82246 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

(e) Enforcement. The U.S. Coast 

Guard may be assisted in the patrol and 

enforcement of the security zones by the 

San Diego Harbor Police. 

Dated: December 20, 2010. 

P.J. Hill, 

Commander, U.S. Coast Guard, Acting 

Captain of the Port San Diego, CA. 

[FR Doc. 2010–32914 Filed 12–28–10; 11:15 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0107; FRL–9245–3] 

RIN 2060–AQ45 

Action To Ensure Authority To Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas 

Emissions: Federal Implementation 

Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is establishing a federal 

implementation plan (FIP) to apply in 

each of seven states that have not 

submitted by their established deadline 

a corrective state implementation plan 

(SIP) revision to apply their Clean Air 

Act (CAA or Act) Prevention of 

Significant Deterioration (PSD) program 

to sources of greenhouse gases (GHGs). 

This action will ensure that a permitting 

authority—EPA—is available in these 

states as of January 2, 2011, when PSD 

becomes applicable to GHG-emitting 

sources, to issue preconstruction PSD 

permits and thereby facilitate 

construction or expansion. The seven 

states are: Arizona: Both Pinal County 

and Rest of State (excluding Maricopa 

County, Pima County, and Indian 

Country), Arkansas, Florida, Idaho, 

Kansas, Oregon, and Wyoming. This 

action is related to EPA’s recently 

promulgated final rule, published on 

December 13, 2010, which we call the 

GHG PSD SIP call, and in which EPA 

made a finding of substantial 

inadequacy and issued a SIP call for 

these seven states and several others on 

grounds that their SIPs do not apply the 

PSD program to GHG-emitting sources. 

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–2010–0107. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http://www.

regulations.gov or in hard copy at the 

U.S. Environmental Protection Agency, 

Air Docket, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution 

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

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

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

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Cheryl Vetter, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–03), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–4391; fax 

number: (919) 541–5509; e-mail 

address: vetter.cheryl@epa.gov. 

For information related to a specific 

state, local, or tribal permitting 

authority, please contact the appropriate 

EPA regional office: 

EPA regional office Contact for regional office (person, mailing address, 

telephone number) Permitting authority 

I ............................................ Dave Conroy, Chief, Air Programs Branch, EPA Region 

1, 5 Post Office Square, Suite 100, Boston, MA 

02109–3912, (617) 918–1661.

Connecticut, Massachusetts, Maine, New Hampshire, 

Rhode Island, and Vermont 

II ........................................... Raymond Werner, Chief, Air Programs Branch, EPA 

Region 2, 290 Broadway, 25th Floor, New York, NY 

10007–1866, (212) 637–3706.

New Jersey, New York, Puerto Rico, and Virgin Islands. 

III .......................................... Kathleen Cox, Chief, Permits and Technical Assessment Branch, EPA Region 3, 1650 Arch Street, 

Philadelphia, PA 19103–2029, (215) 814–2173.

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

IV .......................................... Lynorae Benjamin, Chief, Regulatory Development 

Section, Air, Pesticides and Toxics Management Division, EPA Region 4, Atlanta Federal Center, 61 

Forsyth Street, SW, Atlanta, GA 30303–3104, (404) 

562–9033.

Alabama, Florida, Georgia, Kentucky, Mississippi, North 

Carolina, South Carolina, and Tennessee. 

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

EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604–3507, (312) 886–1430.

Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. 

VI .......................................... Jeff Robinson, Chief, Air Permits Section, EPA Region 

6, Fountain Place 12th Floor, Suite 1200, 1445 Ross 

Avenue, Dallas, TX 75202–2733, (214) 665–6435.

Arkansas, Louisiana, New Mexico, Oklahoma, and 

Texas. 

VII ......................................... Mark Smith, Chief, Air Permitting and Compliance 

Branch, EPA Region 7, 901 North 5th Street, Kansas 

City, KS 66101, (913) 551–7876.

Iowa, Kansas, Missouri, and Nebraska. 

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

Modeling Unit, EPA Region 8, 1595 Wynkoop Street, 

Denver, CO 80202–1129, (303) 312–6416.

Colorado, Montana, North Dakota, South Dakota, Utah, 

and Wyoming. 

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

Hawthorne Street, San Francisco, CA 94105, (415) 

972–3974.

Arizona, California, Hawaii and the Pacific Islands, Indian Country within Region 9 and Navajo Nation, and 

Nevada. 

X ........................................... Nancy Helm, Manager, Federal and Delegated Air Programs Unit, EPA Region 10, 1200 Sixth Avenue, 

Suite 900, Seattle, WA 98101, (206) 553–6908.

Alaska, Idaho, Oregon, and Washington. 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82247 

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

rulemaking to collectively mean states and local 

permitting authorities. 

2Action to Ensure Authority to Issue Permits 

under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call— 

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

3Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 

31514 (June 3, 2010). 

4Action to Ensure Authority to Issue Permits 

under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan—Proposed rule, 75 FR 

53883 (September 2, 2010). 

5Action to Ensure Authority to Issue Permits 

under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call— 

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

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities affected by this rule include 

the seven state and local permitting 

authorities 1 identified by EPA to have 

not submitted by their deadline a SIP 

revision that would apply PSD 

requirements to GHG-emitting sources. 

In the GHG PSD SIP call,2 EPA 

determined that these seven states have 

SIPs that are substantially inadequate to 

achieve CAA requirements because their 

PSD programs do not apply to GHGemitting sources, and EPA established 

that deadline. 

Entities potentially affected by this 

rule also include sources in all industry 

groups, which have a direct obligation 

under the CAA to obtain a PSD permit 

for GHGs for projects that meet the 

applicability thresholds set forth in the 

Tailoring Rule.3 This independent 

obligation on sources is specific to PSD 

and derives from CAA section 165(a). 

Any source that is subject to a state PSD 

air permitting regulation not structured 

to apply to GHG-emitting sources will 

rely on this rule to obtain a permit that 

contains emission limitations that 

conform to requirements under CAA 

section 165(a). The majority of entities 

potentially affected by this action are 

expected to be in the following groups: 

Industry group NAICSa

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

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

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

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

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

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

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

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

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

3327, 3328, 3329. 

