Thursday, 

December 30, 2010 

Part V 

Environmental 

Protection Agency 

40 CFR Part 52 

Limitation of Approval of Prevention of 

Significant Deterioration Provisions 

Concerning Greenhouse Gas EmittingSources in State Implementation Plans; 

Final Rule 


emcdonald on DSK2BSOYB1PROD with RULES3
82536 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2009–0517; FRL–9244–9] 

RIN 2060–AQ62 

Limitation of Approval of Prevention of 

Significant Deterioration Provisions 

Concerning Greenhouse Gas EmittingSources in State Implementation 

Plans; Final Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final Rule. 

SUMMARY: This action is another in a 

series of steps EPA is taking to 

implement the Prevention of Significant 

Deterioration (PSD) program for 

greenhouse gas (GHG)-emitting sources. 

EPA is finalizing its proposed 

rulemaking to narrow its previous 

approval of State Implementation Plan 

(SIP) PSD programs in 24 states that 

apply to GHG-emitting sources. 

Specifically, EPA is withdrawing its 

previous approval of those programs to 

the extent they apply PSD to GHGemitting sources below the thresholds in 

the final Tailoring Rule, which EPA 

promulgated by Federal Register notice 

dated June 3, 2010. Having narrowed its 

prior approval, EPA asks that each 

affected state withdraw from EPA 

consideration the part of its SIP that is 

no longer approved. The states for 

whose SIPs EPA is narrowing approval 

are: Alabama, California, Colorado, 

Georgia, Indiana, Iowa, Louisiana, 

Maine, Maryland, Mississippi, Missouri, 

New Hampshire, New Mexico, North 

Carolina, Ohio, Oklahoma, Rhode 

Island, South Carolina, South Dakota, 

Tennessee, Utah, Vermont, Virginia, and 

Wisconsin. 

DATES: This action is effective on 

December 30, 2010. 

ADDRESSES: EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2009–0517. 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., Confidential Business Information 

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. 

Publicly available docket materials are 

available either electronically in 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 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. 

Michael S. Brooks, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–01), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–3539; fax 

number: (919) 541–5509; e-mail 

address: brooks.michaels@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 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 ................................. Lynorae Benjamin Chief, Regulatory Development Section, Air, Pesticides and Toxics Management Division, 

EPA Region 4, Atlanta Federal Center, 61 Forsyth 

Street, SW, Atlanta, GA 30303–3104, (404) 562–9040.

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. 


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1Only the PSD provisions are relevant for this 

action. 

2The Tailoring Rule thresholds establish 

applicability of the PSD permitting program to 

GHG-emitting sources only if they emit GHG in 

amounts above the 75,000/100,000 tpy CO2e. 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

rule 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) to obtain 

a PSD permit for GHGs for projects 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. 

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: 

Outline 

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. Action 

B. Legal Basis 

C. Legal Mechanisms for EPA Action 

V. Comments and Responses 

A. Comments Regarding the Legal 

Mechanism for the Current Action 

B. Comments on Potential Triggering of 

Anti-Backsliding Provisions 

C. Comments on Persisting Practical 

Difficulties at the State Level 

D. Comments on Preferred Alternative 

Courses of Action 

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 

VIII. Statutory Language 

II. Overview of the Final Rule 

This action finalizes EPA’s proposal 

to narrow the approval of SIPs 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. The Tailoring Rule, 

which followed a series of actions by 

EPA that will trigger PSD applicability 

to GHG-emitting sources as of January 2, 

2011, limits PSD applicability for GHG 

emissions to larger sources. 

The Tailoring Rule accomplished this 

purpose by setting thresholds at which 

GHG emissions become subject to 

regulation for PSD and Title V 

purposes.1 Under the Tailoring Rule, a 

source becomes subject to PSD 

requirements based on its GHG 

emissions only if it both emits GHGs at 

or above the Tailoring Rule thresholds,2

which are calculated on a carbon 

dioxide equivalent (CO2e) basis; and it 

emits GHGs at levels above the statutory 

100/250 tons per year (tpy) mass-based 

threshold generally applicable to all 

PSD-regulated pollutants, and—if it is 

being modified—has or will have an 

emission increase on a mass basis. The 

Tailoring Rule thresholds were designed 

to relieve the overwhelming 

administrative burdens and costs 

associated with the dramatic increase in 

permitting burden that would have 

resulted from applying PSD at the 

statutory levels on January 2, 2011. 

Instead, the Tailoring rule established a 

phasing in of applicability for GHG 

sources, starting with the largest GHG 

emitters. 

However, in proposing the Tailoring 

Rule, EPA recognized that even after it 

finalized the Tailoring Rule, most of the 

SIPs with approved PSD programs 

would—until they were revised— 


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3Specifically, EPA is narrowing its approval of 

the SIPs for 3 districts within California: 

Mendocino County, North Coast Unified, and 

Northern Sonoma County. 

4EPA is narrowing its approval of both the SIP 

for New Mexico, as well as the SIP for Albuquerque. 

5 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66,496 

(December 15, 2009). 

6 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17,004 (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. 

7 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25,324 (May 7, 2010). 

8 ‘‘Prevention of Significant Deterioration and 

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

75 FR 31,514 (June 3, 2010). 

continue to apply PSD at the statutory 

thresholds, even though the states 

would not have sufficient resources to 

implement the PSD program at those 

levels. Accordingly, the proposed 

Tailoring Rule included a proposal to 

narrow EPA’s previous approval of SIPs 

such that the SIPs would only apply to 

GHG emissions at or above the higher 

thresholds established in the Tailoring 

Rule. When EPA finalized the Tailoring 

Rule, EPA did not, however, 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. EPA is now finalizing that 

part of the Tailoring Rule proposal in 24 

states. 

Thus, in this action, EPA is narrowing 

its previous approval of those approved 

PSD SIP programs that apply PSD to 

GHG-emitting sources. Specifically, EPA 

is withdrawing their previous approvals 

of those programs to the extent the SIPs 

apply PSD to increases in GHG 

emissions from GHG-emitting sources 

with emissions below the Tailoring Rule 

thresholds. The portions of the PSD 

programs regulating GHGs from GHGemitting sources with emissions at or 

above the Tailoring Rule thresholds 

remain approved. 

The effect of EPA narrowing its 

approval in this manner is that the 

provisions of previously approved SIPs 

that apply PSD to GHG emissions 

increases from sources emitting GHGs 

below the Tailoring Rule thresholds will 

have the status of having been 

submitted by the state but not yet acted 

upon by EPA. EPA suggests that affected 

states take one of two actions to 

withdraw these no-longer-approved SIP 

PSD provisions. The state may submit a 

SIP revision for EPA’s approval that 

incorporates the Tailoring Rule 

thresholds into the SIP. EPA will treat 

the approval of such a submission as 

removing these no-longer-approved 

provisions. Or, a state may submit a 

letter to EPA stating that it is 

withdrawing these provisions from 

EPA’s consideration. For any state that 

takes neither of these actions, EPA 

intends to propose to disapprove those 

provisions. The disapproval, if 

finalized, will not result in the need to 

resubmit another SIP revision, 

sanctions, or a federal implementation 

plan (FIP). This is because the 

provisions of the SIP that would be 

disapproved are not required for any 

purpose under the CAA or necessary to 

meet any CAA standard. 

This action ensures that the federal 

law applicable in the affected states 

does not require PSD permitting for 

GHG emissions below the final 

Tailoring Rule thresholds as of January 

2, 2011. Once the states take action to 

amend their state laws, then sources in 

the affected states will not be subject to 

federal or state requirements to obtain 

permits at the lower 100/250 tpy level. 

Most, if not all, of the affected states 

have already begun taking steps toward 

completing these changes at the state 

level, and plan to complete changes to 

their state law and make those changes 

effective by January 2, 2011. In general, 

these states are now in the process of (or 

have recently completed) incorporating 

the state law changes into SIP revisions 

to submit to EPA for approval. The 

combination of this rule and state 

actions will, in the affected states, 

eliminate, or at least greatly minimize, 

the time during which GHG-emitting 

sources that are below the Tailoring 

Rule thresholds will be subject to PSD 

in the state under either state or federal 

law while SIP revisions are being 

developed, submitted, and approved. 

The states for whose SIPs EPA is 

narrowing approval are: Alabama, 

California,3 Colorado, Georgia, Indiana, 

Iowa, Louisiana, Maine, Maryland, 

Mississippi, Missouri, New Hampshire, 

New Mexico,4 North Carolina, Ohio, 

Oklahoma, Rhode Island, South 

Carolina, South Dakota, Tennessee, 

Utah, Vermont, Virginia, and 

Wisconsin. 

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. 

Under the CAA PSD program, major 

stationary sources must obtain a permit 

prior to undertaking construction or 

modification projects that would result 

in specified amounts of new or 

increased emissions of air pollutants 

that are subject to regulation under 

other provisions of the CAA. CAA 

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

must, among other things, include 

emission limitations associated with the 

best available control technology 

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

In recent months, EPA completed four 

distinct actions related to greenhouse 

gases under the Clean Air Act. These 

actions include, as they are commonly 

called, the ‘‘Endangerment Finding’’ and 

‘‘Cause or Contribute Finding,’’ which 

we issued in a single final action,5 the 

‘‘Johnson Memo Reconsideration (also 

called the ‘‘Timing Decision’’),’’ 6 the 

‘‘Light-Duty Vehicle Rule (LDVR),’’ 7 and 

the ‘‘Tailoring Rule.’’ 8 In the 

Endangerment Finding, which is 

governed by CAA § 202(a), the 

Administrator exercised her judgment, 

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 at 66,496. 

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 greenhouse gases for new 

motor vehicles built for model years 

2012–2016. 75 FR 25,324. The other two 

actions, the Johnson Memo 

Reconsideration 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 

greenhouse gases due to the Vehicle 

Rule establishing the first controls for 

greenhouse gases under the Act. More 

specifically, the Johnson Memo 

Reconsideration provided EPA’s 

interpretation of a pre-existing 

definition in its PSD regulations 

delineating the ‘‘pollutants’’ that are 

taken into account in determining 

whether a source must obtain a PSD 

permit and the pollutants each permit 

must control. Regarding the Vehicle 

Rule, the Johnson Memo 

Reconsideration stated that such 

regulations, when they take effect on 

January 2, 2011, will, by operation of 

the applicable CAA requirements, 

subject GHG-emitting sources to PSD 


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9The final Tailoring Rule also established a 

threshold of 100,000 tpy CO2e for when a source 

would be considered a ‘‘major source’’ subject to 

title V permitting under 40 CFR part 70 and part 

71. This rule addresses issues related to adoption 

of the Tailoring Rule thresholds for state PSD 

programs only. EPA will promulgate a separate rule 

to address issues related to the adoption of the 

Tailoring Rule threshold for approved state 

operating permit programs. EPA notes, however, 

that some state title V programs are incorporated 

into SIPs and that further corrections of the SIP may 

be necessary in such cases. 

10Unlike the proposed Tailoring Rule, the final 

Tailoring Rule did not set significance levels for 

GHG emissions. 

requirements. 75 FR 17,004. The 

Tailoring Rule established a series of 

steps by which PSD and Title V permit 

requirements for greenhouse gases are 

phased in, starting with the largest 

sources of greenhouse gas emissions. 75 

FR 31,514. In addition, by Federal 

Register notice dated September 2, 

2010, EPA proposed to find that the 

SIPs for 13 states with approved PSD 

programs are substantially inadequate to 

meet CAA requirements because they 

fail to apply their PSD program to GHGemitting sources, and EPA proposed to 

issue a ‘‘SIP call’’ under CAA section 

110(k)(5) for those states that would 

require submission of a corrective SIP 

revision. 75 FR 53,892. At the same 

time, EPA proposed a FIP, under CAA 

§ 110(c), for those states. 75 FR 53,883. 

In the proposed Tailoring Rule, EPA 

proposed a major stationary source 

threshold of 25,000 tpy for GHG on a 

CO2e basis, for at least a specified 

period. EPA recognized that even so, 

many SIPs with approved PSD programs 

would require PSD permitting of GHGemitting sources at the 100/250 tpy 

statutory major source threshold 

generally applicable to regulated New 

Source Review (NSR) pollutants, as well 

as at the ‘‘any increase’’ level for 

modifications, and that these SIPs 

would remain in place even after we 

finalized the Tailoring Rule. Thus, in 

those states, until states revised those 

SIPs, sources would remain subject to 

these thresholds as a matter of both state 

and federal law even after we finalized 

the Tailoring Rule. This would result in 

the same problems of overwhelming 

administrative burdens and costs that 

we designed the Tailoring Rule to 

address. 

EPA also recognized that the solution 

to these problems lay in the form of SIP 

revisions that EPA would approve to 

raise the thresholds in approved state 

PSD permitting programs to conform to 

the Tailoring Rule (or, in the alternative, 

in the form of increased state resources). 

Until the states could develop and 

submit for approval such SIP revisions, 

and EPA could approve them, EPA 

proposed to narrow its approval of the 

existing EPA-approved SIPs that would 

regulate GHG emissions at levels below 

the Tailoring Rule thresholds. 

Specifically, EPA proposed to narrow its 

approval of the permitting threshold 

provisions, including the significance 

threshold provisions in the SIPs, to the 

extent those provisions required PSD 

permits for sources whose GHG 

emissions fall below the proposed 

Tailoring Rule thresholds. EPA based its 

proposed narrowing of approval on the 

fact that while the SIPs would require 

PSD to apply at the 100/250 tpy levels 

(and at the any mass increase level for 

modifications), the states do not have 

the resources to implement the program 

at that level, and thus the SIPs were 

inconsistent with CAA section 

110(a)(2)(E)(i), which requires that states 

provide necessary assurances that they 

have adequate funding and personnel to 

implement their SIPs. EPA proposed to 

rely, as the legal mechanisms for the 

proposed narrowing of approval, on 

CAA section 301(a), which provides the 

EPA Administrator with general 

regulatory authority to issue regulations 

necessary to carry out her CAA 

functions; and on the authority of an 

agency to reconsider its actions inherent 

in the Administrative Procedures Act 

(APA) section 553. In the alternative, 

EPA proposed to rely on the error 

correction provision of CAA section 

110(k)(6). EPA did not propose to issue 

a SIP call under CAA section 110(k)(5) 

for these SIP provisions. 

