[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82246-82254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32784]


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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.

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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: <a href="/cdn-cgi/l/email-protection#4b3d2e3f3f2e396528232e3932270b2e3b2a652c243d"><span class="__cf_email__" data-cfemail="651300111100174b060d00171c09250015044b020a13">[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 Vermont
                               Boston, MA 02109-
                               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 82247]]


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 GHG-emitting 
sources, and EPA established that deadline.
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    \1\ For convenience, we refer to ``states'' in this rulemaking 
to collectively mean states and local permitting authorities.
    \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 77698 (December 13, 2010).
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    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:
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    \3\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 
2010).

------------------------------------------------------------------------
             Industry group                         NAICS \a\
------------------------------------------------------------------------
Utilities (electric, natural gas, other  2211, 2212, 2213.
 systems).
Manufacturing (food, beverages,          311, 312, 313, 314, 315, 316.
 tobacco, textiles, leather).
Wood product, paper manufacturing......  321, 322.
Petroleum and coal products              32411, 32412, 32419.
 manufacturing.
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              3271, 3272, 3273, 3274, 3279.
 manufacturing.
Primary and fabricated metal             3311, 3312, 3313, 3314, 3315,
 manufacturing.                           3321, 3322, 3323, 3324, 3325,
                                          3326, 3327, 3328, 3329.
Machinery manufacturing................  3331, 3332, 3333, 3334, 3335,
                                          3336, 3339.
Computer and electronic products         3341, 3342, 3343, 3344, 3345,
 manufacturing.                           4446.
Electrical equipment, appliance, and     3351, 3352, 3353, 3359.
 component manufacturing.
Transportation equipment manufacturing.  3361, 3362, 3363, 3364, 3365,
                                          3366, 3366, 3369.
Furniture and related product            3371, 3372, 3379.
 manufacturing.
Miscellaneous manufacturing............  3391, 3399.
Waste management and remediation.......  5622, 5629.
Hospitals/nursing and residential care   6221, 6231, 6232, 6233, 6239.
 facilities.
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

[[Page 82248]]

rulemaking is found in those rulemakings and in the rulemakings 
referenced therein and will not be reiterated here.
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    \4\ Action 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).
    \5\ 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 (September 2, 2010).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \6\ 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 77698 (December 13, 2010).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \7\ EPA 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).
---------------------------------------------------------------------------

    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.
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    \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).
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    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\
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    \9\ 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 53,895-6 (September 2, 2010).
    \10\ Action 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).
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    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\
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    \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).
---------------------------------------------------------------------------

    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

[[Page 82249]]

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.
---------------------------------------------------------------------------

    \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.
    \13\ Thus, commenters are incorrect in characterizing EPA as 
having ``inadvertently omitted [Wyoming] from its notice of proposed 
rulemaking.''
---------------------------------------------------------------------------

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 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 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 GHG-emitting 
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

[[Page 82250]]

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 GHG-emitting 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\
---------------------------------------------------------------------------

    \14\ The Response to Comments document for the FIP can be found 
in the docket for this rulemaking.
---------------------------------------------------------------------------

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 CO<INF>2</INF>e 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

[[Page 82251]]

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 CO<INF>2</INF>e, and (ii) existing sources that emit GHGs in the 
amount of at least 100,000 tpy CO<INF>2</INF>e, 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 
CO<INF>2</INF>e).
    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 non-GHG 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\
---------------------------------------------------------------------------

    \15\ McCarthy Declaration, pp. 136-38, Table II.
---------------------------------------------------------------------------

    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

[[Page 82252]]

guidance and acting as a resource for the states as they make the 
various required permitting decisions for GHG emissions.
    Accordingly, beginning immediately we intend to work closely 
with the states--as we have already begun to do since earlier in the 
year--to help them promptly develop and submit to us their 
corrective SIP revisions that extend their PSD program to GHG-
emitting sources. Moreover, we intend to promptly act on their SIP 
submittals. Again, EPA's goal is to have each and every affected 
state have in place the necessary permitting authorities by the time 
businesses seeking construction permits need to have their 
applications processed and the permits issued--and to achieve that 
outcome by means of engaging with the states directly through a 
concerted process of consultation and support.
    EPA is taking up the additional task of proposing this FIP and 
the companion SIP Call action only because the Agency believes it is 
compelled to do so by the need to assure businesses, to the maximum 
extent possible and as promptly as possible, that a permitting 
authority is available to process PSD permit applications for GHG-
emitting sources once they become subject to PSD requirements on 
January 2, 2011.
    In order to provide that assurance, we are obligated to 
recognize, as both states and the regulated community already do, 
that there may be circumstances in which states are simply unable to 
develop and submit those SIP revisions by January 2, 2011, or for 
some period of time beyond that date. As a result, absent further 
action by EPA, those states' affected sources confront the risk that 
they may have to put on hold their plans to construct or modify, a 
risk that may have adverse consequences for the economy.
    Given these exigent circumstances, EPA proposes this plan, 
within the limits of our power, with the intent to make a back-up 
permitting authority available--and to send a signal of assurance 
expeditiously in order to reduce uncertainty and thus facilitate 
businesses' planning. Within the design of the CAA, it is EPA that 
must fill that role of back-up permitting authority. This FIP and 
the companion SIP Call action fulfill the CAA requirements to 
establish EPA in that role.
    At the same time, we propose these actions with the intent that 
states retain as much discretion as possible in the hand of the 
states. In the SIP Call rulemaking, EPA proposes that states may 
choose the deadline they consider reasonable for submission of their 
corrective SIP revision. If, under CAA requirements, we are 
compelled to promulgate a FIP, we invite the affected state to 
accept a delegation of authority to implement that FIP, so that it 
will still be the state that processes the permit applications, 
albeit operating under federal law. In addition, if we are compelled 
to issue a FIP, we intend to continue to work closely with the state 
to assist in developing and submitting for approval its corrective 
SIP revision, so as to minimize the amount of time that the FIP must 
remain in place.

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-for-profit 
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

[[Page 82253]]

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 GHG-emitting 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 GHG-emitting 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 GHG-emitting 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

[[Page 82254]]

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.


0
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]

0
1. The authority citation for part 52 continues to read as follows:

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

0
2. Section 52.1987 is revised to read as follows:


Sec.  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 Sec.  
52.21(b)(50) and the definition of ``Subject to regulation'' at Sec.  
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 Sec.  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.

0
3. Section 52.37 is added to read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  52.21(b)(49)(i).

[FR Doc. 2010-32784 Filed 12-29-10; 8:45 am]
BILLING CODE 6560-50-P


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