[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Rules and Regulations]
[Pages 81874-81878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32762]



[[Page 81874]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2010-0107; FRL-9244-7]


Action To Ensure Authority To Issue Permits Under the Prevention 
of Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Failure To Submit State Implementation Plan 
Revisions Required for Greenhouse Gases

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is making a finding that seven states have failed to 
submit revisions to their EPA-approved state implementation plans 
(SIPs) to satisfy requirements of the Clean Air Act (CAA) to apply 
Prevention of Significant Deterioration (PSD) requirements to 
greenhouse gas (GHG)-emitting sources. By notice dated December 13, 
2010, EPA issued a ``SIP call'' for these seven, and six other, states, 
requiring each state to revise its SIP as necessary to correct the 
SIP's failure to apply PSD to such sources and establishing a SIP 
submittal deadline for each state. EPA established December 22, 2010, 
as the deadline for these seven states. By this action, EPA is making a 
finding that the seven states failed to submit the required SIP 
revisions by that date. This finding requires EPA to promulgate a 
Federal implementation plan (FIP) for these seven states applying PSD 
to GHG-emitting sources, and EPA is taking a separate action to 
promulgate the FIP immediately. The seven states are Arizona, Arkansas, 
Florida, Idaho, Kansas, Oregon, and Wyoming.

DATES: This action is effective on December 29, 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. Lisa Sutton, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-03), 
Environmental Protection Agency, Research Triangle Park, NC 27711; 
telephone number: (919) 541-3450; fax number: (919) 541-5509; e-mail 
address: <a href="/cdn-cgi/l/email-protection#30434544445f5e1e5c594351705540511e575f46"><span class="__cf_email__" data-cfemail="abd8dedfdfc4c585c7c2d8caebcedbca85ccc4dd">[email protected]</span></a>.
    For information related to a specific state, local, or tribal 
permitting authority, please contact the appropriate EPA regional 
office:

------------------------------------------------------------------------
                              Contact for regional
                                 office (person,
     EPA regional office        mailing address,    Permitting authority
                                telephone number)
------------------------------------------------------------------------
I...........................  Dave Conroy, Chief,   Connecticut,
                               Air Programs          Massachusetts,
                               Branch, EPA Region    Maine, New
                               1, 5 Post Office      Hampshire, Rhode
                               Square, Suite 100,    Island, and
                               Boston, MA 02109-     Vermont.
                               3912, (617) 918-
                               1661.
II..........................  Raymond Werner,       New Jersey, New
                               Chief, Air Programs   York, Puerto Rico,
                               Branch, EPA Region    and Virgin Islands.
                               2, 290 Broadway,
                               25th Floor, New
                               York, NY 10007-
                               1866, (212) 637-
                               3706.
III.........................  Kathleen Cox, Chief,  District of
                               Permits and           Columbia, Delaware,
                               Technical             Maryland,
                               Assessment Branch,    Pennsylvania,
                               EPA Region 3, 1650    Virginia, and West
                               Arch Street,          Virginia.
                               Philadelphia, PA
                               19103-2029, (215)
                               814-2173.
IV..........................  Lynorae Benjamin,     Alabama, Florida,
                               Chief, Regulatory     Georgia, Kentucky,
                               Development           Mississippi, North
                               Section, Air,         Carolina, South
                               Pesticides and        Carolina, and
                               Toxics Management     Tennessee.
                               Division, EPA
                               Region 4, Atlanta
                               Federal Center, 61
                               Forsyth Street,
                               SW., Atlanta, GA
                               30303-3104, (404)
                               562-9033.
V...........................  J. Elmer Bortzer,     Illinois, Indiana,
                               Chief, Air Programs   Michigan,
                               Branch (AR-18J),      Minnesota, Ohio,
                               EPA Region 5, 77      and Wisconsin.
                               West Jackson
                               Boulevard, Chicago,
                               IL 60604-3507,
                               (312) 886-1430.
VI..........................  Jeff Robinson,        Arkansas, Louisiana,
                               Chief, Air Permits    New Mexico,
                               Section, EPA Region   Oklahoma, and
                               6, Fountain Place     Texas.
                               12th Floor, Suite
                               1200, 1445 Ross
                               Avenue, Dallas, TX
                               75202-2733, (214)
                               665-6435.
VII.........................  Mark Smith, Chief,    Iowa, Kansas,
                               Air Permitting and    Missouri, and
                               Compliance Branch,    Nebraska.
                               EPA Region 7, 901
                               North 5th Street,
                               Kansas City, KS
                               66101, (913) 551-
                               7876.
VIII........................  Carl Daly, Unit       Colorado, Montana,
                               Leader, Air           North Dakota, South
                               Permitting,           Dakota, Utah, and
                               Monitoring &          Wyoming.
                               Modeling Unit, EPA
                               Region 8, 1595
                               Wynkoop Street,
                               Denver, CO 80202-
                               1129, (303) 312-
                               6416.
IX..........................  Gerardo Rios, Chief,  Arizona; California;
                               Permits Office, EPA   Hawaii and the
                               Region 9, 75          Pacific Islands;
                               Hawthorne Street,     Indian Country
                               San Francisco, CA     within Region 9 and
                               94105, (415) 972-     Navajo Nation; and
                               3974.                 Nevada.
X...........................  Nancy Helm, Manager,  Alaska, Idaho,
                               Federal and           Oregon, and
                               Delegated Air         Washington.
                               Programs Unit, EPA
                               Region 10, 1200
                               Sixth Avenue, Suite
                               900, Seattle, WA
                               98101, (206) 553-
                               6908.
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[[Page 81875]]


SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities affected by this rule include state and local permitting 
authorities.\1\ By this action, EPA is making a finding of failure to 
submit the required SIPs for seven states (comprising eight state and 
local programs) because their EPA-approved SIP PSD programs do not 
apply to GHG-emitting sources. The seven states are Arizona, Arkansas, 
Florida, Idaho, Kansas, Oregon, and Wyoming. In Arizona, the finding of 
failure applies to two EPA-approved PSD permit programs--``Pinal 
County'' and ``Rest of State (Excludes Maricopa County, Pima County, 
and Indian Country).''
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    \1\ For convenience, we refer to ``states'' in this rulemaking 
to collectively mean states and local permitting authorities.
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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. Background
    A. CAA and Regulatory Context
    1. SIP PSD Requirements
    2. SIP Inadequacy and Corrective Action
    B. Recent EPA Regulatory Action Concerning PSD Requirements for 
GHG-Emitting Sources
III. Final Action: Finding of Failure of Certain States To Submit 
Corrective SIP Revisions
IV. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedure Act 
(APA)
    B. Executive Order 12866--Regulatory Planning and Review
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform
    F. Executive Order 13132--Federalism
    G. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045--Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898--Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act
V. Judicial Review
VI. Statutory Authority

II. Background

A. CAA and Regulatory Context

    EPA described the relevant background information in the proposed 
and final rulemaking for what we call the GHG PSD SIP call or, simply, 
the SIP call,\2\ as well as in what we call the Tailoring Rule.\3\ 75 
FR at 31518-21. Knowledge of this background information is presumed 
and will be only briefly summarized here.
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    \2\ ``Action to Ensure Authority to Issue Permits under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call--Final Rule,'' 75 FR at 77698, 77700-04 (December 13, 2010) 
(final SIP call); ``Action to Ensure Authority to Issue Permits 
under the Prevention of Significant Deterioration Program to Sources 
of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and 
SIP Call--Proposed Rule,'' 75 FR 53892, 53896-98 (September 2, 2010) 
(proposed SIP call).
    \3\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514, 31518-21 
(June 3, 2010).
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1. SIP PSD Requirements
    In general, under the CAA PSD program, a stationary source must 
obtain a permit prior to undertaking construction or modification 
projects that would result in specified amounts of new or increased 
emissions of air pollutants that are subject to regulation under other 
provisions of the CAA. CAA sections 165(a)(1), 169(1). As we described 
in the SIP call and elsewhere, several CAA provisions, taken together, 
mandate that SIPs include PSD programs that are applicable to any air 
pollutant that is subject to regulation under the CAA, including, as 
discussed later in this preamble, GHGs on and after January 2, 2011. 
CAA sections 110(a)(2)(C), 110(a)(2)(J), 161.
2. SIP Inadequacy and Corrective Action
    The CAA provides a mechanism for the correction of SIPs with 
certain types of inadequacies. CAA section 110(k)(5) authorizes the 
Administrator to ``find[ ] that [a SIP] * * * is substantially 
inadequate to * * * comply with any requirement of this Act,'' and, 
based on that finding, to ``require the State to revise the [SIP] * * * 
to correct such inadequacies.'' This latter action is commonly referred 
to as a ``SIP call.'' In addition, this provision provides that EPA 
