a reasonable 

exercise of its authority for the reasons 

stated herein and for the reasons stated 

in the PSD Narrowing Rule (‘‘Limitation 

of Approval of Prevention of Significant 

Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in 

State Implementation Plans’’). 

V. Comments and Responses 

Comments: Several industry 

commenters (4019, 4118, 4691, 5083, 

5140, 5181, 5278, 5317) and one State 

commenter (4019) generally disagreed 

with our proposal to narrow our 

approval of previously-approved title V 

programs. Specific arguments against 

the proposed approach include the 

following: 

• The EPA has overstated its 

authority under CAA section 301(a). 

The DC Circuit has observed that 

section 301(a)(1) ‘‘does not provide the 

Administrator with carte blanche 

authority to promulgate any rules, on 

any matter relating to the CAA, in any 

manner that the Administrator wishes.’’ 

Where the CAA includes express 

provisions—such as section 110(k)(5) 

(the SIP call provision)—EPA is 

required to follow those provisions. 

(4019, 5083, 5140, 5181, 5278, 5317). 

• The EPA’s invocation of 5 U.S.C. 

553(e) is legally indefensible. The EPA 

has mentioned no outstanding petition 

for EPA to revisit its PSD SIP approvals, 

so section 553(e) appears to be 

inapposite. Even where section 553(e) 

applies, it merely directs agencies to 

allow parties to seek revisions of rules; 

it plainly does not permit agencies to 

disregard procedural requirements— 

whether under the APA or under 

organic statutes such as the CAA—that 

agencies must follow in effecting any 

such revisions. (5317) 

An industry commenter (4298) 

supports EPA’s efforts to limit or 

conform its prior approvals through 

CAA sections 301(a)(1) and 110(k)(6) 

with respect to applicability thresholds. 

However, the commenter believes EPA 

should take affirmative steps to ensure 

that States immediately either revise 

their regulations to raise existing lower 

thresholds or demonstrate that they 

have adequate resources and funding to 

manage their programs utilizing those 

existing lower thresholds. 

The same commenter states that EPA 

should issue a NOD, under CAA section 

502(i)(1), to all States concurrent with 

the final Tailoring Rule, unless a State 

can demonstrate that it has commenced 

and is committed to finalizing any 

changes necessary under State law to 

make it consistent with the Tailoring 

Rule (4298). The commenter adds that 

EPA should not finalize any action that 

would trigger GHG permitting until each 

State program has been amended. 

Another commenter (5306) suggests 

EPA establish an expeditious deadline 

for States to submit corrective program 

revisions by adopting model guidelines 

to help inform State rulemaking, and 

EPA should complete this process by 

the end of 2010. The commenter 

explains that EPA can promptly issue a 

notice of deficiency and call for 

expeditious corrective action. See 42 

U.S.C. 7661a(i). (5306). 

Several comments state that there is 

no provision in title V, similar to error 

correction provisions for SIPs, for EPA 

to use to correct an error in its original 

approval of a title V program (5140, 

5181, 5278). 

Response: As discussed previously, 

EPA believes that it has authority under 

sections 502 and 301 to reconsider its 

approvals of State title V programs and 

under section 110 to reconsider SIP 

approvals and correct errors in the SIP. 

Section 502(d) explicitly requires EPA 

to approve or disapprove State title V 

programs, and EPA believes under the 

case law cited previously, this authority 

inherently includes the authority for 

EPA to reconsider its prior approval. 

EPA is citing CAA 307(b) and APA 

section 553(e) to indicate that Congress 

understood that EPA had the authority 

to reconsider its action in response to a 

petition. There is no reason to believe 

that EPA’s authority to reconsider its 


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15We further note that it is not clear the comment 

challenging the citation of section 553(e) in the 

absence of a petition was intended to reference title 

V. 