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

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

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

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

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

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

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

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

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

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

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

and leasing/sales industries. 

a North American Industry Classification System. 

B. How is the preamble organized? 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. How is the preamble organized? 

II. Overview of Rulemaking 

III. Final Action and Response to Comments 

A. Authority To Promulgate a FIP 

B. Timing of GHG PSD FIP 

C. Substance of GHG PSD FIP 

D. Period for GHG PSD FIP To Remain in 

Place 

E. Primacy of SIP Process 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

L. Congressional Review Act 

V. Judicial Review 

VI. Statutory Authority 

II. Overview of Rulemaking 

In this rulemaking, EPA is 

establishing a FIP, which we call the 

GHG PSD FIP, or simply, the FIP, to 

apply in each of seven states that have 

not submitted by December 22, 2010, a 

corrective SIP revision to apply their 

CAA PSD program to sources of GHGs. 

This is the deadline EPA established 

after the affected states indicated that 

they would not object to it, to ensure 

that a permitting authority would be in 

place as of January 2, 2011 to facilitate 

issuance of PSD permits for 

construction and modification of 

sources. 

This preamble should be read in 

conjunction with the preamble for the 

proposed rulemaking for this action, 

which we call the GHG PSD FIP 

proposal or the FIP proposal; 4 and the 

SIP call rulemaking that is associated 

with this rulemaking, including (i) the 

proposed SIP call rulemaking, which we 

call the GHG PSD SIP call proposal or 

the SIP call proposal, and which 

accompanied the FIP proposal,5 and (ii) 

the final SIP call rulemaking, which we 

call the GHG PSD SIP call or the SIP 

call. Background information for this 


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82248 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

6Action to Ensure Authority to Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call— 

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

7EPA issued to Arizona a separate finding of 

substantial inadequacy, SIP call, and deadline for 

SIP submittal for each of Pinal County and for the 

rest of the state (excluding Maricopa County, Pima 

County, and Indian Country). 

8 In this rulemaking, EPA is finalizing for Arizona 

a separate GHG PSD FIP for each of Pinal County 

and for the rest of the state (excluding Maricopa 

County, Pima County, and Indian Country). 

9Action to Ensure Authority to Issue Permits 

under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call— 

Proposed rule, 75 FR 53,895–6 (September 2, 2010). 

10Action to Ensure Authority to Issue Permits 

under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan—Proposed rule, 75 FR 

53,886 (September 2, 2010). 

11 Declaration of Gina McCarthy, ¶¶4–5, pp. 3–4, 

‘‘EPA’s Response To Motions To Stay,’’ Coalition for 

Responsible Regulation v. EPA, No. 09–1322 (and 

consolidated cases) (McCarthy Declaration). 

rulemaking is found in those 

rulemakings and in the rulemakings 

referenced therein and will not be 

reiterated here. 

By notices dated September 2, 2010, 

EPA published as companion actions 

the SIP call proposal and the FIP 

proposal. In the SIP call proposal, EPA 

proposed to find that 13 states with 

EPA-approved SIP PSD programs are 

substantially inadequate to meet CAA 

requirements because they do not 

appear to apply PSD requirements to 

GHG-emitting sources. For each of these 

states, EPA proposed to require the state 

(through a SIP call) to revise its SIP as 

necessary to correct such inadequacies. 

In the FIP proposal, EPA proposed a FIP 

to apply in any state that is unable to 

submit, by its deadline, a corrective SIP 

revision to apply the PSD program to 

sources of GHGs. The FIP would 

provide authority to EPA to issue PSD 

permits for construction or modification 

of appropriate GHG sources in the state. 

On December 1, 2010, EPA 

promulgated the GHG PSD SIP call, and 

EPA published it by notice dated 

December 13, 2010.6 In the SIP call, 

EPA finalized its finding that the SIPs 

of 13 states (comprising 15 state and 

local programs) are substantially 

inadequate to meet CAA requirements 

because they do not apply PSD 

requirements to GHG-emitting sources. 

In addition, EPA finalized a SIP call for 

each of these states, which required the 

state to revise its SIP as necessary to 

correct such inadequacies. Further, EPA 

established a deadline for each state to 

submit its corrective SIP revision. These 

deadlines, which differed among the 

states, ranged from December 22, 2010, 

to December 1, 2011. 

Seven states received a SIP submittal 

deadline of December 22, 2010, based 

on information received from each state 

during the public comment period that 

they would not object to this deadline. 

These seven states are: (1) Arizona: Both 

Pinal County and Rest of State 

(excluding Maricopa County, Pima 

County, and Indian Country); 7 (2) 

Arkansas; (3) Florida; (4) Idaho; (5) 

Kansas; (6) Oregon; and (7) Wyoming. 

On December 23, 2010, EPA issued a 

finding under CAA section 110(c)(1)(A) 

that each of the seven states ‘‘failed to 

make [the] required submission’’ of the 

corrective SIP call-mandated SIP 

revision by its December 22, 2010 

deadline. EPA notified each state of the 

finding by letter. Those letters are 

located in the docket for this 

rulemaking. 

III. Final Action and Response to 

Comments 

A. Authority To Promulgate a FIP 

In this rulemaking, EPA is finalizing 

the GHG PSD FIP as proposed for each 

of the seven states: (1) Arizona: Both 

Pinal County and Rest of State 

(excluding Maricopa County Pima 

County, and Indian Country); 8 (2) 

Arkansas; (3) Florida; (4) Idaho; (5) 

Kansas; (6) Oregon; and (7) Wyoming. 

The CAA authority for EPA to 

promulgate a FIP is found in CAA 

section 110(c)(1), which provides— 

The Administrator shall promulgate a 

Federal implementation plan at any time 

within 2 years after the Administrator—(A) 

finds that a State has failed to make a 

required submission * * * unless the State 

corrects the deficiency, and [EPA] approves 

the plan or plan revision, before the 

Administrator promulgates such [FIP]. 