must notify the state of the substantial inadequacy and authorizes EPA 
to establish a ``reasonable deadline[ ] (not to exceed 18 months after 
the date of such notice)'' for the submission of the corrective SIP 
revision.
    If EPA does not receive the corrective SIP revision by the 
deadline, CAA section 110(c)(1)(A) authorizes EPA to ``find[ ] that 
[the] State has failed to make a required submission.'' Once EPA makes 
that finding, CAA section 110(c)(1) requires EPA to ``promulgate a 
Federal implementation plan at any time within 2 years after the 
[finding] * * * unless the State corrects the deficiency, and [EPA] 
approves the plan or plan revision, before [EPA] promulgates such 
[FIP].''

B. Recent EPA Regulatory Action Concerning PSD Requirements for GHG-
Emitting Sources

    In recent months, EPA has taken several distinct actions related to 
GHGs under the CAA. Some of these, in conjunction with the operation of 
the CAA, trigger PSD applicability for GHG-emitting sources on and 
after January 2, 2011, but focus the scope of PSD on the largest GHG-
emitting sources. These actions include what we call the Endangerment 
Finding,\4\ the Light-Duty Vehicle Rule,\5\ the Johnson Memo 
Reconsideration,\6\ and the Tailoring Rule.
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    \4\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \5\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \6\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
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    Closely related to this action, EPA promulgated the PSD GHG SIP 
call, under authority of CAA section 110(k)(5). In that action, 
applicable to 13 states, the Administrator issued a finding of 
substantial inadequacy as well as a SIP call and established a deadline 
for submission of the corrective SIP revision. The deadline was 12 
months after the date of the SIP call, unless the state indicated to 
EPA that it did not object to an earlier deadline, as early as 3 weeks 
after the date of the SIP call. Twelve of the states so indicated and 
therefore received an earlier deadline. 75 FR at 77705.
    All 13 states and their deadlines are listed in table II-1, ``SIP 
Call States and SIP Submittal Deadlines'':

[[Page 81876]]



         Table II-1--SIP Call States and SIP Submittal Deadlines
------------------------------------------------------------------------
                                                          SIP submittal
                    State (or area)                         deadline
------------------------------------------------------------------------
Arizona: Pinal County.................................          12/22/10
Arizona: Rest of State (Excludes Maricopa County, Pima          12/22/10
 County, and Indian Country)..........................
Arkansas..............................................          12/22/10
California: Sacramento Metropolitan AQMD..............          01/31/11
Connecticut...........................................          03/01/11
Florida...............................................          12/22/10
Idaho.................................................          12/22/10
Kansas................................................          12/22/10
Kentucky (Jefferson County): Louisville Metro Air               01/01/11
 Pollution Control District...........................
Kentucky: Rest of State (Excludes Louisville Metro Air          03/31/11
 Pollution Control District (Jefferson County)).......
Nebraska..............................................          03/01/11
Nevada: Clark County..................................          07/01/11
Oregon................................................          12/22/10
Texas.................................................          12/01/11
Wyoming...............................................          12/22/10
------------------------------------------------------------------------