16For further discussion of SIP-related issues, see 

the PSD Narrowing Rule, particularly section V.A 

(‘‘Comments Regarding the Legal Mechanism for the 

Current Action’’). 

action is limited solely to situations 

where a person has filed a petition.15

While Congress ‘‘undoubtedly can 

limit an agency’s discretion to reverse 

itself,’’ and ‘‘EPA may not construe a 

statute in a way that completely 

nullifies textually applicable provisions 

meant to limit its discretion,’’ New 

Jersey v. EPA, 517 F.3d 574, 583 (DC 

Cir. 2008) (quotation omitted), there is 

no evidence that Congress limited EPA’s 

discretion to reconsider its decisions 

with respect to title V program 

approvals, or that EPA’s approach 

would nullify any provisions intended 

to limit its discretion. The only 

provision that commenters have 

identified as potentially limiting EPA’s 

discretion is section 502(i), but that 

section is explicitly directed to the 

administration and enforcement of an 

approved program. Where there are 

problems with how an approved 

program is being implemented, the 

notice of deficiency process provides an 

avenue for working with States to fix 

those problems. Where, however, EPA 

realizes (as here) that its approval of a 

program was based on a structural flaw 

in the program—that is, a mismatch 

between the scope of sources potentially 

covered and the resources to cover 

them—that may cause future problems 

with administrability, there is no reason 

to believe that Congress intended to 

limit EPA’s ability to reconsider its 

decision. 

As noted previously, the distinction 

between current deficiencies in the 

administration and enforcement of the 

title V program, as compared to the 

overbroad nature of the underlying 

structure and scope of the title V 

program, is further underlined by the 

fact that section 502(i) contemplates that 

States would need to take corrective 

action to address the notice of 

deficiency. However, in the case of the 

flaw addressed here, EPA believes that 

no further State action will be necessary 

once the approved title V program has 

been narrowed by this action. 

The conclusion that Congress did not 

intend to limit EPA’s ability to 

reconsider its decisions is further 

supported by the fact that (unlike the 

situation the DC Circuit considered in 

New Jersey v. EPA, discussed 

previously) Congress did not establish 

any specific substantive limits on EPA’s 

discretion in issuing a notice of 

deficiency. Rather, EPA is to issue a 

notice ‘‘whenever the Administrator 

makes a determination that a permitting 

authority is not adequately 

administering and enforcing a program 

* * * ’’ Section 502(i)(1). Thus, EPA’s 

decision to reconsider its approval in no 

way nullifies any provisions meant to 

limit its discretion. 

Finally, the fact that there is no 

provision similar to section 110(k)(6) for 

title V provides no basis for concluding 

that Congress intended to limit EPA’s 

ability to reconsider its approvals. 

Section 110(k)(6) was enacted in 

response to a court decision, Concerned 

Citizens of Bridesburg v. EPA, 836 F.2d 

777 (2d Cir. 1987), where the court 

narrowly construed EPA’s authority to 

correct errors in SIP approvals as 

limited to typographical or similar 

errors. In response, Congress added 

section 110(k)(6) as part of the 1990 

amendments to make clear that EPA has 

authority to correct any errors. No court 

has ever suggested that EPA lacks 

authority to reconsider its decisions to 

approve title V programs, and under the 

case law the lack of an explicit 

mechanism to correct errors in title V 

program approvals is entirely consistent 

with EPA’s view that such authority is 

inherent in CAA section 502, as 

discussed previously. 

EPA believes this case law also 

supports its authority to reconsider the 

approvals into part 52 of two title V 

programs which are being narrowed. 

Furthermore, EPA believes we have 

authority not only to reconsider these 

SIP approvals, but also to narrow these 

SIPs using our error correction authority 

under CAA section 110(k)(6). EPA 

disagrees with commenters who believe 

that this provision may only be used for 

technical or clerical errors. EPA’s view 

is that Section 110(k)(6) of the CAA is 

available to correct any error EPA made 

in approving a SIP. The text of CAA 

section 110(k)(6) applies the provision 

broadly to any mistake, and does not 

limit the provision’s applicability to 

only technical or clerical errors. 

Congress’s passage of CAA section 

110(k)(6) in 1990 in fact indicated 

Congress’s intent to reinforce EPA’s 

broad authority to unilaterally correct 

any errors in SIP approvals, coming as 

it did after the Third Circuit adopted a 

narrow interpretation of error correction 

authority in Concerned Citizens of 

Bridesburg v. U.S. EPA, 836 F.2d 777 

(1987).16

EPA notes that the question of 

whether EPA should have postponed 

promulgation of the Vehicle Rule until 

each State title V program had been 

revised is not germane to this rule, and 

EPA is not, in this rule, reopening any 

issue as to the timing of its 

promulgation of the Vehicle Rule. 