In the final Tailoring Rule, EPA 

established a schedule to phase-in 

threshold levels of GHG emissions 

below which a source will not be 

required to obtain a PSD permit.9 EPA 

established the initial levels (which are 

higher than those in the proposed 

Tailoring Rule) in the first two steps of 

the phase-in schedule, committed the 

agency to take future steps addressing 

smaller sources, and excluded the 

smallest sources from PSD permitting 

for GHG emissions until at least April 

30, 2016. 

In addition, in the final Tailoring 

Rule, EPA chose revision of the 

definition of the term ‘‘subject to 

regulation’’ as the mechanism to revise 

the PSD thresholds for GHG. Under the 

PSD program, a major stationary source 

is subject to PSD. A major stationary 

source is defined as a source that emits 

100/250 tpy on a mass basis of a 

regulated NSR pollutant, and a 

regulated NSR pollutant, in turn, is 

defined as, among other things, a 

pollutant that is subject to regulation 

under the CAA. In the final Tailoring 

Rule, EPA defined the term ‘‘subject to 

regulation’’ so that GHG emissions from 

sources at or above specified thresholds 

(depending on the circumstances, 

75,000 and/or 100,000 tpy on a CO2e 

basis) are treated as subject to 

regulation. Thus, sources that emit that 

amount are subject to PSD as long as 

that amount of GHG also exceeds 100/ 

250 tpy on a mass basis and with 

respect to modifications there is a 

defined emissions increase.10

Some states advised EPA that it is 

likely they would be able to implement 

the Tailoring Rule thresholds by 

interpreting the term ‘‘subject to 

regulation’’ in their SIPs. A state’s 

implementation of the Tailoring Rule in 

this manner, or in any other manner, 

prior to January 2, 2011, obviates the 

need for EPA to narrow its approval of 

the state’s SIP. Thus, in the final 

Tailoring Rule, EPA delayed final action 

on its proposal to narrow approval for 

any SIP-approved PSD programs. EPA 

deferred making any decision regarding 

whether to narrow its approval of any 

SIPs until after learning the process and 

time-line for states to implement the 

Tailoring Rule. Based on information it 

had received, EPA expected that many 

states would quickly adopt the 

interpretation of the term ‘‘subject to 

regulation’’ used in the final Tailoring 

Rule, and thereby obviate the need for 

EPA to narrow its approval or take any 

other action with respect to the SIP. 

Thus, 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 SIPs. 

Almost all states submitted 60-day 

letters. The letters, in conjunction with 

other information EPA received, 

indicate that the states, localities, and 

other jurisdictions may be divided into 

three categories. The first, which 

includes 7 states, 35 subsections of 

states, the District of Columbia, 

American Samoa, Guam, Puerto Rico, 

the U.S. Virgin Islands, and Indian 

Territory, does not have an approved 

SIP PSD permitting program. Instead, 

federal requirements apply. Thus, in 

these jurisdictions, the thresholds in the 

Tailoring Rule will apply without 

further action. 

The second category includes the 

states (or districts within states) whose 

SIPs do not appear to apply the PSD 

program to GHG-emitting sources. As a 

result, EPA proposed a SIP call and FIP 

for these states by notice dated 

September 2, 2010. 75 FR 53892. Based 

on the 60-day letters, letters EPA 

received in response to the proposed 

SIP call and FIP (which we refer to as 


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the 30-day letters), and additional 

information EPA has received, EPA 

finalized (at about the same time as this 

action) a SIP call in 13 states, including 

4 districts within states. 

The remaining 30 states and 6 

districts within states, the third 

category, have approved SIPs that apply 

their PSD program to GHG-emitting 

sources. In those states, absent further 

action, sources emitting GHGs at or 

above the 100/250 tpy levels will be 

subject to PSD requirements as of 

January 2, 2011, if they construct or 

modify. Of these localities, 6 states and 

4 districts within states have indicated 

that they would interpret their SIPs to 

regulate GHG emissions only above the 

Tailoring Rule thresholds, and no 

further action was needed to do so. EPA 

approved a SIP for 1 state—New York— 

for the first time in November 2010, and 

that original approval itself was limited 

to exclude the part of the PSD program 

that applies to GHG emissions below the 

Tailoring Rule thresholds. All or part of 

twenty-four states, including 4 districts, 

indicated that they would need to 

submit SIP revisions to EPA in order to 

incorporate the Tailoring Rule 

thresholds. Some of these states 

indicated, however, that they would not 

be able to complete these changes prior 

to January 2, 2011. Some states have 

completed their SIP revisions and 

submitted them to EPA, and EPA 

expects to take final action on them 

promptly. EPA has only signed SIP 

revision approvals for two states, 

Alabama and Mississippi, though 

neither of these approvals has yet been 

published as of the signing of this rule. 

These states—including those that have 

indicated that they would submit SIP 

revisions to EPA to incorporate the 

Tailoring Rule thresholds, but for which 

EPA has not approved such SIP revision 

as of the date of this rule—are included 

in this rule. 

It should be noted that this rule 

focuses on eliminating the PSD 

obligations under federal law for 

sources below the Tailoring Rule 

thresholds in states in the third 

category, those with approved SIPs that 

do not incorporate the Tailoring Rule. 

The sources in those states also have 

permitting obligations under state law. 

EPA has strongly encouraged states to 

eliminate the state law obligations by 

revising their state law as promptly as 

possible. Such a revision to state law 

can eliminate those sources’ state 

obligations, even before the state is able 

to process the revision as a SIP revision 

and submit it to EPA for approval. In 

almost all cases, states are proceeding to 

revise their state law to reflect the 

Tailoring Rule thresholds and will have 

done so by January 2, 2011, or very soon 

thereafter. 

In their 60-day letters, none of the 

states indicated either that they 

intended to regulate GHG-emitting 

sources at a level below the Tailoring 

Rule thresholds, or that they could or 

would increase their permitting 

resources to do so. 

IV. Final Rule 

A. Action 

EPA is taking final action to narrow 

its approval of the SIPs for certain 

states. In the final Tailoring Rule, EPA 

established levels of GHG emissions 

below which PSD provisions do not 

apply. However, some SIPs currently 

apply the PSD program to a source that 

emits GHGs below the Tailoring Rule 

thresholds, at levels at which, under the 

Tailoring Rule, GHGs are not a pollutant 

‘‘subject to regulation’’ under the CAA, 

so that the emitting source is not a major 

stationary source subject to PSD on 

account of its GHG emissions. Thus, 

EPA is now narrowing its approval of 

some approved SIPs so that the PSD 

programs under those SIPs are approved 

to apply to GHG-emitting sources only 

if those sources emit GHGs at or above 

Tailoring Rule thresholds. EPA is 

accomplishing this narrowing by 

withdrawing its previous approval of 

those PSD programs to the extent they 

apply to GHG-emitting sources that emit 

below the Tailoring Rule thresholds. 

Those provisions of SIPs from which 

EPA is withdrawing its approval will be 

treated as submitted by the state for 

approval and not yet acted upon by 

EPA. If a state submits a SIP revision for 

EPA’s approval that incorporates the 

Tailoring Rule thresholds into the SIP, 

EPA will treat the approval of the 

submission as removing these nolonger-approved provisions. We note 

that once SIP revisions incorporating 

the Tailoring Rule thresholds are 

approved after the issuance of this rule, 

they will supersede the changes made in 

this rule. That is, this rule amends the 

regulatory language in the Code of 

Federal Regulations (CFR) approving 

each of the relevant SIPs. When EPA 

approves a SIP revision, EPA will 

remove from the CFR the regulatory 

language added by this rule. 

Alternatively, EPA suggests that the 

affected states may withdraw those 

provisions from EPA’s consideration 

through a letter to the EPA Regional 

Administrator. EPA offers the following 

as model language that the state should 

feel free to use, but is not required to 

use: 

In its final rule entitled ‘‘Limitation of 

Approval of Prevention of Significant 

Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in State 

Implementation Plans’’ and published on 

[DATE OF PUBLICATION IN THE FEDERAL 

REGISTER], EPA amended the Code of 

Federal Regulations at [LOCATION OF CFR 

AMENDMENT RELEVANT TO STATE/ 

DISTRICT] and withdrew EPA’s approval of 

that portion of [STATE]’s SIP that would 

require sources to seek PSD permitting for 

emissions of GHGs in amounts below the 

thresholds specified in the Tailoring Rule, 74 

FR 55292 (October 27, 2009). [STATE] now 

acts to withdraw from EPA’s consideration 

that portion of [STATE]’s SIP from which 

EPA withdrew its approval in that action. 

These provisions are no longer intended for 

inclusion in the SIP, and are no longer before 

EPA for its approval or disapproval. 

If a state does not withdraw the SIP 

provisions for which EPA is rescinding 

approval, and does not submit a SIP 

revision incorporating the Tailoring 

Rule thresholds that would supercede 

this rule, EPA intends to propose to 

disapprove the relevant provisions in 

the near future. Any disapproval of such 

SIP provisions—again, those applying 

PSD to GHG-emitting sources that emit 

GHGs below the Tailoring Rule 

threshold—will not, if finalized, result 

in the need to resubmit another SIP 

revision, in sanctions, or in a FIP. This 

is because the relevant provisions are 

not necessary to meet any applicable 

CAA requirement. See CAA sections 

110(k)(3) (requirements for SIP 

disapproval), 179(a)(2) (sanctions). 

In the proposed Tailoring Rule, EPA 

proposed to narrow its approval for all 

50 states, as well as the District of 

Columbia, Guam, Puerto Rico, the U.S. 

Virgin Islands, and American Samoa. 

EPA now finalizes this narrowing of 

approval for only the SIPs with PSD 

programs that will apply to GHG 

emissions as of January 2, 2011, and for 

which the states have not either said 

that they interpret their SIPs to 

incorporate the Tailoring Rule 

thresholds for GHG emissions without 

the need for further action, or completed 

taking any further action necessary to 

incorporate the Tailoring Rule 

thresholds. This rule does not include 

final action on the proposal to narrow 

EPA’s approval of SIPs for states that do 

not have approved PSD SIP programs 

(the first category previously described), 

and states that have approved PSD SIP 

programs that do not apply to GHGs (the 

second category previously described). 

This rule also does not take final action 

on the proposal to narrow EPA’s 

approval of SIPs for states that have PSD 

SIP programs that cover GHG emissions, 

and that have already incorporated the 

Tailoring Rule thresholds via 

interpretation, SIP revision, or any other 

mechanism. The language being used 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82541 

11 ‘‘Prevention of Significant Deterioration (PSD) 

and Nonattainment New Source Review (NNSR): 

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

Applicability Limitations, Clean Units, Pollution 

Control Projects,’’ Final Rule, 67 FR 10816 

(December 2, 2002). 

12 In its first phase, starting January 2, 2011, PSD 

requirements for GHGs apply to sources that are 

required to seek a PSD permit for non-GHG 

pollutants, and that also increase emissions of GHG 

by at least 75,000 tpy CO2e. In its second phase, 

starting July 1, 2011, PSD requirements for GHGs 

will also apply to new sources that emit or with 

potential to emit at least 100,000 tpy CO2e, and 

existing sources that emit or have the potential to 

emit 100,000 tpy CO2e and that undertake a 

modification that increases net emissions of GHGs 

by at least 75,000 tpy CO2e. 

for this final narrowing rule reflects 

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. 

The states for whom EPA is narrowing 

its approval of the SIP PSD program in 

this action include: Alabama, California, 

Colorado, Georgia, Indiana, Iowa, 

Louisiana, Maine, Maryland, 

Mississippi, Missouri, New Hampshire, 

New Mexico, North Carolina, Ohio, 

Oklahoma, Rhode Island, South 

Carolina, South Dakota, Tennessee, 

Utah, Vermont, Virginia, and 

Wisconsin. 

B. Legal Basis 

EPA is narrowing its previous 

approval for each of the affected SIPs 

because EPA erred when it approved 

each SIP’s PSD program. In those 

approvals, EPA failed to account for an 

important flaw in the SIP. As a result, 

EPA is rescinding its previous approval 

for the part of the SIP that is flawed, and 

EPA is leaving in place its previous 

approval for the rest of the SIP. The flaw 

is that the applicability provisions of the 

PSD program (which determined the 

pollutants to which PSD permitting 

applies) were phrased so broadly that 

they could, under certain 

circumstances, sweep in more sources 

than the program could accommodate in 

light of the resources that, under the 

SIP—in accordance with what we refer 

to as the ‘‘state assurances’’ provision 

under CAA § 110(a)(2)(E)(i)—were 

available or for which a plan was in 

place to acquire. The part of PSD 

applicability that is broader than what 

the state assurances covered is the part 

that exceeds EPA requirements for PSD 

applicability. The following section 

discusses this basis in more detail, 

beginning with the PSD applicability 

provisions; then the state assurances 

provisions; and then how the two 

provisions, read together, gave rise to 

the flaws in the SIPs. 

1. PSD Applicability 

Each of the states subject to this rule 

has an approved PSD SIP program that 

applies to sources of pollutants subject 

to regulation under the CAA. Some 

states’ programs meet EPA’s PSD 

requirements as they read prior to 

promulgation of the 2002 NSR 

rulemaking, which we refer to as the 

NSR Reform rule.11 These pre-Reform 

SIPs, include a PSD applicability 

provision that provides that PSD applies 

to ‘‘any air pollutant subject to 

regulation.’’ 40 CFR 51.166(b)(1)(i) 

(2001). Other states subject to this rule 

have an approved PSD program that 

includes the NSR Reform rule. The 

Reform requirements, replaced the term 

‘‘any air pollutant subject to regulation’’ 

with the term ‘‘regulated NSR 

pollutant,’’ 40 CFR 51.166(b)(1)(i), and 

defined that latter term to include 

pollutants regulated under specified 

provisions of the CAA as well as ‘‘any 

pollutant that is otherwise subject to 

regulation under [the CAA].’’ 40 CFR 

51.166(b)(49)(iv). This quoted provision 

is similar to the pre-Reform provision, 

as both include the phrase ‘‘subject to 

regulation’’ in reference to the types of 

air pollutants that will be subject to the 

PSD program. Thus, each of the states 

subject to this rule has an approved PSD 

program—whether pre-Reform or 

Reform—that applies to any air 

pollutant that is ‘‘subject to regulation’’ 

under the CAA. 

