Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules 53883 

(13) Proceed generally north, 

northwest, and west along the California 

Aqueduct, crossing over the Palmdale, 

Ritter Ridge, Lancaster West, Del Sur, 

Lake Hughes, and Fairmont Butte maps, 

onto the Neenach School map, to the 

aqueduct’s intersection with the Pacific 

Crest National Scenic Trail and the Los 

Angeles Aqueduct in section 16, T8N, 

R16W; then 

(14) Proceed north and northeast 

along the Pacific Crest National Scenic 

Trail and the Los Angeles Aqueduct as 

the aqueduct crosses over the Fairmont 

Butte map onto the Tylerhorse map to 

the 3,120-foot, marked elevation point at 

the West Antelope Station, section 3, 

T9N, R15W; then 

(15) Proceed east-northeast along the 

Los Angeles Aqueduct (the Pacific Crest 

National Scenic Trail forks to the west 

at the 3,120-foot marked elevation 

point), crossing onto the Willow Springs 

map, to the aqueduct’s intersection with 

Tehachapi Willow Springs Road, 

section 7, T10N, R13W; then 

(16) Proceed southeast and south on 

Tehachapi Willow Springs Road, 

crossing onto the Little Buttes map, to 

the road’s intersection with the 2,500- 

foot elevation line, section 17 west 

boundary line, T9N, R13W; then 

(17) Proceed east and northeast along 

the 2,500-foot elevation line, crossing 

over the Willow Springs map and 

continuing onto the Soledad Mtn. map, 

where that line crosses over and back 

three times from the Rosamond map, to 

the line’s intersection with the Edwards 

AFB boundary line, section 10, T9N, 

R12W; and then 

(18) Proceed straight south along the 

Edwards AFB boundary line, crossing 

over to the Rosamond map, to the 

beginning point. 

Signed: August 23, 2010. 

John J. Manfreda, 

Administrator. 

[FR Doc. 2010–21989 Filed 9–1–10; 8:45 am] 

BILLING CODE 4810–31–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0107; FRL–9190–8] 

RIN–2060–AQ45 

Action To Ensure Authority To Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas 

Emissions: Federal Implementation 

Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: In this rulemaking, EPA is 

proposing a Federal implementation 

plan (FIP) to apply in any State that is 

unable to submit, by its deadline, a 

corrective State implementation plan 

(SIP) revision to ensure that the State 

has authority to issue permits under the 

Clean Air Act’s (CAA or Act) New 

Source Review Prevention of Significant 

Deterioration (PSD) program for sources 

of greenhouse gases (GHGs). This 

proposal is a companion rulemaking to 

‘‘Action to Ensure Authority to Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and 

SIP Call,’’ which is being signed and 

published on the same schedule. In that 

action, EPA is proposing to make a 

finding of substantial inadequacy and 

proposing to issue a SIP call for 13 

States on grounds that their SIPs do not 

appear to apply the PSD program to 

GHG-emitting sources. 

DATES: Comments. Comments must be 

received on or before October 4, 2010. 

Public Hearing: One public hearing 

concerning the proposed regulation will 

be held. The date, time and location will 

be announced separately. Please refer to 

SUPPLEMENTARY INFORMATION for 

additional information on the comment 

period and the public hearing. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0107 by one of the following 

methods: 

• www.regulations.gov: Follow the 

online instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–9744 

• Mail: Attention Docket ID No. EPA– 

HQ–OAR–2010–0107, U.S. 

Environmental Protection Agency, EPA 

West (Air Docket), 1200 Pennsylvania 

Avenue, NW., Mail code: 6102T, 

Washington, DC 20460. Please include a 

total of 2 copies. 

• Hand Delivery: U.S. Environmental 

Protection Agency, EPA West (Air 

Docket), 1301 Constitution Avenue, 

Northwest, Room 3334, Washington, DC 

20004, Attention Docket ID No. EPA– 

HQ–OAR–2010–0107. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2010– 

0107. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

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

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, avoid any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

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

For additional instructions on 

submitting comments, go to section I.C 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket. All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Air Docket, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

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

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lisa Sutton, Air Quality Policy Division, 

Office of Air Quality Planning and 


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1EPA respects the unique relationship between 

the U.S. government and tribal authorities and 

acknowledges that tribal concerns are not 

interchangeable with State concerns. However, for 

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

to collectively mean State, local permitting 

authorities, and tribal authorities. 

2Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 

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

described in more detail later in this preamble. 

Standards (C504–03), Environmental 

Protection Agency, Research Triangle 

Park, NC 27711; telephone number: 

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

5509; e-mail address: 

sutton.lisa@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

questions related to a specific State, 

local, or tribal permitting authority, or 

to submit information requested in this 

action, please contact the appropriate 

EPA regional office: 

EPA regional 

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

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

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

Connecticut, Massachusetts, Maine, New Hampshire, Rhode Island, and Vermont. 

II ....................... Raymond Werner, Chief, Air Programs Branch, EPA Region 2, 290 Broadway, 25th Floor, New York, NY 10007–1866, (212) 637–3706.New Jersey, New York, Puerto Rico, and Virgin 

Islands. 

III ...................... Kathleen Anderson, Chief, Permits and Technical Assessment Branch, 

EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103–2029, (215) 

814–2173.

District of Columbia, Delaware, Maryland, Pennsylvania, Virginia, and West Virginia. 

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

Center, 61 Forsyth Street, SW., Atlanta, GA 30303–3104, (404) 562– 

9033.

Alabama, Florida, Georgia, Kentucky, Mississippi, 

North Carolina, South Carolina, and Tennessee. 

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

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

Illinois, Indiana, Michigan, Minnesota, Ohio, and 

Wisconsin. 

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

12th Floor, Suite 1200, 1445 Ross Avenue, Dallas, TX 75202–2733, 

(214) 665–6435.

Arkansas, Louisiana, New Mexico, Oklahoma, 

and Texas. 

VII .................... Mark Smith, Chief, Air Permitting and Compliance Branch, EPA Region 7, 

901 North 5th Street, Kansas City, KS 66101, (913) 551–7876.

Iowa, Kansas, Missouri, and Nebraska. 