Nonetheless, EPA had compelling 

reasons to issue the Vehicle Rule at the 

time it did so. In the Vehicle Rule, EPA 

explained that although it has some 

discretion with respect to the timing of 

standards, our discretion was not 

unlimited, and that three years had 

already passed since the Supreme Court 

had directed EPA to take appropriate 

actions under CAA section 202(a). 75 FR 

25402. EPA explained further that any 

additional delay in setting standards 

would frustrate implementation of the 

national program for regulation of motor 

vehicles, resulting in substantial 

prejudice to vehicle manufacturers and 

consumers. 75 FR 25326. EPA also 

explained that consideration of indirect 

stationary source costs has no relevance 

to the issue of the appropriate level at 

which to set vehicle emission standards. 

Vehicle Rule RTC 5–456. 

As noted previously, once the 

Federally-approved program is 

narrowed, the obligation under 

Federally approved programs to apply 

for a permit will no longer exist for 

sources below the Tailoring Rule 

thresholds. Further, EPA notes that the 

Agency has no authority to amend State 

law, but the majority of States have 

informed EPA that they are revising 

their State programs to incorporate the 

thresholds in the final Tailoring Rule for 

GHG-emitting sources. Indeed, many 

programs report that these changes will 

be in place by January 2, 2011. Other 

programs report that their changes will 

be implemented by the spring of 2011, 

which should be timely for State law 

purposes in light of the fact that sources 

newly subject to title V generally have 

up to a year to file their application. 

EPA is continuing to work with States 

to implement the final Tailoring Rule 

and title V permitting for GHG sources. 

EPA intends to use program revisions, 

notices of deficiency and/or application 

of the Federal title V program, as 

appropriate, in order to assure that GHG 

sources in all States are subject to title 

V programs (and that those programs are 

not overwhelmed by permitting sources 

below the Tailoring Rule thresholds). 

EPA reiterates that once the Federallyapproved program is narrowed (in this 

action), the obligation under Federally 

approved programs to apply for a permit 

will no longer exist for sources below 

the Tailoring Rule thresholds. EPA 

reiterates further that this approach is 

preferable to the NOD process for States 

subject to this action and that it is not 

necessary to issue notices of deficiency 

as part of this rulemaking. 


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VI. Effective Date 

This rule is being issued under CAA 

§ 307(d)(1)(V). CAA section 307(d) 

specifies that rules issued under its 

provisions are not subject to APA 

section 553. Thus, the 30-day delay in 

effective date from the date of signature 

required under the APA does not apply. 

In addition, APA section 553(d) 

provides exceptions to this requirement 

for good cause and for any action that 

grants or recognizes an exemption or 

relieves a restriction. The effect of this 

rule is to relieve many small sources 

(and permitting authorities) from 

permitting obligations under title V and 

to address the potential for permitting 

authorities to be overwhelmed by 

processing permits not required under 

40 CFR part 70. Therefore, EPA finds 

that there is good cause for an 

immediate effective date, and that an 

immediate effective date is consistent 

with the purposes underlying APA 

section 553(d). In addition, since this is 

not a major rule under the 

Congressional Review Act (CRA), the 

60-day delay in effective date required 

for major rules under the CRA does not 

apply. This rule is thus effective upon 

publication. 

VII. 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 will raise 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. Instead, 

this will significantly reduce costs 

incurred by sources and permitting 

authorities relative to the costs that 

would be incurred if EPA did not revise 

this rule. In the final Tailoring Rule, 

EPA stated that based on its GHG 

threshold data analysis, it estimated that 

over 6 million new facilities nationally 

would be required to obtain operating 

permits based on applying an emissions 

threshold for major source status of 100 

tpy of GHG emissions on a mass basis. 

This was compared with the 

approximately 15,000 title V permits 

that have been issued to date. Thus, 

without the final Tailoring Rule, the 

administrative burden for permitting 

GHG emissions would increase 400- 

fold, an unmanageable increase. The 

current action takes further steps to 

implement the burden-reduction 

implemented by the final Tailoring Rule 

by raising the GHG thresholds in the 

approvals of the title V programs of the 

identified State and local agencies from 

100 tpy to the higher thresholds 

required under the final Tailoring Rule 

(100,000 tpy CO2e under title V during 

step 2 of the final Tailoring Rule 

implementation). However, OMB has 

previously approved the information 

collection requirements contained in the 

existing regulations under 40 CFR part 

70 under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0336. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which 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. 