These applicability provisions mean 

that under federal law, in each of these 

SIPs, PSD will expand to cover 

additional sources that emit a pollutant 

different than the ones already covered 

under the PSD program as soon as EPA 

promulgates a rule regulating that 

pollutant under any other provision of 

the CAA. Depending on the pollutant 

and the number and size of sources that 

emit it, these applicability provisions 

could result in a significant and rapid 

expansion of the PSD program. This is 

precisely what is happening at present, 

now that EPA has promulgated the 

LDVR, to take effect on January 2, 2011, 

at which time GHGs will become subject 

to regulation under CAA section 202(a). 

Importantly, the states affected by this 

action, while including in their SIPs a 

PSD applicability provision that applies 

PSD to any pollutant ‘‘subject to 

regulation,’’ generally do not interpret 

their applicability provision, or any 

other provision in their SIPs, to 

incorporate limits on PSD applicability 

with respect to a new pollutant and the 

SIPs do not contain any other 

mechanism that would allow the State 

to interpret applicability more narrowly. 

As a result, the affected states’ 

applicability provisions include no way 

to limit the speed or extent of the 

expansion a PSD program might be 

required to undergo to regulate new 

pollutants. 

The case of GHGs has highlighted the 

potential scale of a PSD program for a 

new pollutant under such open-ended 

provisions. As described in the final 

Tailoring Rule, EPA promulgated the 

LDVR, which is the rule that, upon 

January 2, 2011, when it takes effect, 

subjects GHGs to regulation. The LDVR 

identifies 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). Accordingly, the SIPs affected 

by this action will, as of January 2, 2011, 

treat GHGs as a pollutant ‘‘subject to 

regulation’’ and therefore apply PSD to 

GHG-emitting sources. As previously 

discussed, these SIPs will apply PSD to 

new GHG-emitting sources at the 100/ 

250 tpy levels and to modified GHGemitting sources at the any-massincrease levels. None of these SIPs, as 

currently approved, permits the 

interpretation of the PSD applicability 

more narrowly, to apply to only GHGemitting sources at or above the 

Tailoring Rule thresholds. In contrast, as 

previously noted, several other states 

are able to interpret their SIPs more 

narrowly and, as a result, are not subject 

to this action. 

The scale of the administrative 

program needed to effectively permit all 

sources emitting GHGs at the 100/250 

tpy levels has highlighted the 

unconstrained nature of the SIPs’ 

applicability provisions. EPA has 

recognized that a PSD program 

regulating GHGs at the 100/250 tpy 

levels is administratively unmanageable 

and creates absurd results that were not 

intended by Congress when it passed 

the CAA. Thus, in the Tailoring Rule, 

EPA phased in GHG PSD applicability, 

so that at the outset PSD applies to 

GHG-emitting sources only if they also 

emit GHG in amounts above the 75,000/ 

100,000 tpy CO2e thresholds set out in 

that rule.12 EPA included this limit in 

its regulations, and through this limit 

greatly reduced the extent of PSD 

applicability. This limit was set at a 

level at which EPA determined states 

would have the resources to implement 

a PSD program for GHG emissions. By 

contrast, each of these SIPs applies GHG 

PSD applicability more broadly— 

indeed, much more broadly, to far more 


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82542 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

13The 60-day letters are available at http:// 

www.epa.gov/NSR/2010letters.html. 

sources and to much smaller sources— 

than EPA’s regulations do. 

We note that there is nothing 

inherently problematic about a SIP 

imposing PSD applicability, or applying 

other control requirements, as broadly 

as a state might choose. SIPs may 

lawfully do so and EPA may lawfully 

approve them in accordance with the 

provisions of section 110(a) of the CAA. 

Similarly, there is nothing inherently 

problematic with a SIP failing to include 

any measures to limit the scope of its 

control requirements. Even so, the SIP 

must provide for adequate resources, 

and must do so on the appropriate 

schedule, as discussed next. 

2. State Assurances of Adequate 

Resources 

Each of the states subject to this rule 

was also required to include in its SIP 

adequate state ‘‘assurances,’’ in 

accordance with CAA section 

110(a)(2)(E)(i). This provision requires 

the SIP to ‘‘provide * * * necessary 

assurances that the State * * * will 

have adequate personnel, funding, and 

authority under State * * * law to carry 

out such implementation plan* * *.’’ 

EPA has implemented this requirement 

in 40 CFR 51.280, which provides, 

Each plan must include a description of 

the resources available to the State and local 

agencies at the date of submission of the plan 

and any additional resources needed to carry 

out the plan during the 5-year period 

following its submission. The description 

must include projections of the extent to 

which resources will be acquired at 1-, 3-, 

and 5-year intervals. 

These CAA and regulatory requirements 

concerning assurances apply to the SIP 

as a whole, including the PSD program. 

Therefore, at the time that the state 

submitted the PSD provisions of the SIP 

for EPA approval, the SIP was required 

to include assurances that adequate 

resources would be available to 

implement the SIP in its entirety, 

including the PSD program. 

As previously noted, the affected SIPs 

included expansive PSD applicability 

provisions for newly regulated 

pollutants, without a means to limit that 

applicability. Under these 

circumstances, state assurances are 

needed to assure adequate resources in 

the event of an expansion of the PSD 

program to new pollutants, even when 

this would require a rapid and sizeable 

expansion of the resources dedicated to 

the state PSD program, whether due to 

the large number of sources emitting the 

new pollutant or any other reason. EPA 

has the authority to define, under CAA 

section 110(a)(2)(E)(i), what assurances 

are ‘‘necessary’’ so that the state will 

have ‘‘adequate’’ resources. To be sure, 

EPA does not read the assurances 

requirement to require that the state 

should somehow hold in reserve large 

amounts of resources to cover the 

possibility that the PSD program would 

undergo such a large and rapid 

expansion. However, EPA does read the 

requirement to require that the state 

have a plan for acquiring the requisite 

additional amount of resources in the 

case of an expansion in PSD 

applicability. Moreover, that plan 

should include an implementation 

schedule that would be consistent with 

the timing of expansion in PSD 

applicability. PSD expansion may occur 

quite rapidly because PSD requirements 

apply immediately once they are 

triggered by subjecting a pollutant to 

regulation. This is because of the CAA 

requirement that stationary sources may 

not construct or modify unless they first 

have acquired a permit. CAA section 

165(a). That is, as soon as a pollutant is 

subject to regulation—as will occur for 

GHGs on January 2, 2011—the 

pollutant-emitting sources to which PSD 

then applies cannot lawfully undertake 

construction or modification projects 

without first procuring a PSD permit. 

It is clear, however, that none of the 

SIPs affected by this action include such 

a plan among their assurances. In the 

proposed Tailoring Rule, EPA stated 

that at the time that the LDVR triggers 

PSD applicability, if it triggers such 

applicability at the 100/250 tpy level, 

then far greater numbers of sources will 

require permitting than currently do. As 

a result, EPA added, the administrative 

burdens associated with permitting 

small sources for affected state and local 

permitting authorities would 

overwhelm the authorities. For each 

state, EPA proposed to rescind approval 

of the part of the SIP that applies PSD 

to sources below the Tailoring Rule 

thresholds, unless the state 

demonstrated that it had adequate 

resources to permit at the lower levels. 

During the comment period on this 

proposal, no authority contested this 

understanding of the facts, none stated 

that they could administer PSD at the 

100/250 tpy levels, and none contested 

the proposal on grounds that they have 

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. 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 PSD for 

GHG-emitting sources.13 In those letters, 

none of the states claimed they could, 

or intended to, implement the Tailoring 

Rule at the statutory levels. From all 

this, it is clear that none of the states 

had included in their state assurances 

an adequate plan to acquire resources to 

administer the PSD program for their 

GHG-emitting sources at the 100/250 

tpy level. 

It must be emphasized that there is 

nothing inherently problematic with a 

SIP whose state assurances do not 

include the previously-described plan to 

acquire additional resources. Only SIPs 

that lack any constraints to limit PSD 

applicability for new pollutants to 

match their resources must include such 

a plan. 

3. Flaw in SIP 

Based on the previous analysis, it is 

clear that the SIPs subject to this action 

are flawed. They each are structured in 

a manner that may impose PSD 

applicability on new pollutants in an 

unconstrained manner, and yet they do 

not have a plan for acquiring resources 

to adequately administer any large new 

components of the PSD program, and to 

do so on the same schedule that sources 

may become subject to PSD. As 

previously explained, the SIPs’ 

unconstrained applicability is not by 

itself a flaw. The flaw is the 

combination of that unconstrained 

applicability and the failure of the SIP 

to plan for adequate resources for that 

applicability, and do so on the 

appropriate time-table. In short, the 

SIPs’ PSD applicability provisions and 

their state assurances are mismatched 

and therefore the SIP is flawed. As 

previously discussed, EPA’s recently 

promulgated GHG rules have 

highlighted this flaw. 

EPA notes that since the enactment of 

the PSD provisions, EPA has 

periodically subjected pollutants to 

control for the first time, thereby 

triggering PSD applicability. At the time 

the affected SIPs were submitted and 

approved, this structural flaw could 

have been recognized. That is, it could 

have been recognized that (i) the PSD 

applicability provisions were essentially 

unconstrained, but that the resources 

the state assured would be available 

were constrained; and (ii) at some point 

in time, a pollutant could become newly 

regulated that would expand PSD 

applicability to a point that would 

require resources beyond what the state 

assured would be available. It bears 

reiterating that EPA has discretion to 

interpret the CAA’s SIP requirements, 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82543 

including what state assurances are 

required. In EPA’s view, the breadth of 

the affected SIPs’ provisions concerning 

PSD applicability, combined with the 

limited state assurances, constitutes a 

flaw. 

C. Legal Mechanisms for EPA Action 

Because the SIPs were flawed, EPA 

approval of them was in error. Two 

mechanisms are available for addressing 

that error: The error correction 

mechanism provided under CAA 

section 110(k)(6), 42 U.S.C. section 

7410(k)(6), or EPA’s inherent general 

authority to reconsider its own actions 

under CAA section 301(a), 42 U.S.C. 

section 7601(a), read in conjunction 

with CAA section 110(k) and other 

statutory provisions, and case law 

holding that an agency has inherent 

authority to reconsider its prior actions. 

1. Error Correction Under CAA Section 

110(k)(6) 

CAA section 110(k)(6) provides as 

follows: 

Whenever the Administrator determines 

that the Administrator’s action approving, 

disapproving, or promulgating any plan or 

plan revision (or part thereof), area 

designation, redesignation, classification, or 

reclassification was in error, the 

Administrator may in the same manner as the 

approval, disapproval, or promulgation 

revise such action as appropriate without 

requiring any further submission from the 

State. Such determination and the basis 

thereof shall be provided to the State and 

public. 

The key provisions are that the 

Administrator has the authority to 

‘‘determine [ ]’’ when a SIP approval 

was ‘‘in error,’’ and when she does so, 

she may then revise the SIP approval ‘‘as 

appropriate,’’ in the same manner as the 

approval, and without requiring any 

further submission from the state. With 

this action, EPA is determining that its 

action approving the PSD SIP provisions 

was ‘‘in error’’ due to the mismatch, 

previously discussed, between the PSD 

applicability provisions and the state 

assurances. EPA is further determining 

that the appropriate action EPA can 

take—in light of EPA’s proposal as part 

of the proposed Tailoring Rule—to 

revise that prior action is to rescind 

approval of the PSD program to the 

extent it applies PSD to GHG-emitting 

sources below the Tailoring Rule 

threshold. Thus, EPA is narrowing its 

approval of the PSD programs as 

indicated. EPA may consider further 

action in the future. 

a. Type of Error 

These determinations are authorized 

under the CAA. First, approval of the 

SIPs in light of the mismatch constitutes 

an ‘‘error’’ within the meaning of CAA 

section 110(k)(6). As previously quoted, 

CAA section 110(k)(6) provides EPA 

with the authority to correct its own 

‘‘error,’’ but nowhere does this provision 

or any other provision in the CAA 

define what qualifies as ‘‘error.’’ Thus, 

the term should be given its plain 

language, everyday meaning. Webster’s 

II Dictionary defines an ‘‘error’’ as: ‘‘(1) 

an act, assertion, or belief that 

unintentionally deviates from what is 

correct, right or true, (2) the state of 

having false knowledge . . . (4) a 

mistake . . .’’ Webster’s II New Riverside 

University Dictionary 442 (Houghton 

Mifflin Co. 1988). Similarly, the Oxford 

American College Dictionary 467_(2d 

ed. 2007) defines ‘‘error’’ as ‘‘a mistake’’ 

or ‘‘the state or condition of being wrong 

in conduct or judgment.’’ These 

definitions are broad, and include all 

unintentional, incorrect or wrong 

actions or mistakes. 

The legislative history of CAA section 

110(k)(6) is silent regarding the 

definition of error, but the timing of the 

enactment of the provision suggests a 

broad interpretation. The provision was 

enacted shortly after the Third Circuit 

decision in Concerned Citizens of 

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

(1987). In Bridesburg, the court adopted 

a narrow interpretation of EPA’s 

authority to unilaterally correct errors. 

The court stated that such authority was 

limited to typographical and other 

similar errors, and stated that any other 

change to a SIP must be accomplished 

through a SIP revision. Id. at 786. In 

Bridesburg, EPA determined that it 

lacked authority to include odor 

regulations as part of a SIP unless the 

odor regulations had a significant 

relationship to achieving a NAAQS, and 

so directly acted to remove 13-year-old 

odor provisions from the Pennsylvania 

SIP. Id. at 779–80. EPA found the 

previous approval of the provisions to 

have been an inadvertent error, and so 

used its ‘‘inherent authority to correct an 

inadvertent mistake’’ to withdraw its 

prior approval of the odor regulations 

without seeking approval of the change 

from Pennsylvania. Id. at 779–80, 785. 

After noting that Congress had not 

contemplated the need for revision on 

the grounds cited by EPA, Id. at 780, the 

court found that EPA’s ‘‘inherent 

authority to correct an inadvertent 

mistake’’ was limited to corrections such 

as ‘‘typographical errors,’’ and that 

instead EPA was required to use the SIP 

revision process to remove the odor 

provision from the SIP. Id. at 785–86. 