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

Region 8, 1595 Wynkoop Street, Denver, CO 80202–1129, (303) 312– 

6416.

Colorado, Montana, North Dakota, South Dakota, 

Utah, and Wyoming. 

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

San Francisco, CA 94105, (415) 972–3974.

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

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

Region 10, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101, (206) 

553–6908.

Alaska, Idaho, Oregon, and Washington. 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

rule include States, local permitting 

authorities, and tribal authorities.1 Any 

SIP-approved PSD air permitting 

regulation that is not structured such 

that it includes GHGs among pollutants 

subject to regulation under the Act will 

potentially be found substantially 

inadequate to meet CAA requirements, 

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

State will potentially be affected by this 

rule. For example, if a State’s PSD 

regulation identifies its regulated NSR 

pollutants by specifically listing each 

individual pollutant and the list omits 

GHGs, then the regulation is inadequate. 

Entities potentially affected by this 

rule also include sources in all industry 

groups, which have a direct obligation 

under the CAA to obtain a PSD permit 

for GHGs for projects that meet the 

applicability thresholds set forth in the 

Tailoring Rule.2 This independent 

obligation on sources is specific to PSD 

and derives from CAA section 165(a). 

Any source that is subject to a State PSD 

air permitting regulation not structured 

to apply to GHG-emitting sources will 

potentially rely on this rule to obtain a 

permit that contains emission 

limitations that conform to requirements 

under CAA section 165(a). The majority 

of entities potentially affected by this 

action are expected to be in the 

following groups: 

Industry group NAICSa

Utilities (electric, natural gas, other systems) .......................................... 2211, 2212, 2213. 

Manufacturing (food, beverages, tobacco, textiles, leather) .................... 311, 312, 313, 314, 315, 316. 

Wood product, paper manufacturing ........................................................ 321, 322. 

Petroleum and coal products manufacturing ........................................... 32411, 32412, 32419. 

Chemical manufacturing ........................................................................... 3251, 3252, 3253, 3254, 3255, 3256, 3259. 

Rubber product manufacturing ................................................................. 3261, 3262. 

Miscellaneous chemical products ............................................................. 32552, 32592, 32591, 325182, 32551.

Nonmetallic mineral product manufacturing ............................................. 3271, 3272, 3273, 3274, 3279. 

Primary and fabricated metal manufacturing ........................................... 3311, 3312, 3313, 3314, 3315, 3321, 3322, 3323, 3324, 3325, 3326, 

3327, 3328, 3329. 

Machinery manufacturing ......................................................................... 3331, 3332, 3333, 3334, 3335, 3336, 3339. 

Computer and electronic products manufacturing ................................... 3341, 3342, 3343, 3344, 3345, 4446. 

Electrical equipment, appliance, and component manufacturing ............ 3351, 3352, 3353, 3359. 

Transportation equipment manufacturing ................................................. 3361, 3362, 3363, 3364, 3365, 3366, 3366, 3369. 

Furniture and related product manufacturing ........................................... 3371, 3372, 3379. 

Miscellaneous manufacturing ................................................................... 3391, 3399. 


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Industry group NAICSa

Waste management and remediation ...................................................... 5622, 5629. 

Hospitals/nursing and residential care facilities ....................................... 6221, 6231, 6232, 6233, 6239. 

Personal and laundry services ................................................................. 8122, 8123. 

Residential/private households ................................................................. 8141. 

Non-residential (commercial) .................................................................... Not available. Codes only exist for private households, construction 

and leasing/sales industries. 

a North American Industry Classification System. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this 

proposal will also be available on the 

World Wide Web. Following signature 

by the EPA Administrator, a copy of this 

notice will be posted on the EPA’s NSR 

Web site, under Regulations & 

Standards, at http://www.epa.gov/nsr. 

C. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. Send or deliver 

information identified as CBI only to the 

following address: Roberto Morales, 

OAQPS Document Control Officer 

(C404–02), U.S. EPA, Research Triangle 

Park, NC 27711, Attention Docket ID 

No. EPA–HQ–OAR–2010–0107. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

D. How can I find information about the 

public hearing? 

The EPA will hold one public hearing 

on this proposal. The date, time, and 

location of the public hearing will be 

announced separately. The EPA 

encourages commenters to provide 

written versions of their oral testimonies 

either electronically or in paper copy. If 

you would like to present oral testimony 

at the public hearing, please notify Ms. 

Pamela S. Long, New Source Review 

Group, Air Quality Policy Division 

(C504–03), U.S. EPA, Research Triangle 

Park, NC 27711, telephone number (919) 

541–0641, or e-mail: long.pam@epa.gov. 

Persons interested in presenting oral 

testimony should notify Ms. Long at 

least 2 days in advance of the public 

hearing. Persons interested in attending 

the public hearing should also contact 

Ms. Long to verify the time, date, and 

location of the hearing. The public 

hearing will provide interested parties 

the opportunity to present data, views, 

or arguments concerning the proposed 

rule. 

E. How is the preamble organized? 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. What should I consider as I prepare my 

comments for EPA? 

D. How can I find information about the 

public hearing? 

E. How is the preamble organized? 

II. Background and Context of Proposed Rule 

A. Introduction 

B. CAA and Regulatory Context 

C. SIP Inadequacy and Corrective Action; 

Federal Implementation Plans 

D. States That Do Not Appear To Apply the 

PSD Program to GHG Sources; PSD GHG 

SIP Call 

III. Proposed Federal Implementation Plan 

A. Timing for FIP 

B. Substance of FIP 

C. Primacy of the SIP Process 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

V. Statutory Authority 

II. Background and Context of Proposed 

Rule 

A. Introduction 

In this rulemaking under the CAA, 

EPA is proposing a FIP for 13 States for 

which, in a companion action, EPA is 

proposing a finding of SIP substantial 

inadequacy and is proposing to issue a 

SIP Call because the States’ PSD SIP 

programs do not appear to apply to 

sources of GHGs. ‘‘Action to Ensure 

Authority to Issue Permits Under the 

Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas 

Emissions: Finding of Substantial 

Inadequacy and SIP Call’’ (the ‘‘PSD 

GHG SIP Call’’ or ‘‘SIP Call’’). These two 

rulemakings address States whose 

permitting regulations and SIPs appear 

to fail to apply the PSD program to 

sources of GHGs in those States. As 

discussed further in this preamble, 

certain larger GHG-emitting sources will 

be subject to PSD permitting 

requirements on and after January 2, 

2011. Thus, in States whose PSD 

programs do not apply to sources of 

GHGs, sources will be unable to obtain 


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a PSD permit that covers GHG emissions 

and therefore potentially unable to 

undertake construction or modification 

projects on and after January 2, 2011. 