In making such determinations, the 

impact of concern is any significant 

adverse economic impact on small 

entities (5 U.S.C. 603 and 604). This rule 

will relieve Federal regulatory burdens 

for affected small entities, including 

small businesses that are subject to title 

V permitting in the affected States by 

raising the GHG applicability thresholds 

in those States to the levels specified in 

the final Tailoring Rule, which in turn, 

will result that fewer sources being 

subject to title V permitting in those 

States. Thus, the program changes 

provided by this rule will not result in 

a significant economic impact on a 

substantial number of small entities. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or Tribal 

governments or the private sector. The 

action is merely an administrative 

action designed to ensure consistency 

with the requirements of the final 

Tailoring Rule. This action does not 

require any State or local permitting 

agency or private entity to take on any 

new regulatory burdens; any burden 

resulting from changing State or local 

GHG thresholds was already accounted 

for in the final Tailoring Rule, which 

already imposes the higher GHG 

thresholds addressed by this action. 

Thus, this action is not subject to the 

requirements of sections 202 or 205 of 

the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule is expected to result in cost savings 

and administrative burden reduction for 

affected permitting agencies and sources 

in the affect States, including 

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 seeks to reduce the number of 

sources subject to title V permitting in 

the affected States by raising the GHG 

thresholds in those States to the levels 

specified in the final Tailoring Rule, 

resulting in a significant reduction in 

burdens for affected State and local 

agencies. 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 proposed 

action from State and local officials. 


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17One Tribe is operating a title V permit program 

pursuant to a delegation under part 71. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to Executive Order 13175 (65 

FR 67249, November 9, 2000) EPA may 

not issue a regulation that has Tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by Tribal governments, or 

EPA consults with Tribal officials early 

in the process of developing the 

proposed regulation and develops a 

Tribal summary impact statement. 

EPA has concluded that this action 

may have Tribal implications. However, 

it will neither impose substantial direct 

compliance costs on Tribal government, 

nor preempt Tribal law. There are no 

Tribal authorities with an EPAapproved part 70 title V permitting 

program to date;17 however, this may 

change in the future. 

EPA consulted with Tribal officials 

early in the process of developing the 

final Tailoring Rule, which the current 

rule helps to implement, to allow them 

to have meaningful and timely input 

into its development. EPA specifically 

solicited comments from Tribal officials 

on the proposal for this approach to 

narrowing title V program approvals, 

which was part of the GHG Tailoring 

Rule proposal (74 FR 55292, October 27, 

2009). EPA consulted with Tribal 

officials early in the regulatory 

development process for the GHG 

Tailoring Rule, including by publishing 

an Advanced Notice of Proposed 

Rulemaking (73 FR 44354, July 30, 

2009), where we received several 

comments from Tribal officials which 

were considered in the proposed and 

final rules. 

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 does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

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. Further, 

we have concluded that this rule is not 

likely to have any adverse energy effects 

because it does not create any new 

requirements for sources in the energy 

supply, distribution, or use sectors. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 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 action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898—Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has concluded that it is not 

practicable to determine whether there 

would be disproportionately high and 

adverse human health or environmental 

effects on minority and/or low income 

populations from this rule. This rule is 

necessary in order to allow for the 

continued implementation of permitting 

requirements established in the Clean 

Air Act. Specifically, without this rule, 

the affected States’ CAA title V 

permitting programs would become 

overwhelmed and unmanageable by the 

untenable number of GHG sources that 

would become newly subject to them. 

This would result in severe impairment 

of the functioning of these programs 

with potentially adverse human health 

and environmental effects nationwide. 

Under this rule and the findings under 

the final Tailoring Rule, EPA is ensuring 

that the affected States’ CAA permitting 

programs continue to operate by 

limiting their applicability to the 

maximum number of sources the 

programs can possibly handle. This 

approach is consistent with 

congressional intent as it phases in 

applicability, starting with the largest 

sources initially, and then other sources 

over time, so as not to overwhelm State 

permitting programs. By doing so, this 

rule allows for the maximum degree of 

environmental protection possible while 

providing regulatory relief for the 

unmanageable burden that would 

otherwise exist. Therefore, we believe it 

is not practicable to identify and 

address disproportionately high and 

adverse human health or environmental 

effects on minority populations and low 

income populations in the United States 

under this final rule, though we do 

believe that this rule will ensure that 

States can continue to issue title V 

permits to significant sources of air 

pollution. 