When the court made its 

determination in Bridesburg in 1987, 

there was no provision explicitly 

addressing EPA’s error correction 

authority under the CAA. In 1990, 

Congress passed CAA section 110(k)(6), 

apparently for the purpose of 

overturning the Bridesburg opinion. 

This is apparent because CAA section 

110(k)(6) both (i) authorizes EPA to 

correct SIP approvals and other actions 

that were ‘‘in error,’’ which, as 

previously noted, broadly covers any 

mistake, and thereby contrasts with the 

holding in Bridesburg that EPA’s presection 110(k)(6) authority was limited 

to correction of typographical or similar 

mistakes; and (ii) provides that the error 

correction need not be accomplished via 

the SIP revision or SIP call process, 

which contrasts with the holding of 

Bridesburg requiring a SIP revision. 

Because Congress apparently intended 

CAA section 110(k)(6) to overturn 

Bridesburg, the definition of ‘‘error’’ in 

that provision should be sufficiently 

broad to encompass the error that EPA 

asserted it made in its approval action 

at issue in Bridesburg, which goes well 

beyond typographical or other similar 

mistakes. 

EPA has used CAA section 110(k)(6) 

in the past to correct errors of a nontechnical nature. For example, EPA has 

used CAA section 110(k)(6) as authority 

to make substantive corrections to 

remove a variety of provisions from 

federally approved SIPs that are not 

related to the attainment or maintenance 

of NAAQS or any other CAA 

requirement. See, e.g., ‘‘Approval and 

Promulgation of Implementation Plans; 

Kentucky: Approval of Revisions to the 

State Implementation Plan,’’ 75 FR 2440 

(Jan. 15, 2010) (correcting the SIP by 

removing a provision, approved in 1982, 

used to address hazardous or toxic air 

pollutants); ‘‘Approval and 

Promulgation of Implementation Plans; 

New York,’’ 73 FR 21,546 (April 22, 

2008) (issuing a direct final rule to 

correct a prior SIP correction from 1998 

that removed general duties from the 

SIP but neglected to remove a reference 

to ‘‘odor’’ in the definition of ‘‘air 

contaminant or air pollutant’’); 

‘‘Approval and Promulgation of 

Implementation Plans; New York,’’ 63 

FR 65557 (Nov. 27, 1998) (issuing direct 

final rule to correct SIP by removing a 

general duty ‘‘nuisance provision’’ that 

had been approved in 1984); ‘‘Correction 

of Implementation Plans; American 

Samoa, Arizona, California, Hawaii, and 

Nevada State Implementation Plans,’’ 63 

FR 34,641 (June 27, 1997) (correcting 

five SIPs by deleting a variety of 

administrative provisions concerning 

variances, hearing board procedures, 

and fees that had been approved during 

the 1970s). 


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EPA’s approval of the PSD SIP 

provisions, in light of the mismatch 

between those provisions and the state 

assurances, was ‘‘in error’’ within the 

meaning of CAA section 110(k)(6). 

Under the familiar Chevron two-step 

framework for interpreting 

administrative statutes, an agency must, 

under Chevron step 1, determine 

whether ‘‘Congress has directly spoken 

to the precise question at issue.’’ If so, 

‘‘the court, as well as the agency, must 

give effect to the unambiguously 

expressed intent of Congress.’’ However, 

under Chevron step 2, if ‘‘the statute is 

silent or ambiguous with respect to the 

specific issue, the question for the court 

is whether the agency’s answer is based 

on a permissible construction of the 

statute.’’ Chevron U.S.A. Inc. v. NRDC, 

467 U.S. 837, 842–43 (1984). 

As previously discussed, the PSD SIPs 

were flawed due to the mismatch 

between the PSD applicability 

provisions and the state assurances. 

EPA’s action approving the PSD SIPs in 

the face of that flaw was ‘‘in error’’ under 

CAA section 110(k)(6) in accordance 

with Chevron step 1. As previously 

discussed, ‘‘error’’ should be defined 

broadly to include any mistake, and 

approval of a flawed SIP is a mistake. 

Even if the term ‘‘error’’ is not 

considered unambiguously to 

encompass the mistake that EPA made 

in approving the PSD SIPs under 

Chevron step 1, and instead is 

considered ambiguous on this question, 

then under Chevron step 2 EPA has 

sufficient discretion to determine that 

its approval action meets the definition 

of ‘‘error.’’ That is, under CAA section 

110(k)(6), both the breadth of the term 

‘‘error’’ and the authorization for EPA to 

‘‘determine[ ]’’—which is a directive 

that is inherently discretionary—when 

it made an error, point towards EPA 

having sufficient discretion to identify 

the mismatch in the SIPs as a flaw and 

to identify its action in approving the 

PSD SIPs in the face of that mismatch 

as an error under that provision. 

b. Narrowing of Approval 

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. The term 

‘‘appropriate’’ is open-ended, and 

therefore confers broad discretion upon 

EPA to fashion a reasonable type of 

correction. More generally, CAA section 

110(k)(6) authorizes EPA to 

‘‘determine[ ]’’ that its action was in 

error, and does not direct or constrain 

that determination in any manner. That 

is, the provision does not identify any 

factors that EPA must, or may not, 

consider in making the determination. 

This further indicates that this provision 

confers broad discretion upon EPA. 

EPA’s action corrects the error by 

rescinding EPA’s approval of the PSD 

threshold provisions to the extent they 

apply PSD requirements to sources of 

GHG emissions below the final 

Tailoring Rule thresholds. Correcting 

the error in this fashion is appropriate 

because it narrows the approval to the 

PSD requirements to the extent they 

apply to GHG-emitting sources at or 

above the final Tailoring Rule 

thresholds. This approach (i) renders 

the PSD applicability provisions 

consistent with EPA regulations and (ii) 

solves the mismatch previously 

described by assuring that SIP PSD 

applicability to GHG sources is 

consistent with EPA’s interpretation of 

the scope of the state assurances of 

adequate resources for PSD 

administration. 

Correcting the error in this fashion— 

narrowing the approval of SIPs—is also 

consistent with the approach that the 

affected states are taking to administer 

PSD to GHG-emitting sources. The states 

have advised EPA that they are 

proceeding to develop SIP revisions to 

implement the Tailoring Rule and 

thereby narrow their SIP PSD programs 

to GHG-emitting sources at or above the 

Tailoring Rule thresholds. EPA’s record 

in the Tailoring Rule indicates that the 

states should have adequate resources to 

implement their PSD program for GHGemitting sources at the Tailoring Rule 

thresholds. In contrast, no state has 

informed EPA that it prefers to maintain 

its PSD applicability at the 100/250 tpy 

level and that it intends to acquire the 

additional resources to do so. 

At this time, EPA is not further 

addressing, and therefore is not 

rescinding its approval of, the affected 

SIPs’ PSD applicability provisions to the 

extent they remain unconstrained in the 

manner in which they incorporate 

newly regulated pollutants in respects 

other than PSD applicability to GHGemitting sources below the Tailoring 

Rule thresholds. As a procedural matter, 

EPA did not propose to do so in the 

Tailoring Rule proposal and EPA did 

not receive any comments indicating 

that it should do so. In addition, CAA 

section 110(k)(6) gives EPA the 

authority to make corrections ‘‘as 

appropriate.’’ This language provides 

EPA with discretion to choose how to 

make corrections. The current problem 

resulting from EPA’s erroneous 

approvals of the SIPs in question is 

limited to the regulation of GHG 

emissions, and the current rule 

addresses this problem. The scope of 

this action does not foreclose further 

action to address EPA’s error in the 

future. An agency may properly address 

an issue in step-by-step fashion. See, 

e.g., Grand Canyon Air Tour Coalition v. 

F.A.A., 154 F.3d 455 (DC Cir. 1998), City 

of Las Vegas v. Lujan, 891 F.2d 927 (DC 

Cir. 1989). 75 FR at 31544. 

In accordance with CAA section 

110(k)(6), EPA has conducted this 

narrowing of approval through noticeand-comment rulemaking, which is the 

same manner as EPA conducted the 

prior approval. 

2. Reconsideration Under CAA Section 

301 and Case Law 

In the alternative to the error 

correction under CAA section 110(k)(6) 

discussed above, EPA is using its 

authority to reconsider its prior 

approval actions in order to narrow its 

approval of the SIPs at issue. This 

authority lies in CAA section 301(a), 

read in conjunction with CAA section 

110(k) and other statutory provisions, 

and case law holding that an agency has 

inherent authority to reconsider its prior 

actions. 

EPA approved some of the SIP PSD 

provisions affected by this rule prior to 

1990, under the authority of CAA 

section 110 as it read prior to 

amendment by the 1990 CAA 

Amendments. Prior to the amendments, 

CAA section 110(a)(2) authorized EPA 

to ‘‘approve or disapprove [a SIP], or any 

portion thereof.’’ EPA approved the rest 

of the SIP PSD provisions affected by 

this rule after 1990, i.e., under the 

authority of CAA section 110(k)(3)–(4) 

as added by the 1990 CAA 

Amendments. These sections authorize 

EPA to approve a SIP submittal ‘‘as a 

whole,’’ ‘‘approve [the SIP submittal] in 

part and disapprove [it] in part,’’ or issue 

a ‘‘conditional approval’’ of a SIP 

submittal. CAA section 110(k)(3)–(4). 

In approving the SIPs under either 

CAA section 110(a)(2) as it read prior to 

1990 or CAA section 110(k), EPA 

retained inherent 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); Trujillo v. 

General Electric Co., 621 F.2d 1084, 

1086 (10th Cir. 1980) (‘‘Administrative 

agencies have an inherent authority to 


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reconsider their own decisions, since 

the power to decide in the first instance 

carries with it the power to reconsider’’). 

Section 301(a) of the CAA, read in 

conjunction with CAA section 110 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—in light of EPA’s 

inherent authority as recognized under 

the case law to do so—and as a result, 

CAA section 301(a) confers 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). These 

authorizations for other persons to 

petition EPA to amend or repeal a rule 

suggest that EPA has inherent authority, 

on its own, to issue such amendment or 

repeal. This is because EPA may grant 

a petition from another person for an 

amendment to or repeal of a rule only 

if justified under the CAA, and if such 

an amendment or repeal is justified 

under the CAA, then EPA should be 

considered as having inherent authority 

to initiate the process on its own, 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 

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. In this 

rule, EPA is using its authority to 

reconsider and narrow its prior approval 

of SIPs generally in the same manner as 

it did in connection with California 

conformity SIPs. 

V. Comments and Responses 

In this section, we provide responses 

to comments we received on the 

proposed Tailoring Rule on narrowing 

EPA’s approval of some SIPs. Several 

industry commenters (4095, 4106, 4118, 

4691, 4870, 5083, 5058, 5131, 5133, 

5137, 5140, 5179, 5181, 5278, 5317, 

5713, 6414, 16411) and state 

commenters (2729, 4019, 4866, 4989, 

5039, 5084) object to our proposal to 

narrow our approval of previously fully 

approved SIPs. One industry commenter 

(4298) supports our proposal, though 

would like EPA to take additional 

actions as well. An environmental 

commenter (5306) also believes that 

EPA should accompany its proposed 

actions with a SIP call. 

A. Comments Regarding the Legal 

Mechanism for the Current Action 

Commenters argued that neither CAA 

section 110(k)(6) error correction 

authority nor EPA’s general authority 

under CAA 301(a) and APA 553(e) 

support the action EPA now takes. The 

arguments opposing both legal 

mechanisms for this rule include the 

following: 

• The EPA’s CAA section 110(k)(6) 

justification is flawed because section 

110(k)(6) authority is limited to the 

correction of technical or clerical errors 

made in a SIP approval and does not 

allow any unilateral revision by EPA of 

substantive provisions or any changes to 

the nature or terms of a SIP that EPA has 

approved in the past. (2797, 4019, 4866, 

4870, 4989, 5039, 5083, 5133, 5131, 

5140, 5179, 5181, 5279, 5317, 6414) 

• The type of action EPA wishes to 

undertake can only be taken through a 

SIP call under section 110(k)(5) of the 

CAA, although that section is not 

applicable in this situation because SIPs 

that incorporate the CAA applicability 

thresholds are not inadequate to 

‘‘comply with any requirement of the 

Act.’’ (4106, 4691, 4870, 5058, 5140, 

5181, 5278, 5317, 6414) 

• The EPA’s retroactive limitation on 

its prior approval of the SIPs is not 

being done to correct a mistake—even 

EPA does not claim its approvals were 

in error at the time it promulgated them. 

Rather, the Agency is trying to change 

the SIPs now to avoid substantive and 

timing problems it has created by its 

own deliberate actions. (4870, 5058, 

5131, 5140, 5181, 5278, 5317, 6414) 

• The EPA is not proposing to correct 

any ‘‘error’’ ‘‘in the same manner’’ as it 

made its approval. The proposed 

Tailoring Rule in effect proposes a 

blanket narrowing on all past approvals; 

EPA is not issuing an individualized 

new proposed approval (or disapproval) 

action for each SIP that had been the 

subject of an individual EPA notice-andcomment SIP approval proceeding. A 

SIP call is the proper procedure to 

address any alleged inadequacies in 

state resources. (2797, 4989, 5181, 5317) 

• In Concerned Citizens of Bridesburg 

v. EPA, 836 F.2d 777 (3d Cir. 1987), the 

court invalidated EPA’s attempt to 

rescind approval of a SIP revision that 

EPA had approved 13 years earlier on 

grounds that EPA’s original approval 

was in error. The Court explained that 

in fact the SIP approval was no longer 

consistent with EPA policy due to an 

intervening change in that policy, and 

that the SIP approval was not an 

inadvertent mistake that would justify a 

unilateral change in disregard of 

procedural requirements for SIP 

revisions. Some commenters state that 

in order to be a mistake under 

Bridesburg, the original SIP approval 

must have been contrary to agency 

policy at the time of the SIP approval. 

One commenter also cited Detroit 

Edison Co. v. EPA, 496 F.2d 244, 248– 

49 (6th Cir. 1974) in support of its 

argument that a substantive change to a 

SIP is a change in policy rather than a 

correction of an inadvertent mistake, 

and EPA cannot implement such a 

policy change in a SIP unilaterally (a 

proposed clarification by EPA of a SIP 

several months after promulgation was 

not in fact a clarification but a revision 

because it effected substantive change). 