As noted earlier in this preamble, on 

December 23, 2010, EPA issued a 

finding that each of the seven states 

affected by this rule ‘‘failed to make [the] 

required submission’’ of the corrective 

SIP call-mandated SIP revision by its 

December 22, 2010 deadline. 

Accordingly, under CAA section 

110(c)(1), EPA is required to promulgate 

a FIP for each of the states. 

It should be noted that EPA 

specifically proposed the FIP for six of 

the seven states affected by this 

rulemaking, all except for Wyoming. 

EPA did not include Wyoming among 

the states for which EPA specifically 

proposed the SIP call, and, as a result, 

did not include Wyoming among the 

states for which EPA specifically 

proposed the FIP. However, in the 

proposed SIP call, EPA stated that it was 

soliciting comment on all the other 

states, and, if EPA received information 

indicating that another state should 

receive the SIP call, then EPA would, 

without a supplemental or further 

proposal, issue a final SIP call for that 

other state.9 Similarly, EPA stated in the 

FIP proposal that if EPA issued a SIP 

call for that other state, and the other 

state did not submit a corrective SIP 

revision by its deadline, then, EPA 

would finalize the FIP for that other 

state, too.10

We reiterate that each of the seven 

states affected by this rulemaking 

specifically indicated to EPA that it 

preferred that EPA promulgate a FIP to 

take effect by January 2, 2011—when 

sources in the state become subject to 

PSD—rather than EPA not promulgate a 

FIP until a later time. This is because 

each state sought to assure that, as of 

January 2, 2011, a permitting authority 

for GHG-emitting sources would be in 

place in the state. These states made this 

choice by indicating that they did not 

object to EPA establishing a SIP 

submittal date of December 22, 2010, 

when EPA made clear in the proposed 

SIP call and FIP that if the state did not 

submit the required SIP revision by that 

date, then EPA would promulgate the 

FIP the next day. 75 FR at 53904/2 

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

(proposed FIP). For the most part, the 

remaining states that were subject to the 

SIP call indicated a later SIP submittal 

date, but they believe that although this 

will mean a short delay in the 

availability of a permitting authority for 

GHG-emitting sources in their state, that 

delay will not adversely affect their 

sources. EPA regional and headquarters 

officials conferred extensively with state 

officials concerning the states’ progress 

and plans and with the National 

Association of Clean Air Agencies.11

In this rulemaking, EPA is not taking 

final action to promulgate a FIP for any 

of the other states which EPA included 

in the FIP proposal. This is because for 

each of the other states, either EPA did 

not finalize the SIP call or EPA did 

finalize the SIP call but established a 

SIP submittal deadline that has not yet 

arrived. As a result, EPA has not issued 

a finding of failure to submit the 

required SIP revision for any of these 

other states. It continues to be EPA’s 

intent that if any of these other states 

does not submit the required SIP 

revision by its deadline, then EPA will 

immediately issue a finding of failure to 

submit a required SIP submission and 

immediately promulgate a GHG PSD FIP 

for that state. 

In comments received, some 

commenters stated, ‘‘Remarkably, EPA 

states that it will also directly 

promulgate a SIP call and FIP for any 


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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 82249 

12 During the comment period, Wyoming did 

send information indicating that, in Wyoming’s 

view, Wyoming did not have legal authority to 

apply PSD to GHG-emitting sources and therefore 

Wyoming should be included in the SIP call. A 

Wyoming environmental group provided comments 

during the comment period saying that it believed 

Wyoming did have legal authority to apply PSD to 

GHG-emitting sources. Accordingly, it is clear that 

the solicitation of comment was sufficient notice to 

the public. More detailed information regarding 

Wyoming and other states covered in this 

rulemaking may be found in the ‘‘Supplemental 

Information Document for Final Action to Ensure 

Authority to Issue Permits under the Prevention of 

Significant Deterioration Program to Sources of 

Greenhouse Gas Emissions: Finding of Substantial 

Inadequacy and SIP Call,’’ located in the docket for 

this rulemaking. 

13Thus, commenters are incorrect in 

characterizing EPA as having ‘‘inadvertently 

omitted [Wyoming] from its notice of proposed 

rulemaking.’’ 

states it has inadvertently omitted from 

its notice of proposed rulemaking.’’ 

Although the commenters do not 

elaborate upon this statement, they 

seem to imply that it would be improper 

for EPA to finalize a FIP for such states 

because we did not provide adequate 

notice and opportunity for comment. 

The only state for which this 

comment may be relevant is Wyoming, 

as noted earlier in this preamble. We 

disagree with the commenters. In the 

proposal, we listed the states with 

approved SIP PSD programs for which 

we were not proposing a finding of 

substantial inadequacy and a SIP call, 

and so were not proposing a FIP. But we 

went on to specifically solicit comment 

on whether each of those states merited 

a finding, SIP call,12 and, ultimately, a 

FIP; and we included citations to the 

relevant SIP provisions.13 Moreover, we 

generally described the circumstances 

under which those states may merit a 

FIP. As a result, commenters had 

adequate notice that EPA could 

ultimately finalize a FIP for those states 

if and when they missed their SIP 

submittal deadlines, and they had full 

opportunity to comment if they had 

relevant views or information. This was 

discussed in greater detail in the SIP 

call rulemaking 75 FR at 77715/6. 

B. Timing of GHG PSD FIP 

In the GHG PSD FIP proposal, we 

stated: 

If any of the states for which we issue the 

SIP Call does not meet its SIP submittal 

deadline, we will immediately issue a 

finding of failure to submit a required SIP 

submission, under CAA section 110(c)(1)(A), 

and immediately thereafter promulgate a FIP 

for the state. This timing for FIP 

promulgation is authorized under CAA 

section 110(c)(1), which authorizes us to 

promulgate a FIP ‘‘at any time within 2 years 

after’’ finding a failure to submit a required 

SIP submission. We intend to take these 

actions immediately in order to minimize 

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

to obtain PSD permits for their GHGs when 

they construct or modify, but no permitting 

authority is authorized to issue those 

permits. 

75 FR at 53,889/2. 

In this final rulemaking, we are 

proceeding in the same manner that we 

proposed, and for the same reasons. 

