Summary of Interagency Working Comments on Draft Language under 

EO12866 Interagency Review. Subject to Further Policy Review.

1

EPA NPRM: Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3, 

GHG Plantwide Applicability Limitations and GHG Synthetic Minor Limitations

1. Page 12: Clear Statement as to Inapplicability of Streamlining Approaches to Non-Greenhouse 

Gas Permitting. Several commenters suggests the rule further clarify that the individual 

streamlining approaches being proposed or on which comment is sought apply only to

greenhouse gas permitting. It would also be helpful for the rule to include an explicit summary 

statement that EPA is not considering application of these approaches in the non-greenhouse 

gas permitting context. The commenters recommend that EPA include a statement like the 

following at the end of the first full paragraph on page 12: “While we are considering these 

streamlining options for greenhouse gas permitting due to the nature of the permitting 

challenges associated with them, we do not believe such techniques are appropriate for other 

pollutants.”

2. Page 22: Consultation with States. Several commenters suggest that EPA provide further 

explanation as to why the agency believes 2011 has been representative of permitting burdens 

and why the increases anticipated under steps 1 and 2 have not yet occurred. 

3. Pages 81-82: Statement of Burden as to the Applicability of Presumptive BACT to a Particular 

Source. Several commenters suggest that EPA provide further clarification as to the scope and 

evidentiary threshold for presumptive BACT. 

In seeking comment on this technique for purposes of a future proposed rulemaking, the 

preamble describes the process by which a presumptive best available control technology 

(BACT) level for a source category might be adjusted in the case of an individual source:

The first approach would develop, through notice-and-comment rulemaking or through 

permitting guidance, a presumptive BACT level for sources in a particular source category that 

subsequently could be applied and assessed in individual permitting actions. Under such an 

approach, while the top-down analysis for an individual permit would be fulfilled by a request to 

include the presumptive BACT limit, there would still be an opportunity for permitting 

authorities and the public to examine individual permits to assess whether there are significant 

case-specific energy, economic, and/or environmental impacts that would require adjustment of 

the presumed limit for that particular source. This form of presumptive BACT would create a 

rebuttable presumption that the emissions covered by the particular source’s BACT limit will, in 

fact, be controlled to the maximum degree that can be achieved. This presumption shifts the 

burden to the permitting authority or other interested parties to produce credible evidence that 

the application of presumptive BACT to that particular source would not comply with BACT 

requirements. If credible evidence were produced, then the source would either be required to 

produce evidence sufficient to show that the presumption is the best achievable control 

technology or to conduct an individualized top-down BACT analysis.

This passage does not describe the evidentiary threshold of credible evidence necessary to shift 

or rebut the burden of demonstrating presumptive BACT. To address this, EPA could add text 

such as the following in capital letters to the final sentences: “This presumption shifts the 
Summary of Interagency Working Comments on Draft Language under 

EO12866 Interagency Review. Subject to Further Policy Review.

2

burden to the permitting authority or other interested parties to produce credible evidence 

SUFFICIENT TO MAKE A PRIMA FACIE SHOWING that the application of presumptive BACT to 

that particular source would not comply with BACT requirements. If SUCH credible evidence 

were produced, then the source would either be required to produce evidence sufficient to 

show BY A PREPONDERANCE OF THE EVIDENCE that the presumption is the best achievable 

control technology or to conduct an individualized top-down BACT analysis.

4. Comments offered for consideration in further development of the rule. One commenter 

suggests that EPA consider when crafting these rules and further refining the Tailoring Rule; that 

is EPA’s treatment of biogenic non-CO2 GHGs. In the July 20, 2011 Federal Register notice 

(http://www.gpo.gov/fdsys/pkg/FR-2011-07-20/pdf/2011-17256.pdf ) EPA defers action for 

three (3) years for the “application of the Prevention of Significant Deterioration (PSD) and Title 

V permitting requirements to biogenic carbon dioxide (CO2) emissions from bioenergy and other 

biogenic stationary sources.” This deferral only defers PSD and Title V permitting for biogenic 

CO2 emission sources and does nothing to defer PSD and Title V action on biogenic non-CO2 

greenhouse gas emissions. All of EPA’s actions on the Tailoring rule should be mindful that EPA 

has not deferred permitting requirements on biogenic non-CO2 GHGs.

EPA’s Tailoring Rule (PSD and Title V) can be interpreted as applicable to all sources of biogenic 

methane (CH4) and biogenic nitrous oxide (N2O) that have the potential to emit (PTE) more 

than the Tailoring Rule threshold. This possibly includes the PTE from wildfires, animal 

emissions at confined animal feeding operations, potentially large fertilizer applications in 

production agriculture, fuel switching or co-firing at bioenergy facilities.

EPA has not included biogenic sources of non-CO2 GHGs in the three-year deferral nor has EPA 

thoroughly examined these sources to determine whether they may trip PSD or Title V 

thresholds and require permitting. Thereby, the Tailoring Rule could regulate biogenic source of 

non-CO2 GHGs with a PTE greater than whichever TPY CO2e threshold EPA selects. This seems 

like an unintended consequence of EPA’s Tailoring Rule and also a rare circumstance but the 

topic is appropriate for discussion in this context. For example, if a feedlot increases the 

number of cattle on the lot on a seasonal basis by approximately 17,000 head (approx. 2.9 tons 

CH4 (‘actual’ not even ‘potential’)/cow/year) this feeding operation could conceivably trip PSD 

on an annual basis for GHGs if the threshold were set at 50,000tpy. This number would double 

to 34,000 head if they maintain the recommended 100,000 TPY threshold. NRCS recognizes that 

these are unlikely circumstances but we encourage EPA to consider these issues and PTE 

guidance for agricultural and forestry operations as it continues to refine the Tailoring Rule. 

In addition, relevant to this discussion is EPA’s view on and current reconsideration of whether 

and how fugitive emissions are included in the major source permitting significance 

calculations. As an example, if cattle in a feedlot are considered fugitive sources and fugitive 

sources for this source category are not included in the significance calculation, then it is not a 

major concern. If however, either of those are not the case, it may pose a significant problem.

The commenter suggests that EPA clarify how it views fugitive emissions of GHGs in this rule in 

relation to the thresholds.
Summary of Interagency Working Comments on Draft Language under 

EO12866 Interagency Review. Subject to Further Policy Review.

3

Technical Comments

1. Page 21/Line 8: The date should be “January 2, 2011.”

2. Pages 39 and 43/First Full Paragraphs: These paragraphs do not contain the same description of 

the proposed regulatory changes related to plantwide applicability limitations streamlining. The 

paragraph on page 39 should be expanded to reflect the four elements as described on page 

43.

3. Page 14/First Full Paragraph/Line 2: The word “include” should be “included.”

4. Page 20/Last Paragraph/Line 3: The word “increases” should be “increase.”

5. Page 24/Last Paragraph/Line 1 and Page 28/Second Full Paragraph/Line 1: The word “amount” 

should “number.”

6. Page 74/First Full Paragraph/Line 2: The word “intall” should be “install.”