(4870, 5080, 5140, 5181, 5278, 5317) 

• The EPA’s invocation of section 

110(k)(6) establishes a troubling 

precedent that undermines the role of 

states under the CAA. The EPA’s 

approach is unguided by any standards, 

criteria, or precedent. States and 

regulated sources would no longer have 

confidence that they could rely on 

approved SIPs, safe from EPA’s revision 

of those SIPs whenever the Agency 

decides—on any grounds it chooses or 

no grounds at all—that its prior 

approval had been an ‘‘error.’’ Under this 

interpretation of section 110(k)(6), EPA 

could dispense entirely with SIP calls 

under section 110(k)(5) and the states’ 

role in SIP revisions, which was clearly 

not what Congress had in mind when it 

enacted section 110(k). The EPA’s 

approach seriously undermines the 

carefully crafted federal-state 


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partnership the CAA creates, which 

assigns states the primary role in 

designing SIPs, while giving EPA a more 

limited, reviewing role. (4870, 5039, 

5140, 5181, 5278, 5317) 

• The EPA has overstated its 

authority under CAA section 301(a). 

The District of Columbia Circuit (DC 

Circuit) has observed that CAA 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. If 

there was a mistake in prior SIP 

approvals as EPA contends, section 

110(k)(5) is EPA’s sole and exclusive 

mechanism for seeking to correct a SIP 

that has been determined to be 

inadequate. (4019, 4866, 4870, 5058, 

5083, 5131, 5140, 5181, 5278, 5317, 

5714) 

• 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. In addition, CAA section 

307(d)(1)(B) and the penultimate 

sentence of section 307(d)(1) expressly 

state that the provisions of section 553 

do not apply to ‘‘the promulgation or 

revision of an implementation plan by 

the Administrator’’ under CAA section 

110(c), which, in practical effect, is the 

action EPA proposes here. 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, 

5714) 

As previously discussed, EPA’s error 

correction authority under CAA section 

110(k)(6) and, in the alternative, CAA 

section 301, read in light of EPA’s 

general authority to reconsider its 

actions, support the action EPA now 

takes to narrow its prior approval of 

some states’ SIPs. The SIP call process 

is a distinct and separate authority that 

Congress has given to EPA for use when 

EPA determines that a current SIP is 

substantially inadequate to attain or 

maintain compliance with the CAA 

requirements. This process is a means 

for EPA to require state action. See, e.g., 

Sierra Club v. Georgia Power Company, 

443 F.3d 1346, 1348 (11th Cir. 2006) 

(describing the SIP call process 

generally as a means to state action). 

Congress explicitly laid out EPA’s error 

correction authority under CAA section 

110(k)(6), as a means for EPA to 

unilaterally reconsider its own prior 

actions without using a SIP call. EPA’s 

general reconsideration authority also 

applies to EPA’s reconsideration of its 

own actions. 

Sections 110(k)(5) and (6) of the CAA 

are intended to address different types 

of problems with SIPs. Section 110(k)(6) 

targets ‘‘error[s]’’ that EPA made at the 

time it approved the SIP. Thus, EPA 

may rely on CAA section 110(k)(6) 

when EPA’s own action—e.g., its 

original approval of a state’s SIP—is 

erroneous. In contrast, section 110(k)(5) 

targets ‘‘substantial [ ] inadequa[cies]’’ 

that prevent the SIP’s compliance with 

CAA requirements and that exist in the 

SIP at the time of the SIP call regardless 

of when the substantial inadequacy first 

arose. Thus, a SIP whose approval was 

appropriate at the time but later may be 

shown to contain substantial 

inadequacies could be amended by the 

state using a SIP call under CAA section 

100(k)(5), but could not be corrected by 

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

Even so, many circumstances may 

arise where either a CAA section 

110(k)(6) correction or a section 

110(k)(5) SIP call could be appropriate. 

These are situations in which EPA erred 

in approving a SIP because the SIP was 

flawed, and that flaw constitutes a 

substantial inadequacy that prevents the 

SIP’s compliance with a CAA 

requirement. Under these 

circumstances, EPA may choose 

between CAA section 110(k)(6) or 

section 110(k)(5), and nothing in either 

of those provisions precludes EPA from 

choosing to use the other one in the case 

of an overlap. Section 110(k)(6) of the 

CAA provides that ‘‘[w]henever the 

Administrator determines that [a 

specified action] was in error, the 

Administrator may * * * revise such 

action* * *.’’ This provision grants 

discretion to the Administrator to make 

the indicated determination (including 

the timing of the determination) and 

then grants the Administrator the 

discretion (‘‘may’’) to revise the action. 

No other provision in CAA section 

110(k)(6), and none in section 110(k)(5), 

precludes that discretion in a situation 

in which the Administrator could have 

instead relied on section 110(k)(5). By 

the same token, CAA section 110(k)(5) 

provides that ‘‘[w]henever the 

Administrator finds that the applicable 

implementation plan for any area is 

substantially inadequate * * * to * * * 

comply with any requirement of [the 

CAA], the Administrator shall require [a 

SIP revision].’’ This provision also 

grants discretion to the Administrator to 

make the indicated finding (including 

the timing of the finding) that would 

trigger the requirement for a SIP 

revision. No other provision in CAA 

section 110(k)(5) mandates that the 

Administrator make the finding (and 

thereby trigger the requirement for a SIP 

revision) even if the Administrator 

could otherwise rely on section 

110(k)(6). See also New York Public 

Interest Research Group v. Whitman, 

321 F.3d 316, 330–31 (2d Cir. 2003) 

(finding that opening phrase ‘‘Whenever 

the Administrator makes a 

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

grants EPA ‘‘discretion whether to make 

a determination’’); Her Majesty the 

Queen in Right of Ontario v. U.S. E.P.A., 

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

(finding ‘‘whenever’’ in CAA section 

115(a) ‘‘impl[ied] a degree of discretion’’ 

in whether EPA had to make an 

endangerment finding). Indeed, if, as 

commenters suggest, section 110(k)(5) 

were viewed as predominating over 

section 110(k)(6), then there would be 

very few circumstances under which 

section 110(k)(6) would be available 

because in many instances, the type of 

error that the Administrator would see 

fit to correct under section 110(k)(6) 

would be one that would cause a SIP to 

be ‘‘substantially inadequate’’ to meet 

CAA requirements. Such a narrow role 

for section 110(k)(6) is inconsistent with 

its plain language, which, again, 

authorizes its usage ‘‘whenever’’ the 

Administrator ‘‘determines’’ that EPA’s 

action was in ‘‘error.’’ As previously 

noted, the term ‘‘error’’ should be 

defined broadly to include any 

unintentional mistake, and the other 

quoted terms inherently provide 

discretion. 

In addition to Congress’s explicit 

grant of error correction authority, the 

DC Circuit recently affirmed EPA’s 

inherent authority to reconsider its own 

actions in New Jersey v. EPA, 517 F.3d 

574 (DC Cir. 2008), where it explained 

that an agency normally can change its 

position and reverse a prior decision. 

However, the Court added that ‘‘when 

Congress has provided a mechanism 

capable of rectifying mistaken actions 

* * * it is not reasonable to infer 

authority to reconsider agency action.’’ 

New Jersey, 517 F.3d at 583. In that case, 

the Court did find that Congress had, in 

fact, limited EPA’s ability to remove 

sources from the list of HAP source 

categories, once listed, by requiring EPA 

to follow the specific delisting process 

at CAA section 112(c)(9). 

In the present case, EPA believes that 

it has the general authority under the 

CAA to reconsider its previous actions. 

Congress has also added the specific 

provision CAA section 110(k)(6), which 

authorizes correction of errors. EPA 


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believes that this error correction 

provision authorizes this action. If 

section 110(k)(6) has the breadth that 

EPA believes it has, then it may take the 

place of EPA’s inherent authority to 

reconsider prior erroneous actions. If 

section 110(k)(6) has a more limited 

breadth and does not apply to this 

action, then EPA continues to have 

inherent authority to make corrections 

beyond what section 110(k)(6) 

authorizes, including this action. 

As previously discussed, EPA finds 

support for its general authority to 

reconsider under CAA section 301(a). 

However, we are not relying on CAA 

section 301(a) as carte blanche authority 

to promulgate any rules; rather, we are 

relying on CAA section 301(a) because 

this action carries out EPA’s functions, 

to reconsider its action under CAA 

section 110 in approving SIP revisions, 

as authorized under the case law 

previously cited. Likewise, EPA finds 

some support for its authority in APA 

section 553(e). However, EPA is not 

relying on APA section 553(e) as direct 

authority for this action, under which 

EPA is correcting an error. Rather, EPA 

considers APA section 553(e) to support 

the proposition –– also supported by 

case law—that EPA has inherent 

authority to correct an error. Similarly 

to the APA, CAA section 307(b)(1), 

which contemplates petitions for 

reconsideration by EPA of actions taken 

on SIP submissions, supports the 

proposition that EPA has inherent 

authority to reconsider prior decisions 

that were in error. 

Commenters’ concerns that EPA’s 

approach to this rule seriously 

undermines the CAA federal-state 

partnership and the primary role given 

the states in the SIP development 

process are unfounded. This rule simply 

corrects an error in accordance with 

CAA section 110(k)(6); the primary role 

of states and the nature of the federalstate partnership certainly remains 

intact. States remain the developers and 

drafters of the SIPs; EPA remains the 

arbiter of whether the submitted SIP 

provisions meet necessary requirements, 

and thus should be part of the SIP. This 

federal-state partnership cannot 

preclude EPA from correcting errors in 

its own SIP approvals, and the 

partnership is not threatened by such 

error corrections. In addition, in 

accordance with CAA section 110(k)(6), 

EPA exercises its authority under this 

provision through notice and comment 

rulemaking, in which states have the 

opportunity to comment in order to 

shape the outcome. Historically, EPA 

has exercised its authority under CAA 

section 110(k)(6) very sparingly and 

judiciously. In the current case, EPA has 

taken this action after close 

communication with the states. 

As previously discussed, the SIPs 

addressed here each contained a 

mismatch between their PSD 

applicability provisions and their state 

assurances of adequate resources. EPA 

erred in approving those SIPs. Since this 

error recently became apparent, EPA is 

now promptly taking steps to correct the 

error in a manner it deems appropriate. 

We find that use of our CAA section 

110(k)(6) authority is appropriate 

because we are able to rectify the 

problem with the SIP without the need 

for state action, and because this 

approach provides the most efficient 

means for making the correction. 

Importantly, however, EPA is not basing 

its error correction on a change in its 

approach to an old policy, but rather on 

a flaw in the SIP that existed at the time 

of EPA’s action on the SIP but which 

has only recently become apparent. 

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

available to correct any error in a SIP; 

EPA disagrees with the commenters 

who state that this provision may only 

be used for technical or clerical errors. 

As previously discussed, 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). 

Conversely, commenters’ concerns 

that this rule sets a troubling precedent 

because it is unguided by any standards, 

criteria or precedent are unfounded. 

This rule is based on a flaw in the 

relevant SIPs and EPA’s error in 

approving the SIPs with that flaw. EPA’s 

application of CAA section 110(k)(6) is, 

by the terms of that provision, limited 

to an error correction, and this action 

does not go beyond that limit. 

EPA conducted notice and comment 

on the approval-narrowing for each 

relevant SIP. This notice and comment 

process, followed by the issuance of the 

final rule, corrects the errors in these 

SIPs in the same manner that EPA 

previously approved the SIPs. EPA also 

made an individualized determination 

regarding each affected SIP that the SIP 

contains a mismatch between its PSD 

applicability and state assurances 

provisions. For each SIP, this mismatch 

has been made evident, as previously 

discussed, by (i) EPA’s finding in the 

Tailoring Rule that under their current 

SIPs, the states would be required to 

process an enormous number of PSD 

permits for small GHG-emitting sources, 

which would overwhelm state 

resources; and (ii) the fact that no state 

has objected to this finding and asserted 

that it does have adequate resources, or 

that it previously assured EPA it would 

have adequate resources, for this 

purpose. 

EPA’s narrowing of approval amounts 

to a revision to the federal SIP, but that 

is inherent in its ability to correct its SIP 

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

EPA is not changing the state law 

component of the SIP, which remains 

fully state enforceable. 

B. Comments on Potential Triggering of 

Anti-Backsliding Provisions 

Some commenters expressed concern 

that anti-backsliding provisions would 

prevent revision of SIPs to increase the 

significance threshold for GHG 

emissions. Commenters were concerned 

that the EPA’s approach to ask states to 

quickly revise their SIPs to comport 

with the increased significance 

thresholds is likely to be challenged by 

activist groups citing the CAA’s antibacksliding provisions, which limit 

relaxation in certain rules. Under EPA’s 

interpretation of PSD applicability, once 

the LDVR requires PSD to apply to 

GHGs, the existing thresholds contained 

in SIPs could be alleged by activist 

groups to become binding on GHGs 

under the anti-backsliding arguments 

that these groups are currently 

advancing in various court cases. Thus, 

even if a state wanted to revise its 

regulations similarly to the federal 

Tailoring Rule and thereby relax the 

threshold, the anti-backsliding 

provision might prevent it. (5140, 5181, 

5278). One commenter was also 

concerned more generally that antibacksliding rules prevent EPA from 

‘‘adjust[ing] greenhouse gas levels’’ 

under the Tailoring Rule. (5713). 

None of these comments raised 

objections to this action narrowing 

EPA’s prior approval of SIPs. Thus, it is 

not necessary to address these 

comments here. However, to the extent 

the concern expressed in these 

comments could have been raised by 

changes to SIPs resulting from EPA’s 

narrowing of its prior approval, we 

choose to address the comments here in 

the interest of greater responsiveness. 

While many commenters did not 

clarify which CAA provisions they 

considered ‘‘anti-backsliding 

provisions’’, they most likely meant to 

refer to CAA sections 110(l), 110(n)(1), 

or 193. However, the current rule does 

not violate any of these provisions. 