The States for which we are proposing 

a FIP are listed in table II–1, ‘‘States with 

SIPs That Do Not Appear To Apply PSD 

to GHG Sources (Presumptive SIP Call 

List).’’ If any of these States are not in 

a position to submit to EPA a corrective 

SIP revision by its deadline, EPA will 

promulgate a FIP that will provide 

authority to issue PSD permits for 

construction or modification of 

appropriate GHG sources in the State. 

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

LIST) 

State (or area) EPA 

region 

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

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

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

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

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

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

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

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

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

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

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

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

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

The rest of the States with approved 

SIP PSD programs (meaning each of 

those not listed in table II–1) are listed 

in table II–2, ‘‘States with SIPs that 

Appear to Apply PSD to GHG Sources 

(Presumptive Adequacy List).’’ For each 

of the States listed in table II–2 (as well 

as for any States with approved SIP PSD 

programs that we may have 

inadvertently omitted from table II–2), 

EPA is soliciting comment in the SIP 

Call companion notice on whether their 

SIPs do or do not apply the PSD 

program to GHG-emitting sources. We 

are not at this time proposing a FIP for 

the States listed in table II–2. However, 

if EPA concludes, on the basis of 

information EPA receives, that such a 

State’s SIP does not apply the PSD 

program to GHG-emitting sources, then 

EPA will proceed to issue for that State 

a finding of substantial inadequacy and 

a SIP Call on the same schedule as for 

the States listed in table II–1 (the 

presumptive SIP Call list). If a SIPcalled State is not able to submit to EPA 

a SIP revision that applies the PSD 

program to GHG sources by the deadline 

required in the SIP Call, then EPA 

proposes to promulgate a FIP without 

further notice and comment. The 

promulgated FIP will apply the PSD 

program to GHG sources in the State 

and provide PSD permitting authority 

for construction and modification of 

affected sources. Accordingly, interested 

parties in a State for which we, in the 

companion SIP Call rulemaking, solicit 

comment on the adequacy of its SIP to 

apply PSD to GHG-emitting sources 

should consider the comment period for 

the present notice to be their 

opportunity to comment on the FIP that 

EPA would implement in their State 

(should EPA ultimately determine to 

issue a SIP Call for their State in EPA’s 

final action on the companion SIP Call 

rulemaking). 

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

State (or area) EPA 

region 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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3 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

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

4 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

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

5 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs’’ (75 FR 17004; April 2, 2010) (finalizing 

EPA response to petition for reconsideration of 

‘‘EPA’s Interpretation of Regulations that Determine 

Pollutants Covered by Federal Prevention of 

Significant Deterioration (PSD) Permit Program’’ 

(commonly known as the ‘‘Johnson Memo’’), 

December 18, 2008). 

6 ‘‘Prevention of Significant Deterioration and 

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

75 FR 31514. 

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

Continued 

State (or area) EPA 

region 

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

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

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

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

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

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

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

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

The background and context for this 

proposed rule is the same as for the 

proposed PSD GHG SIP Call and other 

actions cross-referenced in that action. 

Familiarity with the proposed PSD GHG 

SIP Call is presumed. As a result, the 

background and context for this rule 

will be only briefly summarized here. 

B. CAA and Regulatory Context 

1. SIP PSD Requirements 

Under the CAA PSD requirements, a 

new or existing source that emits or has 

the potential to emit ‘‘any air pollutant’’ 

in specified quantities cannot construct 

or modify unless it first obtains a PSD 

permit that, among other things, 

imposes emission limitations that 

qualify as best available control 

technology (BACT). CAA sections 

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

Longstanding EPA regulations have 

interpreted the term ‘‘any air pollutant’’ 

narrowly so that only emissions of any 

‘‘regulated NSR pollutant’’ trigger PSD. 

40 CFR 52.21(j)(2), (b)(50)(iv). The term 

‘‘regulated NSR pollutant’’ is defined to 

include the following four classes of air 

pollutants: 

(i) any pollutant for which a NAAQS 

has been promulgated; 

(ii) any pollutant subject to an NSPS 

promulgated under CAA 111; 

(iii) any pollutant subject to a 

standard promulgated under CAA title 

VI; and 

(iv) ‘‘any pollutant that otherwise is 

subject to regulation under the Act’’ 

(excluding HAPs listed under CAA 

section 112). 

The CAA contemplates that the PSD 

program be implemented in the first 

instance by the States. States are 

required to include PSD requirements in 

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

Most States have PSD programs that 

have been approved into their SIPs, and 

these States implement their PSD 

program and act as the permitting 

authority. For the most part, these 

approved SIPs mirror EPA regulatory 

requirements, as found in 40 CFR 

51.166 (except for the recently added 

revisions from the Tailoring Rule). As a 

result, most SIPs include the 

applicability requirement that PSD 

apply to sources that construct or 

modify and thereby increase their 

emissions of any ‘‘regulated NSR 

pollutant.’’ A number of States do not 

have PSD programs approved into their 

SIPs; in those States, EPA’s regulations 

at 40 CFR 52.21 govern, and either EPA 

or the State as EPA’s delegatee acts as 

the permitting authority. 

2. Recent EPA Regulatory Actions 

Concerning PSD Requirements for GHGemitting Sources 

Beginning on January 2, 2011, certain 

stationary sources that construct or 

undertake modifications will become 

subject to the CAA requirement to 

obtain a PSD permit for their GHG 

emissions. This is because of the 

following EPA regulatory actions. 