    The SIP submittal deadlines that the final SIP call rule 
established for the states reflect, in almost all instances, a 
recognition by EPA and the states of the need to move expeditiously to 
assure the availability of a permitting authority. In the SIP call, EPA 
made clear that the purpose of establishing the shorter period as the 
deadline--for any state that advised us that it did not object to that 
shorter period--is to accommodate states that wish to ensure that a FIP 
is in effect as a backstop to avoid any gap in PSD permitting. 75 FR at 
77710.
    Seven of the 13 SIP-called states (including 8 of the 15 affected 
PSD programs) stated that they did not object to a SIP submittal 
deadline of December 22, 2010 (the earliest possible deadline), 75 FR 
at 77705,\7\ and those states are the subject of this final rule.
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    \7\ More detailed discussion about these seven states is 
included in the Supplemental Information Document prepared by EPA in 
support of the final SIP call. The Supplemental Information Document 
can be found in the docket for this rulemaking, at Document ID No. 
EPA-HQ-OAR-2010-0107-0129.
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    Also closely related to this action, EPA proposed a FIP \8\ action 
related to GHGs. We stated in the proposed FIP that if any of the 
states for which we issued the SIP call did not meet its SIP submittal 
deadline, we would immediately issue a finding of failure to submit a 
required SIP revision, under CAA section 110(c)(1)(A), and immediately 
thereafter promulgate a FIP for the state. We explained that we would 
take these actions immediately in order to minimize any period of time 
during which larger-emitting sources may be under an obligation to 
obtain PSD permits for their GHGs when they construct or modify, but no 
permitting authority is authorized to issue those permits. 75 FR at 
53889.
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    \8\ Proposed rule, ``Action To Ensure Authority To Issue Permits 
Under the Prevention of Significant Deterioration Program to Sources 
of Greenhouse Gas Emissions: Federal Implementation Plan.'' 75 FR 
53883 (September 2, 2010). The notice can be found in the docket for 
this rulemaking, at Document ID No. EPA-HQ-OAR-2010-0107-0045.
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III. Final Action: Finding of Failure of Certain States To Submit 
Corrective SIP Revisions

    By this final rule, EPA is making a finding under CAA section 
110(c) that seven states failed to submit a corrective SIP by December 
22, 2010, which was their SIP submittal deadline, as established under 
our SIP call. These seven states are Arizona, Arkansas, Florida, Idaho, 
Kansas, Oregon, and Wyoming. In Arizona, the finding of failure applies 
to two EPA-approved PSD permit programs--``Pinal County'' and ``Rest of 
State (Excludes Maricopa County, Pima County, and Indian Country).'' 
These seven states were included in the SIP call because their EPA-
approved SIP PSD programs do not apply to GHG-emitting sources.
    As we stated in our proposed FIP rulemaking (see 75 FR at 53889), 
if a state for which we issue the SIP call does not meet its SIP 
submittal deadline, we would immediately issue a finding of failure to 
submit a required SIP revision under CAA section 110(c)(1)(A). Once we 
make that finding, we are required under CAA section 110(c) to 
promulgate a FIP (unless first the state corrects the deficiency and 
EPA approves the plan or plan revision). By a separate action today, we 
are promulgating the FIP immediately.
    The making of a finding of failure in this final rule is important 
because it is the prerequisite for the FIP, and the FIP, in turn, 
establishes EPA as the permitting authority for GHG-emitting sources. 
Without our acting as that authority, large GHG-emitting sources in the 
affected states may be unable to obtain a PSD permit for their GHG 
emissions and therefore may face delays in undertaking construction or 
modification projects. Sources that emit or plan to emit large amounts 
of GHGs will, starting January 2, 2011, be required to obtain PSD 
permits before undertaking new construction or modification projects, 
but neither the states nor, absent the FIP, EPA would be authorized to 
issue the permits. With the FIP, EPA will have the authority to issue 
PSD permits by January 2, 2011.
    This rule is effective immediately upon publication in the Federal 
Register. Section 553(d) of the Administrative Procedure Act (APA), 5 
U.S.C. 553(d), generally provides that rules may not take effect 
earlier than 30 days after they are published in the Federal Register. 
However, APA section 553(d)(3) provides an exception when the agency 
finds good cause exists for a rule to take effect in less than 30 days.
    We find good cause exists here to make this rule effective upon 
publication because implementing a 30-day delayed effective date would 
interfere with the Agency's ability to ensure that, as of January 2, 
2011, there is a permitting authority authorized to issue certain major 
stationary sources in the affected states the required PSD permits for 
GHG emissions. A 30-day delay in the effective date of this rule will 
impede implementation of this rule and create regulatory confusion. 
This rule, establishing that certain states failed to submit corrective 
SIP revisions by their December 22, 2010, deadline, is necessary so 
that EPA can promulgate a FIP for those same states on December 23, 
2010. This timing will allow the FIP to be published and become 
effective by the January 2, 2011, date that PSD will first apply to 
GHG-emitting sources under the CAA. If EPA could not meet