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 is not a ‘‘major rule’’ as 

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

will be effective December 30, 2010. 

L. Judicial Review 

Under section 307(b)(1) of the Act, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit by February 28, 2011. 


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Any such judicial review is limited to 

only those objections that are raised 

with reasonable specificity in timely 

comments. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. 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. Pursuant to 

section 307(d)(1)(V) of the Act, the 

Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d)(1)(V) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’ This 

action finalizes some, but not all, 

elements of a previous proposed 

action—the Prevention of Significant 

Deterioration and Title V Greenhouse 

Gas Tailoring Rule Proposed Rule (74 

FR 55292, October 27, 2009). 

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

which Federal Courts of Appeal have 

jurisdiction for petitions of review of 

final actions by EPA. This section 

provides, in part, that petitions for 

review must be filed in the Court of 

Appeals for the District of Columbia 

Circuit: (i) When the agency action 

consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

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

when such action is locally or regionally 

applicable, if ‘‘such action is based on a 

determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

This rule narrowing approvals of title 

V programs is ‘‘nationally applicable’’ 

within the meaning of section 307(b)(1). 

This rule narrows the approval of most 

approved title V programs across the 

country. At the core of this rulemaking 

is EPA’s interpretation of its authority to 

reconsider its prior approvals under the 

Clean Air Act, and its application of that 

interpretation to areas across the 

country. EPA is finalizing this rule with 

a goal of ensuring that no State will 

become unable to implement national 

Clean Air Act requirements, including 

those for permitting sources of 

greenhouse gases. This action is being 

taken on the basis of a single 

administrative record. The factual 

questions in this rule are not unique to 

particular geographical areas, but are 

asked uniformly of all States. The large 

number of States, spanning much of the 

country, being affected, the common 

core of knowledge and analysis 

involved in formulating the rule, and 

the common legal interpretation 

advanced of section 502 and other 

sections of the Clean Air Act, all 

combine to make this a nationally 

applicable rule. 

For the same reasons, the 

Administrator also is finding that this 

action is based on determinations of 

nationwide scope and effect for the 

purposes of section 307(b)(1). This is 

particularly appropriate because, in the 

report on the 1977 Amendments that 

revised section 307(b)(1) of the CAA, 

Congress noted that the Administrator’s 

determination that an action is of 

‘‘nationwide scope or effect’’ would be 

appropriate for any action that has a 

scope or effect beyond a single judicial 

circuit. H.R. Rep. No. 95–294 at 323, 

324, reprinted in 1977 U.S.C.C.A.N. 

1402–03. Here, the scope and effect of 

this rulemaking extends to numerous 

judicial circuits since most approved 

title V programs across the country are 

affected by this action. EPA also applied 

a consistent analytical approach broadly 

across the country to determine which 

action to take, and for which States. 

EPA used a nationally applicable, 

uniform legal interpretation of section 

502 and other sections of the Clean Air 

Act and of EPA’s general authority in 

conducting this analysis. In these 

circumstances under section 307(b)(1), 

the Administrator is finding the rule to 

be based on determinations of 

‘‘nationwide scope or effect’’ and for 

jurisdiction to be in the DC Circuit. 

Thus, any petitions for review of the 

narrowing of title V program approvals 

must be filed in the Court of Appeals for 

the District of Columbia Circuit by 

February 28, 2011. 

Statutory Authority 

The statutory authority for this action 

is provided by sections 110, 301 and 

502 of the CAA as amended (42 U.S.C. 

7410, 7601 and 7661a). This action is 

also subject to section 307(d) of the CAA 

(42 U.S.C. 7407(d)). 

List of Subjects 

40 CFR Part 52 

Administrative practice and 

procedure, Air pollution control, Carbon 

dioxide, Carbon dioxide equivalents, 

Environmental protection, Greenhouse 

gases, Hydrofluorocarbons, 

Intergovernmental relations, Methane, 

Nitrous oxide, Perfluorocarbons, 

Reporting and recordkeeping 

requirements, Sulfur hexafluoride. 