By notice dated December 15, 2009, 

pursuant to CAA section 202(a), EPA 

issued, in a single final action, two 

findings 3 regarding GHGs that are 

commonly referred to as the 

‘‘Endangerment Finding’’ and the ‘‘Cause 

or Contribute Finding.’’ In the 

Endangerment Finding, EPA found that 

six long-lived and directly emitted 

GHGs—carbon dioxide (CO2), methane 

(CH4), nitrous oxide (N2O), 

hydrofluorocarbons (HFCs), 

perfluorocarbons (PFCs), and sulfur 

hexafluoride (SF6)—may reasonably be 

anticipated to endanger public health 

and welfare. In the Cause or Contribute 

Finding, the Administrator ‘‘define[d] 

the air pollutant as the aggregate group 

of the same six * * * greenhouse 

gases,’’ 74 FR 66536, and found that the 

combined emissions of this air pollutant 

from new motor vehicles and new motor 

vehicle engines contribute to the GHG 

air pollution that endangers public 

health and welfare. 

By notice dated May 7, 2010, EPA 

published what is commonly known as 

the ‘‘Light-Duty Vehicle Rule’’ (LDVR),4

which for the first time established 

Federal controls on GHGs, those emitted 

from light-duty vehicles. This rule 

specifies, in its applicability provisions, 

the air pollutant subject to control as the 

aggregate group of the six GHGs, 

including CO2, CH4, N2O, HFCs, PFCs, 

and SF6. 75 FR 25686 (40 CFR 86.1818– 

12(a)). 

By notice dated April 2, 2010, EPA 

promulgated what is commonly known 

as the Johnson Memo Reconsideration.5

The Johnson Memo Reconsideration 

interpreted one of the regulatory triggers 

for PSD applicability—the term ‘‘subject 

to regulation’’—and concluded that 

promulgation of the LDVR would render 

GHGs ‘‘subject to regulation’’ and 

thereby trigger PSD applicability for 

GHG-emitting sources on January 2, 

2011, which according to EPA is the 

date upon which the LDVR takes effect. 

By notice dated June 3, 2010, EPA 

published what is commonly known as 

the ‘‘Tailoring Rule,’’6 which limits the 

applicability of PSD to certain GHGemitting sources through a multi-step 

phase-in approach. In the Tailoring 

Rule, EPA established the first two steps 

of the phase-in approach as follows: 

For the first step of this Tailoring Rule, 

which will begin on January 2, 2011, PSD 

* * * requirements will apply to sources’ 

GHG emission only if the sources are subject 

to PSD * * * anyway due to their non-GHG 

pollutants. [We call these sources ‘‘anyway 

sources.’’] Therefore, EPA will not require 

sources or modifications to evaluate whether 

they are subject to PSD * * * requirements 

solely on account of their GHG emissions. 


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7 In the following listed State or local 

jurisdictions, as well as in all Indian country, EPA 

is the PSD permitting authority, implementing the 

Federal PSD regulation at 40 CFR 52.21: American 

Samoa; Arizona (some areas); California (most 

areas); District of Columbia; Guam; Massachusetts; 

New Jersey; New York; Northern Mariana Islands; 

Puerto Rico; Trust Territories; and the Virgin 

Islands. In a smaller number of areas, listed as 

follows, the State or local permitting authority is 

delegated at least partial authority by EPA to 

implement the Federal PSD regulation: Arizona 

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

Illinois; Minnesota; Nevada (most areas); 

Pennsylvania (some areas); and Washington. 

Specifically, for PSD, Step 1 requires that as 

of January 2, 2011, the applicable 

requirements of PSD, most notably, the best 

available control technology (BACT) 

requirement, will apply to projects that 

increase net GHG emissions by at least 

75,000 tpy carbon dioxide equivalent (CO2e) 

but only if the project also significantly 

increase emissions of at least one non-GHG 

pollutant. 

The second step * * * beginning on July 

1, 2011, will phase in additional large 

sources of GHG emissions. New sources 

* * * that emit, or have the potential to emit, 

at least 100,000 tpy CO2e will become subject 

to the PSD * * * requirements. In addition, 

sources that emit or have the potential to 

emit at least 100,000 tpy CO2e and that 

undertake a modification that increases net 

emissions of GHGs by at least 75,000 tpy 

CO2e will also be subject to PSD 

requirements. [We call this the 100,000/ 

75,000 threshold.] For both steps, we note 

that if sources or modifications exceed these 

CO2e-adjusted GHG triggers, they are not 

covered by permitting requirements unless 

their GHG emissions also exceed the 

corresponding mass-based triggers (i.e., 

unadjusted for CO2e.) 

75 FR 31516. In the Tailoring Rule, 

EPA codified the Johnson Memo 

Reconsideration interpretation of the 

term ‘‘subject to regulation’’ and added 

a further interpretation of that term 

designed to expedite the adoption of the 

phase-in approach by the States into 

their SIPs. In addition, in the Tailoring 

Rule, EPA identified the air pollutant as 

the aggregate of the six GHGs, again, 

CO2, CH4, N2O, HFCs, PFCs, and SF6. 

The Tailoring Rule further provided that 

for purposes of determining whether the 

amount of GHG emissions exceeds 

specified thresholds and therefore 

triggers the application of PSD, the 

amount of emissions must be calculated 

on both a mass basis and, as alluded to 

above, a carbon dioxide equivalent 

(CO2e) basis. With respect to the latter, 

according to the rule, ‘‘PSD * * * 

applicability is based on the quantity 

that results when the mass emissions of 

each of these gases is multiplied by the 

Global Warming Potential (GWP) of that 

gas, and then summed for all six gases.’’ 

75 FR 31518. 

Further information on the applicable 

CAA provisions, the Endangerment and 

Cause or Contribute Findings, the 

LDRV, the Johnson Memo 

Reconsideration, and the Tailoring Rule 

is contained in the Tailoring Rule and 

the proposed PSD GHG SIP Call. 