That is, we are exercising our discretion 

to promulgate the FIP for each of the 

seven affected states ‘‘immediately in 

order to minimize any period of time 

during which larger-emitting sources 

may be under an obligation to obtain 

PSD permits for their GHGs when they 

construct or modify, but no permitting 

authority is authorized to issue those 

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

that acting immediately is in the best 

interests of the states and the regulated 

community. 

EPA received comments that the 

process EPA has employed in this 

action, which was to propose the FIP as 

a companion rule to the proposed SIP 

call, and then to finalize the FIP 

immediately after making a finding that 

a state has not submitted the required 

SIP revision by its deadline, ‘‘is not how 

CAA section 110 works or how Congress 

intended it to work.’’ The commenter 

added that— 

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

[submit a SIP revision] after an applicable 

period as specified in the CAA or EPA 

regulations * * * and after EPA has made a 

determination that the SIP revision is 

deficient in one or more respects, may the 

Agency step in to propose a FIP rule. And 

only after taking that step could EPA then 

proceed * * * [to take final action on the 

FIP.] Notwithstanding EPA’s strained and 

out-of-context emphasis on the isolated 

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

very fact that the CAA affords EPA up to two 

full years in which to complete the 

cooperative task of considering whether a FIP 

is needed and how such a plan should be 

fashioned, and the corollary fact that the Act 

does not mandate any federal takeover in less 

than two years, militate against EPA’s 

approach here to FIP rulemaking. In 

particular, those facts undermine EPA’s 

assumption that it need not take the time to 

develop a proposed plan specifically directed 

at remedying identified deficiencies in a 

given state submission, and to give states and 

the regulated community a meaningful 

opportunity to comment on a proposed FIP 

that has been specifically developed to 

address the individual needs and 

circumstances of such a state. (Emphasis in 

original.) 

EPA disagrees with these comments. 

As we stated in the proposed rule, CAA 

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

promulgate a FIP ‘‘at any time within 2 

years after’’ finding a failure to submit 

a required SIP revision. We are 

promulgating the FIP immediately 

because we wish to minimize any 

disruption in permitting for the larger 

GHG-emitting sources and we are doing 

so after consultation with the affected 

states. The seven states that are the 

subject of this rulemaking told EPA that 

they would not object to the 

promulgation of a FIP at the earliest 

possible deadline, or December 22, 

2010, because that would ensure a 

permitting authority would be in place 

as of January 2, 2011. Without the FIP, 

these states would be without an 

approved program to issue PSD permits 

for GHG-emitting sources until the 

states submit, and EPA approves, a SIP 

revision. The FIP provides sources in 

these states an immediate mechanism to 

obtain required permits for construction 

and modification until the revised SIPs 

are approved. 

As for commenters’ analysis of CAA 

section 110(c), that provision, by its 

terms, imposes no constraints on when 

EPA may propose a FIP. This stands in 

contrast to other CAA provisions that do 

impose requirements for the timing of 

proposals. See CAA sections 

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

lack of constraints in CAA section 

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

at the same time that EPA proposed the 

SIP call. We do not agree that the overall 

construct of CAA section 110 imposes 

the implicit constraints that the 

commenter identifies. 

Instead, what is important is that for 

each of the 13 states for which EPA 

specifically proposed the FIP, which 

were the same as the ones for which 

EPA proposed the SIP call, the public 

had adequate notice of the 

circumstances under which EPA 

proposed that the state would become 

subject to the FIP. Those circumstances 

were that if EPA finalized the SIP call, 

as proposed, for the state, and if the 

state did not submit a SIP revision 

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

would establish a FIP for that state. In 

fact, EPA did finalize the SIP call for all 

but one of those 13 states and is now 

finalizing the FIP for six of them. 

Further, EPA received comments on the 

proposed FIP from several states and/or 

industries located in states for which 

EPA proposed the FIP, which indicates 

that the FIP proposal provided adequate 

notice. See, e.g., comments identified in 

the rulemaking docket as document 

numbers 0084.1 (Texas), 0055.1 

(Arkansas), 0066.1 (Texas Industry 

Project), and 0109.1 (National Mining 

Association). 

Although for Wyoming EPA did not 

specifically propose the SIP call or FIP, 

the public had the same opportunity to 


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82250 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

14The Response to Comments document for the 

FIP can be found in the docket for this rulemaking. 

comment on the prospect of a FIP for 

Wyoming as the public did for the states 

for which EPA did specifically propose 

the FIP. This is because EPA solicited 

comment on whether to issue a SIP call 

for Wyoming (along with other states 

with approved PSD programs); made 

clear that if EPA received certain 

information, EPA would finalize the SIP 

call for Wyoming; and, further, made 

clear that if EPA issued a SIP call for 

Wyoming and Wyoming did not submit 

the required SIP by Wyoming’s 

deadline, then EPA would finalize the 

FIP. In fact, Wyoming commented on 

the FIP. See comment identified in the 

rulemaking docket as document number 

0079.1. 

Moreover, EPA was clear that for each 

state subject to the SIP call that did not 

submit the required SIP revision by its 

SIP submittal deadline, EPA would 

immediately make a finding of failure to 

submit and immediately promulgate a 

FIP. EPA explained that this approach 

was needed to assure the availability of 

a permitting authority for sources in the 

state. 

Finally, each of the states and the 

public in general had adequate notice of 

the terms of the FIP as it would apply 

in any state. Specifically, EPA indicated 

that the FIP would apply PSD to 

GHG-emitting sources at the Tailoring 

Rule thresholds. 

Therefore, the FIP proposal was clear 

as to the circumstances under which 

EPA proposed to promulgate a FIP, the 

timing for the FIP, and the terms of the 

FIP. Moreover, each of those three 

things applied to each state that would 

become subject to the SIP call. 

Accordingly, the FIP proposal did, in 

fact, ‘‘give states and the regulated 

community a meaningful opportunity to 

comment on a proposed FIP that has 

been specifically developed to address 

the individual needs and circumstances 

of such a state,’’ as the commenter 

argues the FIP proposal needed to do. 