40 CFR Part 70 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Carbon dioxide, 

Carbon dioxide equivalents, Greenhouse 

gases, Hydrofluorocarbons, 

Intergovernmental relations, Methane, 

Nitrous oxide, Perfluorocarbons, 

Reporting and recordkeeping 

requirements, Sulfur hexafluoride. 

Dated: December 23, 2010. 

Lisa P. Jackson, 

Administrator. 

■ For reasons stated in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is amended as set forth in 

the following. 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.151 is added to subpart 

D to read as follows: 

§ 52.151 Operating permits. 

Insofar as the permitting threshold 

provisions in the Pinal County Code of 

Regulations for the Pinal County Air 

Quality Control District concern the 

treatment of sources of greenhouse gas 

emissions as major sources for purposes 

of title V operating permits, EPA 

approves such provisions only to the 

extent they require permits for such 

sources where the source emits or has 

the potential to emit at least 100,000 tpy 

CO2 equivalent emissions, as well as 

100 tpy on a mass basis, as of July 1, 

2011. 

■ 3. Section 52.1233 is revised by 

redesignating the existing text as 

paragraph (a) and adding a new 

paragraph (b) to read as follows: 

§ 52.1233 Operating permits. 

* * * * * 

(b) For any permitting program 

located in the State, insofar as the 

permitting threshold provisions in 

Chapter 7007 rules concern the 

treatment of sources of greenhouse gas 

emissions as major sources for purposes 

of title V operating permits, EPA 

approves such provisions only to the 

extent they require permits for such 

sources where the source emits or has 

the potential to emit at least 100,000 tpy 

CO2 equivalent emissions, as well as 

100 tpy on a mass basis, as of July 1, 

2011. 

■ 4. Section 52.2590 is added to subpart 

YY to read as follows: 

§ 52.2590 Operating permits. 

For any permitting program located in 

the State, insofar as the permitting 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82267 

threshold provisions in Chapter NR 407 

of the Wisconsin Administrative Code 

concern the treatment of sources of 

greenhouse gas emissions as major 

sources for purposes of title V operating 

permits, EPA approves such provisions 

only to the extent they require permits 

for such sources where the source emits 

or has the potential to emit at least 

100,000 tpy CO2 equivalent emissions, 

as well as 100 tpy on a mass basis, as 

of July 1, 2011. 

PART 70—[AMENDED] 

■ 5. The authority citation for part 70 

continues to read as follows: 

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

■ 6. Appendix A to Part 70 is amended 

as follows: 

■ a. By adding paragraph (d) under 

Alabama; and 

■ b. By adding paragraph (jj) under 

California; 

■ c. By adding paragraph (c) under 

Colorado; 

■ d. By adding paragraph (d) under 

District of Columbia; 

■ e. By adding paragraph (c) under 

Georgia; 

■ f. By adding paragraph (d) under 

Hawaii; 

■ g. By adding paragraph (c)under 

Illinois; 

■ h. By adding paragraph (m) under 

Iowa; 

■ i. By adding paragraph (e) under 

Kansas; 

■ j. By adding paragraph (c) under 

Louisiana; 

■ k. By adding paragraph (c) under 

Maine; 

■ l. By adding paragraph (d) under 

Maryland; 

■ m. By adding paragraph (d) under 

Minnesota; 

■ n. By adding paragraph (c) under 

Mississippi; 

■ o. By adding paragraph (x) under 

Missouri; 

■ p. By adding paragraph (k) under 

Nebraska, City of Omaha; LincolnLancaster County Health Department; 

■ q. By adding paragraph (d) under 

Nevada; 

■ r. By adding paragraph (c) under New 

Hampshire; 

■ s. By adding paragraph (e) under New 

York; 

■ t. By adding paragraph (d) under 

Ohio; 

■ u. By adding paragraph (c) under 

Oklahoma; 

■ v. By adding paragraph (c) under 

Pennsylvania; 

■ w. By adding paragraph (c) under 

Rhode Island; 

■ x. By adding paragraph (c) under 

South Carolina; 

■ y. By adding paragraph (c) under 

South Dakota; 

■ z. By adding paragraph (f) under 

Tennessee; 

■ aa. By adding paragraph (c) under 

Utah; 

■ bb. By adding paragraph (c) under 

Vermont; 

■ cc. By adding paragraph (c) under 

Virgin Islands; 

■ dd. By adding paragraph (c) under 

Virginia; 

■ ee. By adding paragraph (j) under 

Washington; 

■ ff. By adding paragraph (f) under West 

Virginia; and 

■ gg. By adding paragraph (c) under 

Wisconsin. 