We note that in this rulemaking we 

are not addressing the issue of 

accounting for emissions of GHGs from 

bioenergy and other biogenic sources 

(which are generated during the 

combustion or decomposition of 

biologically based material such as 

forest or agriculture products). When we 

finalized the Tailoring Rule, we noted 

that EPA planned to seek comment on 

how to address emissions of biogenic 

CO2 under the PSD and title V programs 

through future action, such as a separate 

Advance Notice of Proposed 

Rulemaking (ANPR) (75 FR at 31591). 

As a first step, we recently issued a Call 

for Information (CFI) to solicit public 

comment and data on technical issues 

that might be used to consider biomass 

fuels and the emissions resulting from 

their combustion differently with regard 

to applicability under PSD and with 

regard to the BACT review process 

under PSD. See ‘‘Call for Information: 

Information on Greenhouse Gas 

Emissions Associated with Bioenergy 

and Other Biogenic Sources,’’ 75 FR 

41173 (July 15, 2010). 

Additional information on this CFI is 

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

climatechange/emissions/ 

biogenic_emissions.html. In the CFI we 

stated: ‘‘In response to this Call for 

Information, interested parties are 

invited to assist EPA in the following: 

(1) Surveying and assessing the science 

by submitting research studies or other 

relevant information, and (2) evaluating 

different accounting approaches and 

options by providing policy analyses, 

proposed or published methodologies, 

or other relevant information. Interested 

parties are also invited to submit data or 

other relevant information about the 

current and projected scope of GHG 

emissions from bioenergy and other 

biogenic sources.’’ 75 FR at 41174. 

Without prejudging the outcome of 

the CFI process, EPA anticipates that the 

comments we receive in response to the 

CFI, with regard to applicability under 

PSD and with regard to the BACT 

review process under PSD, will inform 

any subsequent actions to address 

applicability of emissions of GHGs from 

bioenergy and other biogenic sources 

under the PSD program. 

C. SIP Inadequacy and Corrective 

Action; Federal Implementation Plans 

The CAA provides a mechanism for 

the correction of SIPs that are 

inadequate, under CAA section 

110(k)(5), which provides: 

(5) Calls for plan revisions 

Whenever the Administrator finds that the 

applicable implementation plan for any area 

is substantially inadequate to * * * comply 

with any requirement of this Act, the 

Administrator shall require the State to revise 

the plan as necessary to correct such 

inadequacies. The Administrator shall notify 

the State of the inadequacies and may 

establish reasonable deadlines (not to exceed 

18 months after the date of such notice) for 

the submission of such plan revisions. 

This provision by its terms authorizes 

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

* * * is substantially inadequate to 

* * * comply with any requirement of 

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

‘‘require the State to revise the [SIP] 

* * * to correct such inadequacies.’’ 

This latter action is commonly known 

as a ‘‘SIP call.’’ In addition, this 

provision provides that EPA must notify 

the State of the inadequacies and 

authorizes EPA to establish a 

‘‘reasonable deadline[] (not to exceed 18 

months after the date of such notice)’’ 

for the submission of the corrective SIP 

revision. 

If the State fails to submit the 

corrective SIP revision by the deadline, 

CAA section 110(c) authorizes EPA to 

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

a required submission.’’ CAA section 

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

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

EPA to ‘‘promulgate a Federal 

implementation plan at any time with 2 

years after the [finding] * * * unless 

the State corrects the deficiency, and 

[EPA] approves the plan or plan 

revision, before [EPA] promulgates such 

[FIP].’’ 

D. States That Do Not Appear To Apply 

the PSD Program to GHG Sources; PSD 

GHG SIP Call 

A number of States do not have an 

approved PSD SIP; as a result, in these 

States 7 the applicable regulatory 

authority is EPA’s regulations, found in 

40 CFR 52.21, which constitute a FIP. 

For sources in these States, either the 

EPA Regional Office or the State acting 

as EPA’s delegatee is the permitting 

authority. In these States, EPA’s 

regulations apply directly. As a result, 

the regulations apply the PSD program 

to any constructing or modifying source 

that emits the requisite quantity of any 

‘‘regulated NSR pollutant,’’ 40 CFR 

52.21(b)(50), which includes any 

‘‘pollutant subject to regulation,’’ which, 

in turn, as discussed earlier in this 

preamble, will cover GHG emissions on 

January 2, 2011. 

All of the other States administer their 

PSD programs through an approved SIP 

and, as a result, they or their local 


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entities are the PSD permitting 

authority. Of these States, most appear 

to have SIP PSD applicability provisions 

that parallel EPA’s regulatory PSD 

applicability provisions and therefore 

apply PSD to any stationary source that 

emits the requisite amount of any air 

pollutant ‘‘subject to regulation.’’ As a 

result, and absent any other provision 

under State law that limits the 

applicability of these provisions, these 

PSD SIPs will cover GHG sources, just 

as the current FIPs do, in these States, 

on and after January 2, 2011. Therefore, 

these States or local authorities will be 

able to act as the permitting authority 

for GHG sources in their States. 

As discussed in the PSD GHG SIP 

Call, it appears, on the basis of 

preliminary research and information 

received that for 13 of the States with 

approved PSD SIPs, the PSD programs 

do not apply to GHG-emitting sources. 

In many of these SIPs, the PSD 

applicability provisions do not mirror 

EPA’s regulatory provisions by applying 

PSD requirements to sources of any air 

pollutant ‘‘subject to regulation.’’ 

Instead, the applicability provisions 

specifically list the air pollutants to 

which the PSD program applies and do 

not include GHGs on that list. Although, 

as discussed in the proposed PSD GHG 

SIP Call, these SIPs may have other 

provisions that provide the State with 

general authority to issue permits that 

meet CAA requirements, until EPA 

receives more information, we will 

proceed on the basis that these SIPs do 

not apply their PSD programs to GHG 

sources. Also as discussed in the 

proposed SIP Call, the State of 

Connecticut explicitly excludes GHGs 

from the State PSD program. In 

addition, as discussed in the proposed 

SIP Call, some States with SIP PSD 

applicability provisions that do mirror 

EPA’s regulatory provisions by applying 

PSD requirements to sources of any air 

pollutant ‘‘subject to regulation’’ 

nevertheless do not appear to apply PSD 

to GHG-emitting sources because these 

States have other State law constraints 

against applying State law or SIP 

requirements without specific State 

action authorizing such application of 

law. 