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Under CAA section 193, EPA may 

only modify any ‘‘control requirement’’ 

applicable to a nonattainment area that 

was required or in effect prior to 

November 15, 1990 if ‘‘the modification 

insures equivalent or greater emission 

reductions of such air pollutant.’’ These 

provisions of section 193 apply to 

controls for pollutants for which an area 

is designated nonattainment. No area of 

the country is designated nonattainment 

for GHGs. This rule prevents certain 

sources or modification projects that are 

not currently subject to PSD 

requirements from becoming subject to 

PSD due to their emissions of GHGs on 

January 2, 2010 when GHGs will 

become ‘‘subject to regulation’’ for 

purposes of the PSD program. GHGs are 

not currently subject to regulation under 

the PSD program. Furthermore, the PSD 

program does not require emission 

offsets for new or modified major 

sources, and EPA does not consider the 

PSD program to achieve ‘‘emissions 

reductions’’ for purposes of section 193. 

Rather, the program merely limits future 

emissions growth. Thus, section 193 

would not limit alteration of a PSD 

program because any revised program 

would meet the statutory test. Therefore, 

the current rule does not violate CAA 

section 193. 

CAA section 110(l) provides that EPA 

shall not approve a SIP revision ‘‘if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress (as defined in [CAA section 

171]), or any other applicable 

requirement of this chapter.’’ CAA 

section 171 defines ‘‘reasonable further 

progress’’ as ‘‘such annual incremental 

reductions in emissions of the relevant 

air pollutant as are required by this part 

or may reasonably be required by the 

Administrator for the purpose of 

ensuring attainment of the applicable 

national ambient air quality standard by 

the applicable date.’’ The current rule 

does not approve a SIP revision. The 

current rule also would not interfere 

with attainment of any NAAQS, or with 

any other requirement of the CAA. 

CAA section 110(n)(1) states that a 

provision that was in a SIP prior to 

November 15, 1990 may only be 

changed if it is ‘‘approved or 

promulgated by [EPA] pursuant to this 

chapter.’’ The current rule is being 

approved by EPA pursuant to this 

chapter. The procedure of approval is 

pursuant to the CAA, and the rule’s 

substance does not violate CAA section 

110(l) or any other CAA provision. 

CAA section 172(e), which was cited 

specifically by one commenter, applies 

to EPA action to ‘‘relax a [NAAQS] after 

November 15, 1990.’’ Since GHGs are 

not a NAAQS pollutant and this rule 

does not change any NAAQS standard, 

this provision is not applicable to the 

current rule. 

C. Comments on Persisting Practical 

Difficulties at the State Level 

EPA received comments that raised 

concern that EPA is ignoring the fact 

that it will take time for the states to 

amend their laws and regulations to 

accommodate the revised applicability 

thresholds. Commenters expressed 

concern that it will be of little help for 

EPA to quickly amend the relevant SIPs 

because states will still be bound to 

implement their underlying programs 

until corrections can be made. For 

sources, this means no relief from the 

statutory thresholds for a lengthy time 

after GHGs become regulated. (4019, 

4095, 4866, 5080, 5083, 5084, 5131, 

5133, 5140, 5179, 5278, 5317, 16411) 

After this action is published and 

becomes effective, federal law will not 

require affected states to issue PSD 

permits for GHGs emitted at levels 

below the Tailoring Rule thresholds. 

Thus, sources in these states emitting 

GHGs below the Tailoring Rule 

thresholds will not be federally required 

to obtain a PSD permit for those 

emissions. 

No action by EPA can amend state 

law requirements, or relieve emitters of 

responsibilities under state law. 

However, most states affected by this 

rule have already begun the process of 

amending their state regulations to 

incorporate the Tailoring Rule 

thresholds. As previously noted, almost 

all states are on track to have changed 

their state law to incorporate the 

Tailoring Rule thresholds by January 2, 

2011 or very shortly thereafter. EPA 

encourages states to continue to pursue 

this process. Once states change their 

state law to incorporate the Tailoring 

Rule thresholds, then both the state law 

and federal law permitting requirements 

will be resolved. States can then process 

their revised state laws into SIP 

revisions and submit them for approval. 

In the proposed GHG PSD SIP Call 

preamble, EPA included 

recommendations for some states to 

streamline their SIP development 

processes; those recommendations 

could be used here. In the same 

proposal, EPA encouraged states to 

submit their SIP revisions for parallel 

processing, and thereby speed EPA 

approval. EPA recognizes that it may 

take some months to receive EPA 

approval of the SIP revision, but during 

this time, the State and Federal law will 

already each have been changed. This 

rule thus helps ensure that sources 

emitting GHGs at below-Tailoring Rule 

levels will have relief from GHG 

permitting requirements as early as 

possible. 

D. Comments on Preferred Alternative 

Courses of Action 

EPA received comments advocating 

alternate courses of action to address 

SIPs with the 100/250 tpy thresholds for 

GHGs. These comments include the 

following: 

• If EPA wishes to pursue its current 

regulatory strategy, it could amend the 

minimum PSD SIP elements in 40 CFR 

51.166 and allow states to develop and 

submit SIP revisions in accordance with 

those new provisions. (5182, 5317) 

• The EPA should exercise all 

available legal authority to ensure that 

SIPs come into conformity with the 

Tailoring Rule. Instead of taking no 

action other than to limit approval of 

SIPs, EPA should mandate or strongly 

encourage states to revise their PSD 

rules to reflect the higher thresholds. 

This could be accomplished through an 

expedited SIP call or by conditioning 

section 105 grant funding on 

appropriate revisions to the PSD rules in 

SIP-approved states. (4691) 

• An industry commenter (4298) 

supports EPA’s efforts to narrow 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 

commenter also believes that EPA 

should not finalize any action that 

would trigger GHG permitting until each 

state program has been amended (4298). 

• An environmental group 

commenter (5306) believes that EPA and 

the states should collaborate on an 

expeditious, smooth transition in 

carrying out obligations to address 

GHGs under the PSD programs. The 

commenter believes it is reasonable for 

EPA to call for a SIP revision under 

section 110(k)(5) with an expeditious 

deadline for states to submit corrective 

plan revisions. Further, according to the 

commenter, EPA can ease state adoption 

of PSD permit program revisions and 

expedite EPA’s own review and 

approval of the states’ adjustments by 

adopting model guidelines to help 

inform state rulemaking. The 

commenter recommends that EPA 

should promptly start the process with 

the aim to complete it by the end of 

2010. 


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As previously noted, EPA is strongly 

encouraging states to amend their SIP 

requirements to conform to the PSD 

thresholds established in the final 

Tailoring Rule, and this rule is 

consistent with such action. In fact, 

many states have already begun the 

process of amending state regulations 

and submitting those changes to EPA for 

approval. EPA is working closely with 

many states to help complete this 

process as expeditiously as possible. 

This close interaction obviates the need 

for guidelines on how states might 

amend their laws. EPA’s narrowing of 

our prior approval of some SIPs is 

intended to assure that at least the 

federal law component of these SIPs 

will, in essence, reflect the Tailoring 

Rule thresholds, since not all states 

whose SIPs will cover GHGs on January 

2, 2011 will be able to amend their SIP 

thresholds by that date. 

EPA does not feel that a SIP call 

would provide any additional benefit 

over the current action. Since the 

affected states are already making efforts 

to change their state laws and amend 

their SIPs, and have already informed 

EPA about their plans to make these 

changes in a time-effective manner, a 

SIP call would not spur any action that 

is not already occurring. 

Neither this action nor the Tailoring 

Rule triggered GHG permitting for any 

state. The Light Duty Vehicle Rule, in 

conjunction with the operation of the 

Clean Air Act, has already triggered the 

applicability of PSD to GHG emitting 

sources. 

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, even if APA section 553 

were to apply, APA section 553(d) 

provides an exception for any action 

that grants or recognizes an exemption 

or relieves a restriction. Since the effect 

of this rule will be to relieve many small 

sources (and permitting authorities) 

from certain PSD obligations, EPA 

believes that an immediate effective 

date is consistent with the purposes 

under APA section 553(d). EPA believes 

there is good cause for an immediate 

effective date due to the regulatory 

confusion that would result if states 

were federally required to implement 

PSD GHG permitting at only the 

statutory thresholds starting on January 

2, 2010. In addition, since this is not a 

major rule under the Congressional 

Review Act, the 60-day delay in 

effective date required for major rules 

under the CRA does not apply. This rule 

is thus effective immediately. 

VII. Statutory and Executive Orders 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

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

action is a ‘‘significant regulatory action’’ 

because it raises novel legal or policy 

issues. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. Instead, 

this action 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 80,000 new and 

modified facilities per year, nationally, 

would be subject to PSD review based 

on applying a GHG emissions threshold 

of 100/250 tpy using a CO2e metric. This 

was compared with the 280 PSD permits 

currently issued per year. Thus, without 

the final Tailoring Rule, the 

administrative burden for permitting 

GHG emissions would increase 280- 

fold, an unmanageable increase. The 

current action takes further steps to 

implement the burden-reduction 

implemented by the final Tailoring 

Rule. 

In addition, OMB has previously 

approved the information collection 

requirements contained in the existing 

regulations for PSD (see, e.g., 40 CFR 

52.21) under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0003. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the APA 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 final action on small entities, 

small entity is defined as: (1) A small 

business that is a small industrial entity 

as defined in the U.S. SBA size 

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

small governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

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

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

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this final action 

will not have a significant economic 

impact on a substantial number of small 

entities. In determining whether a rule 

has a significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives which ‘‘minimize any 

significant economic impact of the 

* * * rule on small entities.’’ 5 U.S.C. 

603 and 604. Thus, an agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, or 

otherwise has a positive economic effect 

on all of the small entities subject to the 

rule. 

We have therefore concluded that this 

final rule will relieve the federal 

regulatory burden for most affected 

small entities associated with the major 

PSD permit programs for new or 

modified major sources that emit GHGs, 

including small businesses, in the 

affected states. This is because this rule 

narrows its approval of SIPs in affected 

states so as to raise the approved PSD 

applicability thresholds for sources that 

emit GHGs. As a result, the program 

changes provided in this rule are not 

expected to result in a significant 

economic impact on a substantial 

number of small entities. 

D. Unfunded Mandates Reform Act 

This rule does not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments, in the aggregate, 

or the private sector in any 1 year. No 

state will have an increased burden as 

a result of this rule; any burden related 

to amending state SIPs to incorporate 

different GHG emissions thresholds 

resulted from the final Tailoring Rule, 

not the current rule. Thus, this rule is 

not subject to the requirements of 

sections 202 or 205 of Unfunded 

Mandates Reform Act (UMRA). 


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This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule is expected to result in cost savings 

and an administrative burden reduction 

for all permitting authorities and 

permittees in the affected states, 

including small governments. 

E. Executive Order 13132—Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This final rule 

will ultimately simplify and reduce the 

burden on state and local agencies 

associated with implementing the PSD 

permit program, by ensuring that, in 

affected states, a source whose GHG 

emissions are below the final Tailoring 

Rule thresholds will not have to obtain 

a PSD permit under federal law. 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 comments on the 

proposed rule from state and local 

officials. EPA has also consulted with 

the National Association of Clean Air 

Agencies and representatives from some 

individual states in developing this rule. 

F. Executive Order 13175—Consultation 

and Coordination With Indian 

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 currently issuing major 

NSR permits; however, this may change 

in the future. 

EPA consulted with tribal officials 

early in the process of developing the 

final Tailoring Rule regulation, which 

the current rule helps to implement, to 

allow them to have meaningful and 

timely input into its development. Prior 

to publishing the proposed Tailoring 

Rule, EPA published an advance notice 

of proposed rulemaking (ANPR) that 

included GHG tailoring options for 

regulating GHGs under the CAA. (73 FR 

44354, July 30, 2008). As a result of the 

ANPR, EPA received several comments 

from tribal officials on differing GHG 

tailoring options presented in the ANPR 

which were considered in the proposed 

Tailoring Rule and final Tailoring Rule. 

Additionally, EPA also specifically 

solicited comment from tribal officials 

on the proposed Tailoring Rule (74 FR 

55292, October 27, 2009) in which the 

actions which EPA now takes were first 

proposed. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets Executive Order 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 Executive 

492 Order has the potential to influence 

the regulation. This action is not subject 

to Executive Order 13045 because it 

does not establish an environmental 

standard intended to mitigate health or 

safety risks. 

H. Executive Order 13211—Actions 

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 this action would 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. The 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 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 CAA. 

Specifically, without this rule, the 

affected states’ CAA PSD 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 

narrowing 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 


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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 PSD 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 SBREFA, 

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 

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

which Federal Courts of Appeal have 

jurisdiction to hear petitions for review 

of which final actions by EPA. This 

section provides, in part, that petitions 

for review must be filed in the Court of 

Appeals for the District of Columbia 

Circuit: (i) When the agency action 

consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

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

when such action is locally or regionally 

applicable, if ‘‘such action is based on a 

determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

This rule narrowing EPA’s previous 

approvals of SIPs in 24 states to correct 

a flaw in those SIPs is ‘‘nationally 

applicable’’ within the meaning of 

section 307(b)(1). The circumstances 

that have led to this rulemaking are 

national in scope and are substantially 

the same for each affected state. They 

include EPA’s promulgation of 

nationally applicable GHG requirements 

that, in conjunction with the operation 

of the CAA PSD provisions, have 

resulted in GHG-emitting sources 

becoming subject to PSD. Moreover, in 

this rule, EPA is applying uniform 

principles for each affected state in this 

rule. At the core of this rulemaking is 

EPA’s recognition that when it approved 

each of the affected SIPs’ PSD 

applicability provisions, it did so in the 

face of a mismatch—common to each 

SIP—between the breadth of those 

provisions and the scope of the resource 

assurances the states provided. EPA is 

now addressing this flaw in numerous 

SIPs across the country through the 

CAA section 110(k)(6) error correction 

provisions. EPA’s analytical approach 

for each SIP is the same, its 

determination that each SIP was flawed 

and therefore that EPA erred in its 

approval of each SIP is the same, and 

EPA’s remedial action of rescinding its 

previous approval of part of the SIP and 

thereby narrowing its approval of the 

SIP is the same. This rulemaking action 

is supported by a single administrative 

record, and does not involve factual 

questions unique to the different 

affected states. In addition, this rule 

applies to multiple States in numerous 

judicial circuits across the country. 