Several commenters raised an 

additional objection, which was that in 

their view, EPA failed to comply with 

the requirements of CAA section 

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

include a summary of ‘‘the factual data 

on which the proposed rule is based’’ 

and ‘‘the major legal interpretations and 

policy considerations underlying the 

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

information, and documents * * * on 

which the proposed rule relies shall be 

included in the docket on the date of 

publication of the proposed rule.’’ 

(Emphasis added by one of these 

commenters.) One of these commenters 

explained that (a) in the SIP call 

proposal, EPA had made a detailed 

request that states provide information 

as to whether their state law authorized 

the application of PSD to GHG-emitting 

sources; (b) this detailed request 

demonstrated that the proposal did not 

establish the legal basis for the SIP call; 

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

not include ‘‘information that is 

essential to determining whether a FIP 

for a given state is even appropriate and 

justified.’’ (Emphasis in original.) This 

commenter added— 

Only after EPA has received such 

information, and then taken the necessary 

time to evaluate the information and to make 

judgments as to whether or not a given state 

has authority under its SIP and other 

elements of state law to regulate GHGs under 

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

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

provide to the public a meaningful 

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

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

interpretations and policy considerations 

underlying the proposed rule’’—may EPA 

propose a FIP for any state that has been 

determined to lack that authority. (Emphasis 

in original.) 

We disagree with this comment. The 

preamble for the FIP proposal included 

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

‘‘summary’’ of the factual basis and legal 

interpretations. To reiterate, EPA 

identified the states for which EPA was 

proposing the FIP, 75 FR at 53886 and 

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

EPA would subject other states to the 

FIP if they, too, became subject to the 

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

53889/2; described the timing for the 

FIP, id. 53889/2–3; described the 

substance of the FIP, id. 53889/3– 

53890/1; and explained that CAA 

section 110(c)(1) provided the legal 

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

CAA section 307(d)(3) requirements is 

to provide the public with adequate 

notice, and these statements did so by 

making clear the circumstances under 

which EPA was proposing to 

promulgate a FIP and the timing and 

substance of the proposed FIP. 

It is true that for any state, whether 

and when EPA would finalize the FIP 

for any state depended on other factors, 

including whether EPA would finalize 

the SIP call for that state, what deadline 

EPA would establish, and whether the 

state would submit its required 

corrective SIP revision by that deadline. 

But the FIP proposal put the public on 

notice, with sufficient specificity, as to 

EPA’s plan. In any event, any FIP is 

necessarily dependent on other factors, 

including state actions. That is, under 

any circumstances, whether EPA 

finalizes any proposed FIP depends on 

whether (i) if the proposed FIP is based 

on the failure of a state to make a 

required submittal, the state makes the 

required submittal; or (ii) if the 

proposed FIP is based on EPA’s 

disapproval of a SIP revision, whether 

the state submits a revised SIP revision 

that EPA then approves. 

Most broadly, commenters’ 

approach—which is that EPA cannot 

propose a FIP in concert with a SIP call, 

but instead must proceed in seriatim by 

completing the SIP call first and then 

proposing the FIP—would result in 

lengthy delays in the establishment of a 

permitting authority to process GHGemitting sources’ PSD permit 

applications. As a result, commenters’ 

approach could well cause delays in 

these sources’ ability to undertake 

construction and modification projects. 

We include related comments and 

responses in the Response to Comments 

document.14

C. Substance of GHG PSD FIP 

In the FIP proposal, we stated: 

The proposed FIP constitutes the EPA 

regulations found in 40 CFR 52.21, including 

the PSD applicability provisions, with a 

limitation to assure that, strictly for purposes 

of this rulemaking, the FIP applies only to 

GHGs. Under the PSD applicability 

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

program applies to sources that emit the 

requisite amounts of any ‘‘regulated NSR 

pollutant[s],’’ including any air pollutant 

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

which EPA would promulgate a FIP to apply 

PSD to GHG-emitting pollutants, the 

approved SIP already applies PSD to other air 

pollutants. To appropriately limit the scope 

of the FIP, EPA proposes in this action to 

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

applicability provision to GHGs. 

We propose this FIP because it would, to 

the greatest extent possible, mirror EPA 

regulations (as well as those of most of the 

states). In addition, this FIP would readily 

incorporate the phase-in approach for PSD 

applicability to GHG sources that EPA has 

developed in the Tailoring Rule and expects 

to develop further through additional 

rulemaking. As explained in the Tailoring 

Rule, incorporating this phase-in approach— 

including Steps 1 and 2 of the phase-in as 

promulgated in the Tailoring Rule—can be 

most readily accomplished through 

interpretation of the terms in the definition 

‘‘regulated NSR pollutant,’’ including the 

term ‘‘subject to regulation.’’ 

In accordance with the Tailoring Rule, 

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

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

(that is, sources undertaking construction or 

modification projects that are required to 

apply for PSD permits anyway due to their 

non-GHG emissions and that emit GHGs in 

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

basis) and would apply in Step 2 of the 

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

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

threshold (that is, (i) sources that newly 


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15McCarthy Declaration, pp. 136–38, Table II. 

construct and would not be subject to PSD 

on account of their non-GHG emissions, but 

that emit GHGs in the amount of at least 

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

that emit GHGs in the amount of at least 

100,000 tpy CO2e, that undertake 

modifications that would not trigger PSD on 

the basis of their non-GHG emissions, but 

that increase GHGs by at least 75,000 tpy 

CO2e). 

Under the FIP, with respect to permits for 

‘‘anyway sources,’’ EPA will be responsible 

for acting on permit applications for only the 

GHG portion of the permit, and the state will 

retain responsibility for the rest of the permit. 

Likewise, with respect to permits for sources 

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

our preferred approach—for reasons of 

consistency—is that EPA will be responsible 

for acting on permit applications for only the 

GHG portion of the permit, that the state 

permitting authorities will be responsible for 

the non-GHG portion of the permit, and EPA 

will coordinate with the state permitting 

authority as needed in order to fully cover 

any non-GHG emissions that, for example, 

are subject to BACT because they exceed the 

significance levels. We recognize that 

questions may arise as to whether the state 

permitting authorities have authority to 

permit non-GHG emissions; as a result, we 

solicit comment on whether EPA should also 

be the permitting authority for the non-GHG 

portion of the permit for these latter sources. 