In the SIP Call, EPA proposed to find 

the SIPs for these 13 States to be 

substantially inadequate, and EPA 

proposed a SIP Call under CAA section 

110(k)(5). EPA stated that it intends to 

finalize the finding of substantial 

inadequacy and the SIP Call by 

December 1, 2010. EPA further stated 

that it would allow States 12 months 

from the date of signing the finding and 

the SIP Call for States to submit their 

corrective SIP revisions, but that States 

could indicate to EPA that they do not 

object to a shorter deadline, and in that 

event EPA would impose that shorter 

deadline. 

In the proposed SIP Call, EPA also 

solicited comment on whether the 

approved SIPs for those other States 

(listed in table II–2 of this preamble, for 

which EPA was not proposing a SIP 

Call) do or do not apply their PSD 

programs to GHG-emitting sources. EPA 

asked the other States to review their 

SIPs and, if their SIPs fail to apply PSD 

to GHG-emitting sources, advise EPA by 

the end of the comment period of the 

State’s inadequacy and also inform EPA 

if they do not object to a shorter 

deadline for submittal of the required 

corrective SIP revision. 

In the proposed SIP Call, we stated 

that the required corrective SIP revision 

could constitute a simple addition of 

GHGs to the list of pollutants subject to 

PSD applicability, with GHGs defined as 

the aggregate of six pollutants—CO2, 

CH4, N2O, HFCs, PFCs, and SF6. 

III. Proposed Federal Implementation 

Plan 

In this rulemaking, we propose a FIP, 

under CAA section 110(c)(1)(A), for any 

State—if ultimately there is any—for 

which we issue a finding of failure to 

submit a SIP submission required under 

the PSD GHG SIP Call. 

A. Timing for FIP 

If any of the States for which we issue 

the SIP Call does not meet its SIP 

submittal deadline, we will immediately 

issue a finding of failure to submit a 

required SIP submission, under CAA 

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

thereafter promulgate a FIP for the State. 

This timing for FIP promulgation is 

authorized under CAA section 110(c)(1), 

which authorizes us to promulgate a FIP 

‘‘at any time within 2 years after’’ finding 

a failure to submit a required SIP 

submission. We intend to take these 

actions immediately in order to 

minimize any period of time during 

which larger-emitting sources may be 

under an obligation to obtain PSD 

permits for their GHGs when they 

construct or modify, but no permitting 

authority is authorized to issue those 

permits. 

After we have promulgated a FIP, it 

must remain in place until the State 

submits a SIP revision and we approve 

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

Under the present circumstances, we 

will act on a SIP revision to apply the 

PSD program to GHG sources as quickly 

as possible. Upon request of the State, 

we will parallel-process the SIP 

submittal. That is, if the State submits 

to us the draft SIP submittal for which 

the State intends to hold a hearing, we 

will propose the draft SIP submittal for 

approval and open a comment period 

during the same time as the State 

hearing. If the SIP submittal that the 

State ultimately submits to us is 

substantially similar to the draft SIP 

submittal, we will proceed to take final 

action without a further proposal or 

comment period. If we approve such a 

SIP revision, we will at the same time 

rescind the FIP. 

B. Substance of FIP 

The proposed FIP constitutes the EPA 

regulations found in 40 CFR 52.21, 

including the PSD applicability 

provisions, with a limitation to assure 

that, strictly for purposes of this 

rulemaking, the FIP applies only to 

GHGs. Under the PSD applicability 

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

PSD program applies to sources that 

emit the requisite amounts of any 

‘‘regulated NSR pollutant[s],’’ including 

any air pollutant ‘‘subject to regulation.’’ 

However, in States for which EPA 

would promulgate a FIP to apply PSD to 

GHG-emitting pollutants, the approved 

SIP already applies PSD to other air 

pollutants. To appropriately limit the 

scope of the FIP, EPA proposes in this 

action to amend 40 CFR 52.21(b)(50) to 

limit the applicability provision to 

GHGs. 

We propose this FIP because it would, 

to the greatest extent possible, mirror 

EPA regulations (as well as those of 

most of the States). In addition, this FIP 

would readily incorporate the phase-in 

approach for PSD applicability to GHG 

sources that EPA has developed in the 

Tailoring Rule and expects to develop 

further through additional rulemaking. 

As explained in the Tailoring Rule, 

incorporating this phase-in approach— 

including Steps 1 and 2 of the phase-in 

as promulgated in the Tailoring Rule— 

can be most readily accomplished 

through interpretation of the terms in 

the definition ‘‘regulated NSR 

pollutant,’’ including the term ‘‘subject 

to regulation.’’ 

In accordance with the Tailoring Rule, 

as described earlier in this preamble, the 

FIP would apply in Step 1 of the phasein approach only to ‘‘anyway sources’’ 

(that is, sources undertaking 

construction or modification projects 

that are required to apply for PSD 

permits anyway due to their non-GHG 

emissions and that emit GHGs in the 

amount of at least 75,000 tpy on a CO2e 

basis) and would apply in Step 2 of the 

phase-in approach to both ‘‘anyway 

sources’’ and sources that meet the 

100,000/75,000-tpy threshold (that is, 

(i) sources that newly construct and 

would not be subject to PSD on account 


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of their non-GHG emissions, but that 

emit GHGs in the amount of at least 

100,000 tpy CO2e, and (ii) existing 

sources that emit GHGs in the amount 

of at least 100,000 tpy CO2e, that 

undertake modifications that would not 

trigger PSD on the basis of their nonGHG emissions, but that increase GHGs 

by at least 75,000 tpy CO2e). 

Under the FIP, with respect to permits 

for ‘‘anyway sources,’’ EPA will be 

responsible for acting on permit 

applications for only the GHG portion of 

the permit, and the State will retain 

responsibility for the rest of the permit. 