For similar reasons, this rule is based 

on determinations of nationwide scope 

or effect. EPA uses a uniform legal 

interpretation in all the affected States 

across the country; for the same reasons 

in each case, EPA is determining that 

each SIP was flawed and that EPA 

therefore erred in approving it. 

Similarly, EPA is determining that the 

appropriate remedial action is to rescind 

its approval in part and thereby narrow 

its approval, and this too is the same for 

each state. Because the states are spread 

across the nation, each of these 

determinations is nationwide in scope 

or effect. Moreover, EPA is making these 

determinations and promulgating this 

action within the context of nationwide 

rulemakings and interpretation of the 

applicable CAA provisions, as noted 

above. 

Thus, any 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. 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 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). 

VIII. Statutory Authority 

The statutory authority for this action 

is provided by sections 101, 110, and 

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

7401, 7410, and 7601). This action is 

also subject to section 307(d) of the CAA 

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

List of Subjects in 40 CFR Part 52 

Administrative practice and 

procedure, Air pollution control, Carbon 

dioxide, Carbon dioxide equivalents, 

Environmental protection, Greenhouse 

gases, Hydrofluorocarbons, 

Incorporation by reference, 

Intergovernmental relations, Methane, 

Nitrous oxide, Perfluorocarbons, 

Reporting and recordkeeping 

requirements, Sulfur hexafluoride. 

Dated: December 23, 2010. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons stated in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is amended as set forth 

below. 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart B—Alabama 

■ 2. Section 52.53 is revised to read as 

follows: 

§ 52.53 Approval Status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Alabama’s plans for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977. In addition, 

continued satisfaction of the 

requirements of Part D for the ozone 

portion of the SIP depends on the 

adoption and submittal of RACT 

requirements by July 1, 1980 for the 

sources covered by CTGs issued 

between January 1978 and January 1979 

and adoption and submittal by each 

subsequent January of additional RACT 

requirements for sources covered by 

CTGs issued by the previous January. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 


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82552 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in EPA-approved Alabama 

Department of Environmental 

Management (ADEM) Rules 335–3–14– 

.04(1)(d) thru (i) and 335–3–14– 

.04(2)(u)) and a significant net emissions 

increase (as defined in EPA-approved 

Alabama Department of Environmental 

Management (ADEM) Rules 335–3–14– 

.04(2)(c) and 335–3–14–.04(2)(w)) occur. 

For the pollutant GHGs, an emissions 

increase shall be based on tpy CO2e, and 

shall be calculated assuming the 

pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in Alabama Department of 

Environmental Management (ADEM) 

Rules 335–3–14–.04(2)(w). 

Subpart F—California 

■ 3. Section 52.223 is amended by 

adding paragraphs (f), (g), and (h) to 

read as follows: 

§ 52.223 Approval status. 

* * * * * 

(f)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in North Coast Unified 

Air Quality Management District’s 

approved plan apply to stationary 

sources of greenhouse gas (GHGs) 

emissions, the Administrator approves 

that application only to the extent that 

GHGs are ‘‘subject to regulation’’, as 

provided in this paragraph (b), and the 

Administrator takes no action on that 

application to the extent that GHGs are 

not ‘‘subject to regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in the EPA-approved North 

Coast Unified Air Quality Management 

District rules at R1–1–130(s2)) and a 

significant net emissions increase (as 

defined in the North Coast Unified Air 

Quality Management District rules at 

R1–1–130(n1)) occur. For the pollutant 

GHGs, an emissions increase shall be 

based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 

the EPA-approved North Coast Unified 

Air Quality Management District rules 

at R1–1–130(s2). 

(g)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in Northern Sonoma 

County Air Pollution Control District’s 

approved plan apply to stationary 

sources of greenhouse gas (GHGs) 

emissions, the Administrator approves 

that application only to the extent that 

GHGs are ‘‘subject to regulation’’, as 

provided in this paragraph (b), and the 

Administrator takes no action on that 

application to the extent that GHGs are 

not ‘‘subject to regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82553 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in the EPA-approved 

Northern Sonoma County Air Pollution 

Control District rules at R1–1–130(s2)) 

and a significant net emissions increase 

(as defined in the Northern Sonoma 

County Air Pollution Control District 

rules at R1–1–130(n1)) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 

the EPA-approved Northern Sonoma 

County Air Pollution Control District 

rules at R1–1–130(s2). 

(h)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in Mendocino County 

Air Quality Management District’s 

approved plan apply to stationary 

sources of greenhouse gas (GHGs) 

emissions, the Administrator approves 

that application only to the extent that 

GHGs are ‘‘subject to regulation’’, as 

provided in this paragraph (b), and the 

Administrator takes no action on that 

application to the extent that GHGs are 

not ‘‘subject to regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in the EPA-approved 

Mendocino County Air Quality 

Management District rules at R1–1– 

130(s2)) and a significant net emissions 

increase (as defined in the Mendocino 

County Air Quality Management District 

rules at R1–1–130(m1) (1982)) occur. 

For the pollutant GHGs, an emissions 

increase shall be based on tpy CO2e, and 

shall be calculated assuming the 

pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in the EPA-approved Mendocino 

County Air Quality Management District 

rules at R1–1–130(s2). 

Subpart G—Colorado 

■ 4. Section 52.323 is revised to read as 

follows: 

§ 52.323 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Colorado’s plan for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

that the plan satisfies all requirements 

of Part D, Title 1, of the Clean Air Act 

as amended in 1977, except as noted 

below. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) the term greenhouse gas shall mean 

the air pollutant defined in 40 CFR 

86.1818–12(a) as the aggregate group of 

six greenhouse gases: Carbon dioxide, 

nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) the term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 


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82554 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in paragraphs I.A.2. through 

I.A.3, and I.B of Part D of Colorado’s Air 

Quality Commission’s Regulation 

Number 3) and a significant net 

emissions increase (as defined in 

paragraphs II.A.26 and II.A.42.a of Part 

D of Colorado’s Air Quality 

Commission’s Regulation Number 3) 

occur. For the pollutant GHGs, an 

emissions increase shall be based on tpy 

CO2e, and shall be calculated assuming 

the pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in paragraph II.A.42.b of Part D of 

Colorado’s Air Quality Commission’s 

Regulation Number 3. 

Subpart L—Georgia 

■ 5. Section 52.572 is revised to read as 

follows: 

§ 52.572 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Georgia’s plans for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977, except as noted 

below. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 40 CFR 52.21(a)(2)(iv) 

(2006) and the EPA-approved Georgia 

Environmental Protection Division 

(EPD) Rules 391–3–1–.02(7)(a)2.(I) thru 

(IV) (2006)) and a significant net 

emissions increase (as defined in 40 

CFR 52.21(b)(3) and (b)(23)(i) (2006)) 

occur. 40 CFR 52.21 (2006) is presently 

incorporated by reference into Georgia’s 

approved plan at EPA-approved Georgia 

EPD Rule 391–3–1–.02(7). For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 40 

CFR 52.21(b)(23)(ii). 

Subpart P—Indiana 

■ 6. Section 52.773 is amended by 

adding paragraph (k) to read as follows: 

§ 52.773 Approval status. 

* * * * * 

(k)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (k), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (k)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(k)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (k)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82555 

procedures in [326 IAC–2–2–2(d) of 

Indiana’s Administrative Code) and a 

significant net emissions increase (as 

defined in 326 IAC–2–1, paragraphs (ii) 

and (ww) of Indiana’s Administrative 

Code) occur. For the pollutant GHGs, an 

emissions increase shall be based on tpy 

CO2e, and shall be calculated assuming 

the pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in paragraph 326 IAC 2–2– 

1(ww)(1)(V) of Indiana’s Administrative 

Code. 

Subpart Q—Iowa 

■ 7. Section 52.822 is amended by 

adding paragraph (b) to read as follows: 

§ 52.822 Approval status. 

* * * * * 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 40 CFR 52.21(a)(2)(iv)) 

and a significant net emissions increase 

(as defined in 40 CFR 52.21(b)(3) and 

(b)(23)(i)) occur. For the pollutant 

GHGs, an emissions increase shall be 

based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 40 

CFR 52.21(b)(23)(ii) of this section. 

Subpart T—Louisiana 

■ 8. Section 52.986 is amended by 

adding paragraph (c) to read as follows: 

§ 52.986 Significant deterioration of air 

quality. 

* * * * * 

(c)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in Louisiana’s 

approved plan apply to stationary 

sources of greenhouse gas (GHGs) 

emissions, the Administrator approves 

that application only to the extent that 

GHGs are ‘‘subject to regulation’’, as 

provided in this paragraph (c), and the 

Administrator takes no action on that 

application to the extent that GHGs are 

not ‘‘subject to regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (c)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(c)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (c)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in the EPA-approved 

Louisiana Administrative Code (LAC), 

Title 33, Part III, Chapter 5, Section 509, 

Subsection B) and a significant net 

emissions increase (as defined in LAC 

33:III.509.B) occur. For the pollutant 

GHGs, an emissions increase shall be 

based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 

the EPA-approved definition of 

‘‘significant’’ at LAC 33:III.509.B. 

Subpart U—Maine 

■ 9. Section 52.1022 is revised to read 

as follows: 

§ 52.1022 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Maine’s plan, as identified in § 52.1020, 

for the attainment and maintenance of 

the national standards under section 

110 of the Clean Air Act. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 


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82556 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 06–096 1. of Chapter 100 

of Maine’s Bureau of Air Quality 

Control regulations) and a significant 

net emissions increase (as defined in 

06–096, paragraphs 89 and 144 A of 

Chapter 100 of Maine’s Bureau of Air 

Quality Control regulations) occur. For 

the pollutant GHGs, an emissions 

increase shall be based on tpy CO2e, and 

shall be calculated assuming the 

pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in 06–096, paragraphs 143 and 

144 D of Chapter 100 of Maine’s Bureau 

of Air Quality Control regulations. 

Subpart V—Maryland 

■ 10. Section 52.1073 is amended by 

adding paragraph (h) to read as follows: 

§ 52.1073 Approval status. 

* * * * * 

(h)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (h), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (h)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(h)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (h)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that a net significant emissions 

increase (as defined in 40 CFR part 

52.21(b)(3)(i) (2000) and the EPAapproved Maryland rules at COMAR 

26.11.06.14 (state effective date 10/10/ 

2001)). For the pollutant GHGs, a net 

emissions increase shall be based on tpy 

CO2e, and shall be calculated assuming 

the pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in 40 CFR 52.21(b)(23)(ii) (2000). 

Subpart Z—Mississippi 

■ 11. Section 52.1272 is revised to read 

as follows: 

§ 52.1272 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Mississippi’s plan for the attainment 

and maintenance of national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation,’’ as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82557 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 40 CFR 52.21(a)(2)(iv) 

(2007)) and a significant net emissions 

increase (as defined in paragraphs 40 

CFR 52.21(b)(3) and (b)(23)(i) (2007)) 

occur. 40 CFR 52.21 (2007) is presently 

incorporated by reference into 

Mississippi’s plan at EPA-approved 

Mississippi Commission on 

Environmental Quality Rule APC–S–5. 

For the pollutant GHGs, an emissions 

increase shall be based on tpy CO2e, and 

shall be calculated assuming the 

pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in 40 CFR 52.21(b)(23)(ii)(2007). 

Subpart AA—Missouri 

■ 12. Section 52.1323 is amended by 

adding paragraph (n) to read as follows: 

§ 52.1323 Approval status. 

* * * * * 

(n)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation,’’ as provided in this 

paragraph (n), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (n)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(n)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (n)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 40 CFR 52.21(a)(2)(iv)) 

and a significant net emissions increase 

(as defined in 40 CFR 52.21(b)(3) and 

(b)(23)(i)) occur. For the pollutant 

GHGs, an emissions increase shall be 

based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 40 

CFR 52.21(b)(23)(ii). 

Subpart EE—New Hampshire 

■ 13. Section 52.1522 is amended by 

adding paragraph (c) to read as follows: 

§ 52.1522 Approval status. 

* * * * * 

(c)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (c), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (c)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(c)— 

(i) the term greenhouse gas shall mean 

the air pollutant defined in 40 CFR 

86.1818–12(a) as the aggregate group of 

six greenhouse gases: Carbon dioxide, 

nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 


emcdonald on DSK2BSOYB1PROD with RULES3
82558 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (c)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 40 CFR 52.21(a)(2)(iv)) 

and a significant net emissions increase 

(as defined in paragraphs 40 CFR 

52.21(b)(3) and (b)(23)(i)) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 40 

CFR 52.21(b)(23)(ii). 

Subpart GG—New Mexico 

■ 14. Section 52.1634 is amended by 

adding paragraphs (d) and (e) to read as 

follows: 

§ 52.1634 Significant deterioration of air 

quality. 

* * * * * 

(d)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in New Mexico’s 

approved plan apply to stationary 

sources of greenhouse gas (GHGs) 

emissions, the Administrator approves 

that application only to the extent that 

GHGs are ‘‘subject to regulation’’, as 

provided in this paragraph (b), and the 

Administrator takes no action on that 

application to the extent that GHGs are 

not ‘‘subject to regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) the term greenhouse gas shall mean 

the air pollutant defined in 40 CFR 

86.1818–12(a) as the aggregate group of 

six greenhouse gases: Carbon dioxide, 

nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in the EPA-approved New 

Mexico Environment Department 

(NMED) rules at New Mexico 

Administrative Code (NMAC) 

20.2.74.200, Subsection D) and a 

significant net emissions increase (as 

defined in the EPA-approved NMED 

rules at NMAC 20.2.74.7, paragraphs 

(AK), (AV), and (AW)) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 

the EPA-approved NMED rules at Table 

2 of NMAC 20.2.74.502. 

(e)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in Bernallilo County/ 

City of Albuquerque’s approved plan 

apply to stationary sources of 

greenhouse gas (GHGs) emissions, the 

Administrator approves that application 

only to the extent that GHGs are ‘‘subject 

to regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in the EPA-approved 

Bernallilo County/City of Albuquerque 

rules at NMAC 20.11.61.11, Subsection 

D) and a significant net emissions 

increase (as defined in the EPAapproved Bernanillo County/City of 

Albuquerque rules at NMAC 20.11.61.7, 

paragraphs (OO), (YY), and (ZZ)) occur. 