We propose that the FIP consist of the 

regulatory provisions included in 40 CFR 

52.21, except that the applicability provision 

would include a limitation so that it applies 

for purposes of this rulemaking only to 

GHGs. 

75 FR 53889/3 to 53,890/1. 

We are finalizing the FIP as we 

described it in the proposal, for the 

same reasons that we indicated in the 

proposal, all as quoted earlier in this 

preamble. 

State, industry, and environmental 

commenters questioned how having 

EPA issue the GHG portions of a permit 

while allowing states under a FIP to 

continue to be responsible for issuing 

the non-GHG portions of a PSD permit 

will work in practice. Commenters 

raised concerns about the potential for 

a source to be ‘‘faced with conflicting 

requirements and the need to mediate 

among permit engineers making BACT 

decisions.’’ 

We appreciate the commenters’ 

concern. We well recognize that 

dividing permitting responsibilities 

between two authorities—EPA for GHGs 

and the state for all other pollutants— 

will require close coordination between 

the two authorities to avoid duplication, 

conflicting determinations, and delays. 

We note that this situation is not 

without precedent. In many instances, 

EPA has been the PSD permitting 

authority but the state has accepted a 

delegation for parts of the PSD program, 

so that a source has had to go to both 

the state and EPA for its permit. In 

addition, all nonattainment areas in the 

nation are in attainment or are 

unclassifiable for at least one pollutant, 

so that every nonattainment area is also 

a PSD area. In some of these areas, the 

state is the permitting authority for 

nonattainment new source review (NSR) 

and EPA is the permitting authority for 

PSD. As a result, there are instances in 

which a new or modifying source in 

such an area has needed a 

nonattainment NSR permit from the 

state and a PSD permit from EPA. 

EPA is working expeditiously to 

develop recommended approaches for 

EPA regions and affected states to use in 

addressing the shared responsibility of 

issuing PSD permits for GHG-emitting 

sources. In addition, as discussed 

below, we intend for the GHG PSD FIP 

to remain in place only as long as 

necessary for states’ SIPs to be 

approved. Moreover, in this interim 

period, we intend to delegate permitting 

responsibility to those states that are 

able to implement it and that request it. 

States that request and receive a 

delegation will be responsible for 

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

moot commenters’ concerns about split 

permitting. EPA’s most recent 

information is that of the seven states 

for which EPA is promulgating a FIP, 

four states have indicated to EPA that 

they intend to seek a delegation 

(Arizona, Idaho, Kansas, and Oregon) 

and a fifth has indicated that it is 

considering seeking a delegation 

(Arkansas).15

In addition, beginning on July 1, 2011, 

those states without authority to 

regulate GHG may not be able to issue 

PSD permits for non-GHG pollutants to 

sources that are major only because of 

their GHG emissions. This is because 

under the state’s approved SIP, these 

sources are not major sources. In this 

circumstance, EPA will also be the PSD 

permitting authority for the non-GHG 

pollutants, but, as discussed in detail 

earlier in this preamble, EPA intends to 

work closely with each state to develop 

mutually acceptable approaches— 

including delegation of this authority 

where possible—to maximize the 

opportunity for the state to assume as 

much of the permitting responsibilities 

as possible. 

Finally, we are providing regulatory 

language to address Oregon. Oregon’s 

EPA-approved PSD SIP differs from the 

federal program with respect to which 

sources are subject to PSD. EPA is 

promulgating a FIP for Oregon that is 

consistent with the intent of the 

Tailoring Rule and that accommodates 

the difference in the Oregon program. 

That is, as of January 2, 2011, sources 

in Oregon that are currently required to 

get PSD permits under the approved SIP 

will be subject to review under the FIP 

for greenhouse gases if they exceed the 

Tailoring Rule thresholds. As of July 1, 

2011, the determination of which 

sources will be subject to PSD review 

for greenhouse gases under the FIP will 

be consistent with how applicability is 

determined under the current Oregon 

SIP for other regulated NSR pollutants. 

D. Period for GHG PSD FIP To Remain 

in Place 

In the FIP proposal, we stated our 

intention to leave any promulgated FIP 

in place for as short a period as possible, 

and to process any corrective SIP 

revision submitted by the state to fulfill 

the requirements of the SIP call as 

expeditiously as possible. Specifically, 

we stated: 

After we have promulgated a FIP, it must 

remain in place until the state submits a SIP 

revision and we approve that SIP revision. 

CAA section 110(c)(1). Under the present 

circumstances, we will act on a SIP revision 

to apply the PSD program to GHG sources as 

quickly as possible. Upon request of the state, 

we will parallel-process the SIP submittal. 

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

submittal for which the state intends to hold 

a hearing, we will propose the draft SIP 

submittal for approval and open a comment 

period during the same time as the state 

hearing. If the SIP submittal that the state 

ultimately submits to us is substantially 

similar to the draft SIP submittal, we will 

proceed to take final action without a further 

proposal or comment period. If we approve 

such a SIP revision, we will at the same time 

rescind the FIP. 

75 FR 53889/2–3. 

We continue to have these same 

intentions. Thus, we reaffirm our 

intention to leave the GHG PSD FIP in 

place only as long as is necessary for the 

state to submit and for EPA to approve 

a SIP revision that includes PSD 

permitting for GHG-emitting sources. As 

discussed in more detail later in this 

preamble, EPA continues to believe that 

the states should remain the primary 

permitting authority. 

E. Primacy of SIP Process 

In the FIP proposal we stated, 

This proposal [to promulgate a FIP] is 

secondary to our overarching goal, which is 

to assure that in every instance, it will be the 

state that will be that permitting authority. 

EPA continues to recognize that the states are 

best suited to the task of permitting because 

they and their sources have experience 

working together in the state PSD program to 

process permit applications. EPA seeks to 

remain solely in its primary role of providing 


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guidance and acting as a resource for the 

states as they make the various required 

permitting decisions for GHG emissions. 