[[Page 81877]]

those dates, for whatever reason, then, as of January 2, 2011, certain 
major stationary sources in the affected states would be required to 
obtain PSD permits for GHG emissions that no permitting authority would 
be authorized to issue. Thus, it would be impractical to wait 30 days 
for this rule to take effect. Moreover, EPA finds that it is necessary 
to make this rule effective upon publication to avoid any economic harm 
that the public and the regulated industry might incur if there is no 
permitting authority able to issue PSD permits for GHG emissions on 
January 2, 2011.
    The purpose of the APA's 30-day effective date provision is to give 
affected parties time to adjust their behavior before the final rule 
takes effect. Each of the states to which this rule applies indicated 
in comment letters to EPA that they do not object to those deadlines. 
Both the states and the public have been aware that we would take this 
approach to this rule for some time, that is, that we would establish a 
SIP submittal deadline as early as December 22, 2010, so that we could 
make a finding of failure to submit and promulgate a FIP as early as 
December 23, 2010, in order that the FIP could take effect by the 
January 2, 2011, date that PSD begins to apply to GHG-emitting sources. 
We described this approach in the proposed SIP call that was signed and 
made available to the public on August 12, 2010, even before its 
September 2, 2010, publication date in the Federal Register. Moreover, 
the public was afforded the opportunity to comment on this approach in 
the SIP call proposal. See 75 FR 53892, 53896.
    In addition, this rule is not a major rule under the Congressional 
Review Act (CRA). Thus, the 60-day delay in effective date required for 
major rules under the CRA does not apply.

IV. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedure Act (APA)

    This is a final EPA action but is not subject to notice-and-comment 
requirements of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b). EPA believes that because of the limited time provided to make 
findings of failure to submit regarding SIP submissions, Congress did 
not intend such findings to be subject to notice-and-comment 
rulemaking.
    However, to the extent such findings are subject to notice-and-
comment rulemaking, EPA invokes the good cause exception pursuant to 
the APA, 5 U.S.C. 553(b)(3)(B), which excuses the notice-and-comment 
obligation ``when the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' While the good cause 
exception is to be narrowly construed, Utility Solid Waste Activities 
Group v. Environmental Protection Agency, 236 F.3d 749, 754 (DC Cir. 
2001), it is also ``an important safety valve to be used where delay 
would do real harm.'' U.S. Steel Corp. v. U.S. Environmental Protection 
Agency, 595 F.2d 207, 214 (5th Cir. 1979). Notice and comment is 
impracticable where ``an agency finds that due and timely execution of 
its functions would be impeded by the notice otherwise required.'' 
Utility Solid Waste Activities Group, 236 F.3d at 754. Notice and 
comment is contrary to the public interest where ``the interest of the 
public would be defeated by any requirement of advance notice.'' Id. at 
755.
    Here, notice and comment are unnecessary because no EPA judgment is 
involved in making a nonsubstantive finding of failure to submit 
elements of SIP submissions required by the CAA. Furthermore, providing 
notice and comment would be impracticable because of the limited time 
provided under the statute for making such determinations. Finally, 
notice and comment would be contrary to the public interest because it 
would divert agency resources from the critical substantive review of 
complete SIPs. See 58 FR 51270, 51272, n.17 (October 1, 1993); 59 FR 
39832, 39853 (August 4, 1994). In addition, in this case, notice and 
comment would be impracticable and contrary to the public interest for 
the same reasons, discussed earlier in this preamble, why a 30-day 
effective date would be impracticable and contrary to the public 
interest.