Additions to the Appendix are set out 

to read as follows: 

Appendix A to Part 70—Approval 

Status of State and Local Operating 

Permits Programs 

* * * * * 

Alabama 

* * * * * 

(d) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

California 

* * * * * 

(jj) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Colorado 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

District of Columbia 

* * * * * 

(d) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Georgia 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Hawaii 

* * * * * 

(d) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

Illinois 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

Iowa 

* * * * * 

(m) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Kansas 

* * * * * 

(e) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

Louisiana 

* * * * * 


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(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Maine 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Maryland 

* * * * * 

(d) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

Minnesota 

* * * * * 

(d) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Mississippi 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Missouri 

* * * * * 

(x) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

Nebraska; City of Omaha; Lincoln-Lancaster 

County Health Department 

* * * * * 

(k) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Nevada 

* * * * * 

(d) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

New Hampshire 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

New York 

* * * * * 

(e) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

Ohio 

* * * * * 

(d) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Oklahoma 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

Pennsylvania 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

Rhode Island 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

South Carolina 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

South Dakota 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Tennessee 

* * * * * 

(f) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

* * * * * 


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Utah 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Vermont 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Virgin Islands 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Virginia 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Washington 

* * * * * 

(j) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

West Virginia 

* * * * * 

(f) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

Wisconsin 

* * * * * 

(c) For any permitting program located in 

the State, insofar as the permitting threshold 

provisions concern the treatment of sources 

of GHG emissions as major sources for 

purposes of title V, EPA approves such 

provisions only to the extent they require 

permits for such sources where the source 

emits or has the potential to emit at least 

100,000 tpy CO2e, as well as 100 tpy on a 

mass basis, as of July 1, 2011. 

* * * * * 

[FR Doc. 2010–32757 Filed 12–29–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62 

[EPA–R04–OAR–2010–0392(a); FRL–9246– 

6] 

Approval and Promulgation of State 

Plans for Designated Facilities and 

Pollutants; State of Florida; Control of 

Large Municipal Waste Combustor 

(LMWC) Emissions From Existing 

Facilities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule; notice of 

administrative change. 

SUMMARY: EPA is approving the Clean 

Air Act (CAA) section 111(d)/129 State 

Plan (the Plan) submitted by the Florida 

Department of Environmental Protection 

(FDEP) for the State of Florida on July 

12, 2007, for implementing and 

enforcing the Emissions Guidelines 

(EGs) applicable to existing Large 

Municipal Waste Combustors (LMWCs). 

These EGs apply to municipal waste 

combustors with a capacity to combust 

more than 250 tons per day of 

municipal solid waste (MSW). 

DATES: This direct final rule is effective 

February 28, 2011 without further 

notice, unless EPA receives adverse 

comment by January 31, 2011. If EPA 

receives such comments, it will publish 

a timely withdrawal of the direct final 

rule in the Federal Register and inform 

the public that the rule will not take 

effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R04–OAR–2010–0392 by one of the 

following methods: 

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

the on-line instructions for submitting 

comments. 

2. E-mail: garver.daniel@epa.gov. 

3. Fax: (404) 562–9095. 

4. Mail: EPA–R04 OAR–2010–0392, 

Daniel Garver, U.S. Environmental 

Protection Agency, Region 4, 61 Forsyth 

Street SW, Atlanta, Georgia 30303. 

5. Hand Delivery or Courier: Mr. 

Daniel Garver, Air Toxics Assessment 

and Implementation Section, Air Toxics 

and Monitoring Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW, 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 am to 4:30 pm, excluding 

federal holidays. 

Instructions: Direct your comments to 

Docket ID Number EPA–R04–OAR– 

2010–0392. EPA’s policy is that all 

comments received will be included in 

the public docket without change, and 

may be made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD-ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

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

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 


srobinson on DSKHWCL6B1PROD with RULES