Accordingly, beginning immediately we 

intend to work closely with the states—as we 

have already begun to do since earlier in the 

year—to help them promptly develop and 

submit to us their corrective SIP revisions 

that extend their PSD program to GHGemitting sources. Moreover, we intend to 

promptly act on their SIP submittals. Again, 

EPA’s goal is to have each and every affected 

state have in place the necessary permitting 

authorities by the time businesses seeking 

construction permits need to have their 

applications processed and the permits 

issued—and to achieve that outcome by 

means of engaging with the states directly 

through a concerted process of consultation 

and support. 

EPA is taking up the additional task of 

proposing this FIP and the companion SIP 

Call action only because the Agency believes 

it is compelled to do so by the need to assure 

businesses, to the maximum extent possible 

and as promptly as possible, that a permitting 

authority is available to process PSD permit 

applications for GHG-emitting sources once 

they become subject to PSD requirements on 

January 2, 2011. 

In order to provide that assurance, we are 

obligated to recognize, as both states and the 

regulated community already do, that there 

may be circumstances in which states are 

simply unable to develop and submit those 

SIP revisions by January 2, 2011, or for some 

period of time beyond that date. As a result, 

absent further action by EPA, those states’ 

affected sources confront the risk that they 

may have to put on hold their plans to 

construct or modify, a risk that may have 

adverse consequences for the economy. 

Given these exigent circumstances, EPA 

proposes this plan, within the limits of our 

power, with the intent to make a back-up 

permitting authority available—and to send a 

signal of assurance expeditiously in order to 

reduce uncertainty and thus facilitate 

businesses’ planning. Within the design of 

the CAA, it is EPA that must fill that role of 

back-up permitting authority. This FIP and 

the companion SIP Call action fulfill the 

CAA requirements to establish EPA in that 

role. 

At the same time, we propose these actions 

with the intent that states retain as much 

discretion as possible in the hand of the 

states. In the SIP Call rulemaking, EPA 

proposes that states may choose the deadline 

they consider reasonable for submission of 

their corrective SIP revision. If, under CAA 

requirements, we are compelled to 

promulgate a FIP, we invite the affected state 

to accept a delegation of authority to 

implement that FIP, so that it will still be the 

state that processes the permit applications, 

albeit operating under federal law. In 

addition, if we are compelled to issue a FIP, 

we intend to continue to work closely with 

the state to assist in developing and 

submitting for approval its corrective SIP 

revision, so as to minimize the amount of 

time that the FIP must remain in place. 

75 FR at 53890/1–2. 

In this rulemaking, we continue to 

have the same intentions and for the 

same reasons. Thus, we continue to 

believe that this action is necessary to 

ensure that sources in states with 

inadequate SIPs can obtain the 

necessary PSD permits for their GHG 

emissions. We have worked closely with 

states to establish reasonable deadlines 

for submitting revised SIPs and are 

finalizing this FIP based on deadlines 

agreed to by the affected states. We will 

continue to work with states, as we have 

done throughout the rulemaking 

process, to assist in development and 

expedite review of revised SIPs. In the 

meantime, however, this FIP is 

necessary for the seven states identified 

here in order to provide a permitting 

authority until an adequate SIP is 

submitted and approved. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

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. OMB has 

previously approved the information 

collection requirements contained in the 

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

CFR 52.21) and title V (see 40 CFR parts 

70 and 71) under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0003 and OMB 

control number 2060–0336 respectively. 

The OMB control numbers for EPA’s 

regulations in 40 CFR are listed in 40 

CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this notice on small entities, small 

entity is defined as: (1) A small business 

that is a small industrial entity as 

defined in the U.S. Small Business 

Administration (SBA) size standards 

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

governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

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

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

owned and operated and is not 

dominant in its field. 

Although this rule would lead to 

federal permitting requirements for 

certain sources, those sources are large 

emitters of GHGs and tend to be large 

sources. After considering the economic 

impacts of this rule on small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This final rule will not impose any 

requirements on small entities. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA, 2 U.S.C. 1531– 

1538) for state, local or tribal 

governments or the private section. The 

action imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector. This action merely 

prescribes EPA’s action for states that 

have not met their existing obligation 

for PSD SIP submittal. Thus, this rule is 

not subject to the requirements of 

sections 202 or 205 of UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action merely prescribes EPA’s action 

for states that have not met their 

existing obligation for PSD SIP 

submittal. 

E. Executive Order 13132—Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action 

merely prescribes EPA’s action for states 

that have not met their existing 

obligation for GHG PSD SIP submittal. 

Thus, Executive Order 13132 does not 

apply to this action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 


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specifically solicited comment on the 

proposal for this action from state and 

local officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This action does not impose a FIP 

in any tribal area. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets E.O. 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 E.O. has the potential to influence 

the regulation. This action is not subject 

to E.O. 13045 because it merely 

prescribes EPA’s action for states that do 

not meet their existing obligation for 

PSD SIP submittal. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 

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

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. This 

action merely prescribes EPA’s action 

for states that have not met their 

existing obligation for PSD SIP 

submittal. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This rulemaking does not involve 

technical standards. Therefore, EPA did 

not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the U.S. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. This rule merely 

prescribes EPA’s action for states that 

have not met their existing obligation 

for PSD SIP submittal. 

K. Determination Under Section 307(d) 

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

CAA, this action is subject to the 

provisions of section 307(d). Section 

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

of section 307(d) apply to ‘‘the 

promulgation or revision of an 

implementation plan by the 

Administrator under section 110(c) of 

this Act.’’ 

L. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action does not constitute a ‘‘major 

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

Therefore, this action will be effective 

December 30, 2010. 