B. Executive Order 12866--Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993). 
This action issues a finding that certain states failed to submit 
corrective SIPs by the deadline established in EPA's recently 
promulgated SIP call for the same states. This type of action is exempt 
from review under EO 12866.

C. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
However, OMB has previously approved the information collection 
requirements contained in the existing regulations for PSD (see, e.g., 
40 CFR 52.21) and title V (see 40 CFR parts 70 and 71) under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2060-0003 and OMB control number 2060-
0336, respectively. The OMB control numbers for EPA's regulations in 40 
CFR are listed in 40 CFR part 9.

D. 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 (APA) or any other statute. This rule is not subject to 
the notice-and-comment requirement of the APA, because the Agency has 
invoked the ``good cause'' exemption under 5 U.S.C. 553(b). Thus, this 
rule is not subject to the RFA.

E. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any state, local, or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of the UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action does 
not impose any new obligations or enforceable duties on any small 
governments.

F. Executive Order 13132--Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action merely prescribes EPA's 
action for states that do not meet their existing obligation for PSD 
SIP submittal. Thus, Executive Order 13132 does not apply to this 
action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA specifically solicited comment on this action, as part 
of the FIP proposal, from state and local officials.

[[Page 81878]]

G. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). In this action, 
EPA is not addressing any tribal implementation plans. This action is 
limited to states that do not meet their existing obligation for PSD 
SIP submittal. Thus, Executive Order 13175 does not apply to this 
action.
    Although Executive Order 13175 does not apply to this final rule, 
EPA specifically solicited additional comment on the proposal for this 
action from tribal officials and we received one comment from a tribal 
agency. Additionally, EPA participated in a conference call on July 29, 
2010, with the National Tribal Air Association (NTAA).

H. 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.

I. 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 a 
significant regulatory action under Executive Order 12866. This action 
merely prescribes EPA's action for states that do not meet their 
existing obligation for PSD SIP submittal.

J. 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 is not considering the use of any voluntary consensus standards.

K. Executive Order 12898--Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the U.S.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This rule merely prescribes EPA's action for states that 
do not meet their existing obligation for PSD SIP submittal.

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. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S. 804(3). EPA is not required 
to submit a rule report regarding this action under section 801 because 
this is a rule of agency organization, procedure, or practice that does 
not substantially affect the rights or obligations of non-agency 
parties.

V. Judicial Review

    Under section 307(b)(1) of the Act, judicial review of this final 
action is available by filing of a petition for review in the U.S. 
Court of Appeals for the District of Columbia Circuit by February 28, 
2011. Any such judicial review is limited to only those objections that 
are raised with reasonable specificity in timely comments. Under 
section 307(b)(2) of the Act, the requirements of this final action may 
not be challenged later in civil or criminal proceedings brought by us 
to enforce these requirements.

VI. Statutory Authority

    The statutory authority for this action is provided by sections 
101, 111, 114, 116, and 301 of the CAA as amended (42 U.S.C. 7401, 
7411, 7414, 7416, and 7601).

List of Subjects in 40 CFR Part 52

    Air pollution control, Carbon dioxide, Carbon dioxide equivalents, 
Carbon monoxide, Environmental protection, Greenhouse gases, 
Hydrofluorocarbons, Incorporation by reference, Intergovernmental 
relations, Lead, Methane, Nitrogen dioxide, Nitrous oxide, Ozone, 
Particulate matter, Perfluorocarbons, Reporting and recordkeeping 
requirements, Sulfur hexafluoride, Sulfur oxides, Volatile organic 
compounds.

    Dated: December 23, 2010.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2010-32762 Filed 12-28-10; 8:45 am]
BILLING CODE 6560-50-P


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