Likewise, with respect to permits for 

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

tpy threshold, our preferred approach— 

for reasons of consistency—is that EPA 

will be responsible for acting on permit 

applications for only the GHG portion of 

the permit, that the State permitting 

authorities will be responsible for the 

non-GHG portion of the permit, and 

EPA will coordinate with the State 

permitting authority as needed in order 

to fully cover any non-GHG emissions 

that, for example, are subject to BACT 

because they exceed the significance 

levels. We recognize that questions may 

arise as to whether the State permitting 

authorities have authority to permit 

non-GHG emissions; as a result, we 

solicit comment on whether EPA should 

also be the permitting authority for the 

non-GHG portion of the permit for these 

latter sources. 

We propose that the FIP consist of the 

regulatory provisions included in 40 

CFR 52.21, except that the applicability 

provision would include a limitation so 

that it applies for purposes of this 

rulemaking only to GHGs. 

C. Primacy of the SIP Process 

This proposal is secondary to our 

overarching goal, which is to assure that 

in every instance, it will be the State 

that will be that permitting authority. 

EPA continues to recognize that the 

States are best suited to the task of 

permitting because they and their 

sources have experience working 

together in the State PSD program to 

process permit applications. EPA seeks 

to remain solely in its primary role of 

providing guidance and acting as a 

resource for the States as they make the 

various required permitting decisions 

for GHG emissions. 

Accordingly, beginning immediately 

we intend to work closely with the 

States—as we have already begun to do 

since earlier in the year—to help them 

promptly develop and submit to us their 

corrective SIP revisions that extend 

their PSD program to GHG-emitting 

sources. Moreover, we intend to 

promptly act on their SIP submittals. 

Again, EPA’s goal is to have each and 

every affected State have in place the 

necessary permitting authorities by the 

time businesses seeking construction 

permits need to have their applications 

processed and the permits issued—and 

to achieve that outcome by means of 

engaging with the States directly 

through a concerted process of 

consultation and support. 

EPA is taking up the additional task 

of proposing this FIP and the 

companion SIP Call action only because 

the Agency believes it is compelled to 

do so by the need to assure businesses, 

to the maximum extent possible and as 

promptly as possible, that a permitting 

authority is available to process PSD 

permit applications for GHG-emitting 

sources once they become subject to 

PSD requirements on January 2, 2011. 

In order to provide that assurance, we 

are obligated to recognize, as both States 

and the regulated community already 

do, that there may be circumstances in 

which States are simply unable to 

develop and submit those SIP revisions 

by January 2, 2011, or for some period 

of time beyond that date. As a result, 

absent further action by EPA, those 

States’ affected sources confront the risk 

that they may have to put on hold their 

plans to construct or modify, a risk that 

may have adverse consequences for the 

economy. 

Given these exigent circumstances, 

EPA proposes this plan, within the 

limits of our power, with the intent to 

make a back-up permitting authority 

available—and to send a signal of 

assurance expeditiously in order to 

reduce uncertainty and thus facilitate 

businesses’ planning. Within the design 

of the CAA, it is EPA that must fill that 

role of back-up permitting authority. 

This FIP and the companion SIP Call 

action fulfill the CAA requirements to 

establish EPA in that role. 

At the same time, we propose these 

actions with the intent that States retain 

as much discretion as possible in the 

hand of the States. In the SIP Call 

rulemaking, EPA proposes that States 

may choose the deadline they consider 

reasonable for submission of their 

corrective SIP revision. If, under CAA 

requirements, we are compelled to 

promulgate a FIP, we invite the affected 

State to accept a delegation of authority 

to implement that FIP, so that it will 

still be the State that processes the 

permit applications, albeit operating 

under Federal law. In addition, if we are 

compelled to issue a FIP, we intend to 

continue to work closely with the State 

to assist in developing and submitting 

for approval its corrective SIP revision, 

so as to minimize the amount of time 

that the FIP must remain in place. 

Finally, we can report that in informal 

conversations, officials of various States 

have acknowledged the need for our SIP 

Call and FIP actions. That is, they have 

acknowledged that a short-term FIP may 

be necessary in their States to establish 

permitting authority to construct and 

modify in accordance with 

environmental safeguards for these 

sources. In addition, some States have 

indicated that they will closely consider 

their opportunities to accept delegation 

of the permitting responsibilities. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

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

action is a ‘‘significant regulatory action’’ 

because it raises novel legal or policy 

issues. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action imposes new information 

collection burden. The action is based 

on information concerning whether the 

States have authority to regulate GHGs 

under their SIP PSD provisions, which 

information is already requested of the 

States in the Tailoring Rule. The OMB 

has previously approved the 

information collection requirements 

contained in the existing regulations for 

PSD (see, e.g., 40 CFR 52.21) and title 

V (see 40 CFR parts 70 and 71) under 

the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2060–0003 and OMB control number 

2060–0336 respectively. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

The Tailoring Rule does not establish 

any new requirements (either control or 

reporting) for any sources. It merely 

establishes the thresholds that trigger 

NSR and title V for GHG sources. The 

trigger for GHG and title V is not due to 

the Tailoring Rule but the result of the 

endangerment finding and the LDVR. 

The NSR and title V ICRs will need to 

be modified to include the new sources 

that will be triggered due to the GHG 

requirements (in July 2011). The Agency 

anticipates making such modifications 

upon renewal of the NSR and title V 

ICRs at the end of the year. 


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C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this notice on small entities, small 

entity is defined as: (1) A small business 

that is a small industrial entity as 

defined in the U.S. Small Business 

Administration (SBA) size standards 

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

governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

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

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

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Although this rule would lead to 

Federal permitting requirements for 

certain sources, those sources are large 

emitters of GHGs and tend to be large 

sources. We continue to be interested in 

the potential impacts of the proposed 

rule on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA, 2 U.S.C. 1531– 

1538) for State, local or tribal 

governments or the private section. The 

action imposes no enforceable duty on 

any State, local or tribal governments or 

the private sector. This action merely 

prescribes EPA’s action for States that 

do not meet their existing obligation for 

PSD SIP submittal. Thus, this proposed 

rule is not subject to the requirements 

of sections 202 or 205 of UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action merely prescribes EPA’s action 

for States that do not meet their existing 

obligation for PSD SIP submittal. 