V. Judicial Review 

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

which Federal Courts of Appeal have 

jurisdiction to hear petitions for review 

of which final actions by EPA. This 

section provides, in part, that petitions 

for review must be filed in the Court of 

Appeals for the District of Columbia 

Circuit: (i) When the agency action 

consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

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

when such action is locally or regionally 

applicable, if ‘‘such action is based on a 

determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

This rule is nationally applicable 

under CAA section 307(b)(1). 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 GHGemitting sources becoming subject to 

PSD; as well as EPA’s finding of 

substantial SIP inadequacy, imposition 

of a SIP call, and establishment of a 

deadline for SIP submittal. Moreover, in 

this rule, EPA is applying uniform 

principles for promulgating the FIP for 

each of the affected states, concerning, 

e.g., timing (that is, that EPA is 

promulgating the FIP for each affected 

state immediately) and scope (that is, 

that EPA is applying the FIP for GHGemitting sources). The FIP for each 

affected state has substantially the same, 

if not identical, terms. 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 across the 

country, and in several judicial circuits. 

For similar reasons, this rule is based 

on determinations of nationwide scope 

or effect. For each of the seven affected 

States, EPA is determining that it is 

appropriate to promulgate the FIP 

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

These determinations are the same for 

each of the states. The other provisions 

of the FIP are substantially the same, if 

not identical, for each affected state. 

Moreover, EPA is making these 

determinations and promulgating this 

action within the context of nationwide 

rulemakings and interpretation of the 

applicable CAA provisions, as noted 

above. 

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

Act, judicial review of this final action 

is available by filing of a petition for 

review in the U.S. Court of Appeals for 

the District of Columbia Circuit by 

February 28, 2011. Any such judicial 


srobinson on DSKHWCL6B1PROD with RULES
82254 Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations 

review is limited to only those 

objections that were raised with 

reasonable specificity in timely 

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

the Act, the requirements of this final 

action may not be challenged later in 

civil or criminal proceedings brought by 

us to enforce these requirements. 

VI. Statutory Authority 

The statutory authority for this action 

is provided by sections 110, 165, 301, 

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

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

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

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

7407(d)). 

List of Subjects in 40 CFR Part 52 

Air pollution control, Carbon dioxide, 

Carbon dioxide equivalents, Carbon 

monoxide, Environmental protection, 

Greenhouse gases, Hydrofluorocarbons, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Methane, Nitrogen dioxide, Nitrous 

oxide, Ozone, Particulate matter, 

Perfluorocarbons, Reporting and 

recordkeeping requirements, Sulfur 

hexafluoride, Sulfur oxides, Volatile 

organic compounds. 

Dated: December 23, 2010. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.1987 is revised to read 

as follows: 

§ 52.1987 Significant deterioration of air 

quality. 

* * * * * 

(d) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met for greenhouse gases since the plan 

does not include approvable procedures 

for permitting major sources of 

greenhouse gas emissions. Therefore, 

the Oregon Department of 

Environmental Quality rules identified 

in paragraph (a) of this section, and the 

Lane Regional Air Pollution Authority 

rules identified in paragraph (b) of this 

section, are hereby incorporated by 

reference with the following changes 

and made part of the applicable plan for 

the State of Oregon: 

(1) The definition of ‘‘Regulated NSR 

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

definition of ‘‘Subject to regulation’’ at 

§ 52.21(b)(49) are incorporated by 

reference, replacing the definition of 

‘‘Regulated air pollutant’’ at OAR 340– 

200–0020(97), for the purpose of 

greenhouse gases only; 

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

participation are incorporated by 

reference for the purposes of EPA 

permits issued pursuant to this 

paragraph; and 

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

Oregon Department of Environmental 

Quality rules and the Lane Regional Air 

Pollution Authority rules incorporated 

in this paragraph shall mean the EPA 

Administrator for the purposes of EPA 

permits issued pursuant to this 

paragraph. 

■ 3. Section 52.37 is added to read as 

follows: 

§ 52.37 What are the requirements of the 

Federal Implementation Plans (FIPs) to 

issue permits under the Prevention of 

Significant Deterioration requirements to 

sources that emit greenhouse gases? 

(a) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met to the extent the plan, as approved, 

of the states listed in paragraph (b) of 

this section does not apply with respect 

to emissions of the pollutant GHGs from 

certain stationary sources. Therefore, 

the provisions of § 52.21 except 

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

of the plan for each state listed in 

paragraph (b) of this section for: 

(1) Beginning January 2, 2011, the 

pollutant GHGs from stationary sources 

described in § 52.21(b)(49)(iv), and 

(2) beginning July 1, 2011, in addition 

to the pollutant GHGs from sources 

described under paragraph (a)(1) of this 

section, stationary sources described in 

§ 52.21(b)(49)(v). 

(b) Paragraph (a) of this section 

applies to: 

(1) Arizona, Pinal County; Rest of 

State (Excludes Maricopa County, Pima 

County, and Indian Country); 

(2) Arkansas; 

(3) Florida; 

(4) Idaho; 

(5) Kansas; 

(6) Wyoming. 

(c) For purposes of this section, the 

‘‘pollutant GHGs’’ refers to the pollutant 

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

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

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 70 

[EPA–HQ–OAR–2009–0517; FRL–9245–4] 

RIN 2060–AQ63 

Action To Ensure Authority To 

Implement Title V Permitting Programs 

Under the Greenhouse Gas Tailoring 

Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final Rule. 

SUMMARY: The final greenhouse gas 

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

issuing Federally-enforceable permits to 

the largest, most environmentally 

significant sources beginning January 2, 

2011. In this action, EPA is finalizing its 

proposed rulemaking to narrow EPA’s 

previous approval of State title V 

operating permit programs that apply 

(or may apply) to GHG-emitting sources. 

Specifically, in this final rule, EPA is 

narrowing its previous approval of 

certain State permitting thresholds for 

GHG emissions so that only sources that 

equal or exceed the GHG thresholds 

established in the final Tailoring Rule 

would be covered as major sources by 

the Federally-approved programs in the 

affected States. By raising the GHG 

thresholds that apply title V permitting 

to major sources in the affected States, 

this final rule will reduce the number of 

sources that will be issued Federallyenforceable title V permits and thereby 

significantly reduce permitting burdens 

for permitting agencies and sources 

alike in those States. 

DATES: This final rule is effective on 

December 30, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2009–0517. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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

copy at the EPA Docket Center EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Avenue, Northwest, 

Washington, DC. The Public Reading 

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

p.m., Monday through Friday, excluding 


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