For the pollutant GHGs, an emissions 

increase shall be based on tpy CO2e, and 

shall be calculated assuming the 

pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in the EPA-approved Bernallilo 

County/City of Albuquerque rules at 

Table 2 of NMAC 20.11.61.27. 

Subpart II—North Carolina 

■ 15. Section 52.1772 is amended by 

adding paragraph (c) to read as follows: 

§ 52.1772 Approval status. 

* * * * * 

(c)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 


emcdonald on DSK2BSOYB1PROD with RULES3
Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82559 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (c), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (c)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(c)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (c)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that a significant net emissions 

increase (as defined in paragraphs 40 

CFR 51.166(b)(3) (1996) and 40 CFR 

51.166(b)(23)(i) (1996)) occurs. 40 CFR 

51.166 (1996) is presently incorporated 

by reference into North Carolina’s plan 

at EPA-approved North Carolina Rule 

15A NCAC 02D–.544. For the pollutant 

GHGs, an emissions increase shall be 

based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 40 

CFR 51.166(b)(23)(ii) (1996). 

Subpart KK—Ohio 

■ 16. Section 52.1873 is revised to read 

as follows: 

§ 52.1873 Approval status. 

(a) With the exceptions set forth in 

this subpart the Administrator approves 

Ohio’s plan for the attainment and 

maintenance of the National Ambient 

Air Quality Standards under section 110 

of the Clean Air Act. Furthermore, the 

Administrator finds the plan satisfies all 

the requirements of Part D, Title 1 of the 

Clean Air Act as amended in 1977, 

except as noted below. In addition, 

continued satisfaction of the 

requirements of Part D for the ozone 

portion of the SIP depends on the 

adoption and submittal of RACT 

requirements by January 1, 1981 for the 

sources covered by CTGs between 

January 1978 and January 1979 and 

adoption and submittal by each 

subsequent January of additional RACT 

requirements for sources covered by 

CTGs issued by the previous January. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) the term greenhouse gas shall mean 

the air pollutant defined in 40 CFR 

86.1818–12(a) as the aggregate group of 

six greenhouse gases: Carbon dioxide, 

nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 3745–31–01(III)(4) of 

Ohio’s Administrative Code) and a 

significant net emissions increase (as 

defined in paragraphs 3745–31–01, 

paragraphs (SSS) and (LLLLL)(1) of 

Ohio’s Administrative Code) occur. For 

the pollutant GHGs, an emissions 

increase shall be based on tpy CO2e, and 

shall be calculated assuming the 

pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in paragraph 3745–31– 

01(LLLLL)(2) of Ohio’s Administrative 

Code. 

Subpart LL—Oklahoma 

■ 17. Section 52.1929 is amended by 

adding paragraph (c) to read as follows: 

§ 52.1929 Significant deterioration of air 

quality. 

* * * * * 

(c)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in Oklahoma’s 

approved plan apply to stationary 

sources of greenhouse gas (GHGs) 

emissions, the Administrator approves 

that application only to the extent that 

GHGs are ‘‘subject to regulation’’, as 

provided in this paragraph (b), and the 


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82560 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

Administrator takes no action on that 

application to the extent that GHGs are 

not ‘‘subject to regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) the term greenhouse gas shall mean 

the air pollutant defined in 40 CFR 

86.1818–12(a) as the aggregate group of 

six greenhouse gases: Carbon dioxide, 

nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using EPAapproved procedures in Oklahoma Air 

Pollution Control Regulation 1.4.4(b)) 

and a significant net emissions increase 

(as defined in the EPA-approved 

Oklahoma Air Pollution Control 

Regulation 1.4.4(b)(3) and (22), 

definitions for ‘‘net emissions increase’’ 

and ‘‘significant) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 

1.4.4(b)(22) of the EPA-approved 

definition for ‘‘significant’’ of 

Oklahoma’s Air Pollution Control 

Regulations. 

Subpart OO—Rhode Island 

■ 18. Section 52.2072 is revised to read 

as follows: 

§ 52.2072 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Rhode Island’s plan, as identified in 

§ 52.2070 of this subpart, for the 

attainment and maintenance of the 

national standards under section 110 of 

the Clean Air Act. Furthermore, the 

Administrator finds the plan satisfies all 

requirements of Part D, Title I, of the 

Clean Air Act, as amended in 1977, 

except as noted below. In addition, 

continued satisfaction of the 

requirements of Part D for the ozone 

portion of the SIP depends on the 

adoption and submittal of RACT 

requirements by January 1, 1981 for the 

sources covered by CTGs issued 

between January 1978 and January 1979 

and adoption and submittal by each 

subsequent January as additional RACT 

requirements for sources covered by 

CTGs issued by the previous January. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) the term greenhouse gas shall mean 

the air pollutant defined in 40 CFR 

86.1818–12(a) as the aggregate group of 

six greenhouse gases: Carbon dioxide, 

nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 9.1.1 of Rhode Island’s 

Air Pollution Control Regulation No. 9) 

and a significant net emissions increase 

(as defined in 9.1.24 and 9.1.34 of 

Rhode Island’s Air Pollution Control 

Regulation No. 9) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value for 

‘‘any other pollutant’’ in 9.1.34 of Rhode 

Island’s Air Pollution Control 

Regulation No. 9. 

Subpart PP—South Carolina 

■ 19. Section 52.2122 is amended by 

adding paragraph (c) to read as follows: 

§ 52.2122 Approval status. 

* * * * * 

(c)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (c), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82561 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (c)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(c)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (c)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in South Carolina Air 

Pollution Control Regulations and 

Standards (South Carolina Regulations) 

61–62.5, Standard No. 7, paragraph 

(a)(2)(iv)) and a significant net 

emissions increase (as defined in South 

Carolina Air Pollution Control 

Regulations and Standards (South 

Carolina Regulations) 61–62.5, Standard 

No. 7, paragraphs (b)(34) and (b)(49)(i)) 

occur. For the pollutant GHGs, an 

emissions increase shall be based on tpy 

CO2e, and shall be calculated assuming 

the pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in South Carolina Air Pollution 

Control Regulations and Standards 

(South Carolina Regulations) 61–62.5, 

Standard No. 7, paragraph (b)(49)(ii). 

Subpart QQ—South Dakota 

■ 20. Section 52.2172 is revised to read 

as follows: 

§ 52.2172 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

South Dakota’s plan as meeting the 

requirements of section 110 of the Clean 

Air Act, as amended in 1977. 

Furthermore, the Administrator finds 

that the plan satisfies all requirements 

of Part D of the Clean Air Act, as 

amended in 1977. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 40 CFR 52.21(a)(2)(iv)) 

and a significant net emissions increase 

(as defined in paragraphs 40 CFR 

52.21(b)(3) and (b)(23)(i)) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 40 

CFR 52.21(b)(23)(ii). 

Subpart RR—Tennessee 

■ 21. Section 52.2222 is amended by 

adding paragraph (d) to read as follows: 

§ 52.2222 Approval status. 

* * * * * 

(d)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (d), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (d)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 


emcdonald on DSK2BSOYB1PROD with RULES3
82562 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(d)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (d)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in Tennessee Air Pollution 

Control Regulation 1200–03–09– 

.01(4)(c)(4) and a significant net 

emissions increase (as defined in 

Tennessee Air Pollution Control 

Regulation 1200–03–09–.01, paragraphs 

(4)(b)(4) and (4)(b)(24)(i)) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 

Tennessee Air Pollution Control 

Regulation 1200–03–09–.01, paragraph 

(4)(b)(24)(ii). 

Subpart TT—Utah 

■ 22. Section 52.2323 is revised to read 

as follows: 

§ 52.2323 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Utah’s plan as meeting the requirements 

of section 110 of the Clean Air Act as 

amended in 1977. Furthermore, the 

Administrator finds that the plan 

satisfies all requirements of Part D, Title 

1, of the Clean Air Act as amended in 

1977, except as noted below. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 40 CFR 52.21(a)(2)(iv)) 

and a significant net emissions increase 

(as defined in paragraphs 40 CFR 

52.21(b)(3) and (b)(23)(i)) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 40 

CFR 52.21(b)(23)(ii). 

Subpart UU—Vermont 

■ 23. Section 52.2372 is revised to read 

as follows: 

§ 52.2372 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Vermont’s plan as identified in 

§ 52.2370 for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act, as 

amended in 1977, except as noted 

below. In addition, continued 

satisfaction of the requirements of Part 

D for the ozone portion of the SIP 

depends on the adoption and submittal 

of RACT requirements by July 1, 1980 

for the sources covered by CTGs issued 

between January, 1978 and January, 

1979 and adoption and submittal by 

each subsequent January of additional 

RACT requirements for sources covered 

by CTGs issued by the previous January. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82563 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in the definitions for ‘‘actual 

emissions’’ and ‘‘allowable emissions’’ 

under section 5–101 of Chapter 5, 

subchapter I of Vermont’s Air Pollution 

Control Environmental Protection 

regulations) and a significant net 

emissions increase (as defined in the 

definitions for ‘‘significant’’ under 

section 5–101 of Chapter 5, subchapter 

I of Vermont’s Air Pollution Control 

Environmental Protection regulations) 

occur. For the pollutant GHGs, an 

emissions increase shall be based on tpy 

CO2e, and shall be calculated assuming 

the pollutant GHGs is a regulated NSR 

pollutant, and ‘‘significant’’ is defined as 

75,000 tpy CO2e instead of applying the 

value in the definition of ‘‘major 

modification’’ under section 5–101 of 

Chapter 5, subchapter I of Vermont’s Air 

Pollution Control Environmental 

Protection regulations. 

Subpart VV—Virginia 

■ 24. Section 52.2423 is amended by 

adding paragraph (t) to read as follows: 

§ 52.2423 Approval status. 

* * * * * 

(t)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (t), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (t)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(t)— 

(i) the term greenhouse gas shall mean 

the air pollutant defined in 40 CFR 

86.1818–12(a) as the aggregate group of 

six greenhouse gases: Carbon dioxide, 

nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (t)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in 9 VAC 5–80–1605 G of 

the Commonwealth of Virginia’s 

Administrative Code) and a significant 

net emissions increase (as defined in the 

definitions for ‘‘net emissions increase,’’ 

‘‘significant’’ subparagraph a., and 

‘‘significant emissions increase’’ under 

9 VAC 5–80–1605 C of the 

Commonwealth of Virginia’s 

Administrative Code) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value 

specified in the definition for 

‘‘significant’’ subparagraph b. under 

9 VAC 5–80–1605 C of the 

Commonwealth of Virginia’s 

Administrative Code. 

Subpart YY—Wisconsin 

■ 25. Section 52.2572 is revised to read 

as follows: 

§ 52.2572 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Wisconsin’s plans for the attainment 

and maintenance of the National 

Ambient Air Quality Standards under 

section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977, except as noted 

below. In addition, continued 

satisfaction of the requirements of Part 

D for the Ozone portion of the State 

Implementation Plan depends on the 

adoption and submittal of RACT 

requirements on: 

(1) Group III Control Techniques 

Guideline sources within 1 year after 

January 1st following the issuance of 

each Group III control technique 

guideline; and 

(2) Major (actual emissions equal or 

greater than 100 tons VOC per year) 

non-control technique guideline sources 

in accordance with the State’s schedule 

contained in the 1982 Ozone SIP 

revision for Southeastern Wisconsin. 

(b)(1) Insofar as the Prevention of 

Significant Deterioration (PSD) 

provisions found in this subpart apply 

to stationary sources of greenhouse gas 

(GHGs) emissions, the Administrator 

approves that application only to the 

extent that GHGs are ‘‘subject to 

regulation’’, as provided in this 

paragraph (b), and the Administrator 

takes no action on that application to 

the extent that GHGs are not ‘‘subject to 

regulation.’’ 

(2) Beginning January 2, 2011, the 

pollutant GHGs is subject to regulation 

if: 

(i) The stationary source is a new 

major stationary source for a regulated 

NSR pollutant that is not GHGs, and 

also will emit or will have the potential 

to emit 75,000 tpy CO2e or more; or 

(ii) The stationary source is an 

existing major stationary source for a 


emcdonald on DSK2BSOYB1PROD with RULES3
82564 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

regulated NSR pollutant that is not 

GHGs, and also will have an emissions 

increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy 

CO2e or more; and, 

(3) Beginning July 1, 2011, in addition 

to the provisions in paragraph (b)(2) of 

this section, the pollutant GHGs shall 

also be subject to regulation: 

(i) At a new stationary source that will 

emit or have the potential to emit 

100,000 tpy CO2e; or 

(ii) At an existing stationary source 

that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary 

source undertakes a physical change or 

change in the method of operation that 

will result in an emissions increase of 

75,000 tpy CO2e or more. 

(4) For purposes of this paragraph 

(b)— 

(i) The term greenhouse gas shall 

mean the air pollutant defined in 40 

CFR 86.1818–12(a) as the aggregate 

group of six greenhouse gases: Carbon 

dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, 

and sulfur hexafluoride. 

(ii) The term tpy CO2 equivalent 

emissions (CO2e) shall represent an 

amount of GHGs emitted, and shall be 

computed as follows: 

(A) Multiplying the mass amount of 

emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, 

by the gas’s associated global warming 

potential published at Table A–1 to 

subpart A of 40 CFR part 98—Global 

Warming Potentials. 

(B) Sum the resultant value from 

paragraph (b)(4)(ii)(A) of this section for 

each gas to compute a tpy CO2e. 

(iii) The term emissions increase shall 

mean that both a significant emissions 

increase (as calculated using the 

procedures in NR 405.025 of 

Wisconsin’s Administrative Code) and a 

significant net emissions increase (as 

defined in NR 405.02, paragraphs (24), 

(27)(a), and (27m) of Wisconsin’s 

Administrative Code) occur. For the 

pollutant GHGs, an emissions increase 

shall be based on tpy CO2e, and shall be 

calculated assuming the pollutant GHGs 

is a regulated NSR pollutant, and 

‘‘significant’’ is defined as 75,000 tpy 

CO2e instead of applying the value in 

NR 405.02(27)(c) of Wisconsin’s 

Administrative Code. 

[FR Doc. 2010–32766 Filed 12–29–10; 8:45 am] 

BILLING CODE 6560–50–P 


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