E. Executive Order 13132—Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action 

merely prescribes EPA’s action for 

States that do not meet their existing 

obligation for PSD SIP submittal. Thus, 

Executive Order 13132 does not apply 

to this action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This action does not impose a FIP 

in any tribal area. Thus, Executive Order 

13175 does not apply to this action. 

Although Executive Order 13175 does 

not apply to this proposed rule, EPA 

specifically solicits additional comment 

on this proposed action from tribal 

officials. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it merely prescribes 

EPA’s action for States that do not meet 

their existing obligation for PSD SIP 

submittal. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211 (66 FR 28355 (May 22, 2001)), 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. This 

action merely prescribes EPA’s action 

for States that do not meet their existing 

obligation for PSD SIP submittal. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the U.S. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. This proposed rule 

merely prescribes EPA’s action for 

States that do not meet their existing 

obligation for PSD SIP submittal. 

K. Determination Under Section 307(d) 

Pursuant to sections 307(d)(1)(B) of 

the CAA, this action is subject to the 

provisions of section 307(d). Section 

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

of section 307(d) apply to ‘‘the 

promulgation or revision of an 

implementation plan by the 

Administrator under section 110(c) of 

this Act.’’ 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
53892 Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules 

V. Statutory Authority 

The statutory authority for this action 

is provided by sections 110, 165, 301, 

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

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

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

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

7407(d)). 

Page 46 of 49—Action To Ensure 

Authority To Issue Permits Under the 

Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas 

Emissions: Federal Implementation 

Plan 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon dioxide, 

Carbon dioxide equivalents, Carbon 

monoxide, Greenhouse gases, 

Hydrofluorocarbons, Intergovernmental 

relations, Lead, Methane, Nitrogen 

dioxide, Nitrous oxide, Ozone, 

Particulate matter, Perfluorocarbons, 

Reporting and recordkeeping 

requirements, Sulfur hexafluoride, 

Sulfur oxides, Volatile organic 

compounds. 

Dated: August 12, 2010. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 52—[AMENDED] 

1. The authority citation for part 52 

continues to read as follows: 

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

2. Section 52.37 is added to read as 

follows: 

§ 52.37 What are the requirements of the 

Federal Implementation Plans (FIPs) to 

issue permits under the Prevention of 

Significant Deterioration requirements to 

sources that emit greenhouse gases? 

(a) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met to the extent the plan, as approved, 

of the States listed in paragraph (b) of 

this section does not apply with respect 

to emissions of the pollutant GHGs from 

certain stationary sources. Therefore, 

the provisions of § 52.21 except 

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

of the plan for each State listed in 

paragraph (b) of this section for: (1) 

Beginning January 2, 2011, the pollutant 

GHGs from stationary sources described 

in § 52.21(b)(49)(iv), and [Alternative 1 

for paragraph (a)(2)] 

(2) Beginning July 1, 2011, in addition 

to the pollutant GHGs from sources 

described under paragraph (a)(1) of this 

section, the pollutant GHGs from 

stationary sources described in 

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

paragraph (a)(2)] 

(2) Beginning July 1, 2011, in addition 

to the pollutant GHGs from sources 

described under paragraph (a)(1) of this 

section, stationary sources described in 

§ 52.21(b)(49)(v). 

(b) Paragraph (a) of this section 

applies to: 

(1) Alaska; 

(2) Arizona, Pinal County; Rest of 

State (Excludes Maricopa County, Pima 

County, and Indian Country); 

(3) Arkansas; 

(4) California, Sacramento 

Metropolitan AQMD; 

(5) Connecticut; 

(6) Florida; 

(7) Idaho; 

(8) Kansas; 

(9) Kentucky, Jefferson County and 

Rest of State; 

(10) Nebraska; 

(11) Nevada, Clark County; 

(12) Oregon; 

(13) Texas. 

(c) For purposes of this section, 

references to the ‘‘pollutant GHGs’’ refers 

to the pollutant GHGs, as described in 

§ 52.21(b)(49)(i). 

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

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0107; FRL–9190–7] 

RIN–2060–AQ08 

Action To Ensure Authority To Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas 

Emissions: Finding of Substantial 

Inadequacy and SIP Call 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to find 

that 13 States with EPA-approved State 

implementation plan (SIP) New Source 

Review Prevention of Significant 

Deterioration (PSD) programs are 

substantially inadequate to meet Clean 

Air Act (CAA) requirements because 

they do not appear to apply PSD 

requirements to GHG-emitting sources. 

For each of these States, EPA proposes 

to require the State (through a ‘‘SIP 

Call’’) to revise its SIP as necessary to 

correct such inadequacies. EPA 

proposes an expedited schedule for 

States to submit their corrective SIP 

revision, in light of the fact that as of 

January 2, 2011, certain GHG-emitting 

sources will become subject to the PSD 

requirements and may not be able to 

obtain a PSD permit in order to 

construct or modify. As for the rest of 

the States with approved SIP PSD 

programs, EPA solicits comment on 

whether their PSD programs do or do 

not apply to GHG-emitting sources. If, 

on the basis of information EPA 

receives, EPA concludes that the SIP for 

such a State does not apply the PSD 

program to GHG-emitting sources, then 

EPA will proceed to also issue a finding 

of substantial inadequacy and a SIP Call 

for that State. 

DATES: Comments. Comments must be 

received on or before October 4, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0107 by one of the following 

methods: 

• http://www.regulations.gov: Follow 

the online instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–9744. 

• Mail: Attention Docket ID No. EPA– 

HQ–OAR–2010–0107, U.S. 

Environmental Protection Agency, EPA 

West (Air Docket), 1200 Pennsylvania 

Avenue, NW., Mail code: 6102T, 

Washington, DC 20460. Please include a 

total of 2 copies. In addition, please 

mail a copy of your comments on the 

information collection provisions to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

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

DC 20503. 

• Hand Delivery: U.S. Environmental 

Protection Agency, EPA West (Air 

Docket), 1301 Constitution Avenue, 

NW., Room 3334, Washington, DC 

20004, Attention Docket ID No. EPA– 

HQ–OAR–2010–0107. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2010– 

0107. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1