Determinations Concerning Need for Error 

Correction, Partial Approval and Partial 

Disapproval, and Federal Implementation Plan 

Regarding Texas’s Prevention of Significant 

Deterioration Program; Proposed Rule

Response to Comments 
(This page intentionally left blank.)
Determinations Concerning Need for Error 

Correction, Partial Approval and Partial 

Disapproval, and Federal Implementation 

Plan Regarding Texas’s Prevention of 

Significant Deterioration Program; Proposed 

Rule

Response to Comments

New Source Review Group

Air Quality Policy Division

Office of Air Quality Policy and Standards

U. S. Environmental Protection Agency

Research Triangle Park, NC 27711

April 2011
(This page intentionally left blank.)
i

Table of Contents

Acronyms and Abbreviations..................................................................................................... ii

1 Introduction...........................................................................................................................1

1.1 Background....................................................................................................................1

1.2 The Commenters............................................................................................................1

1.3 Organization of This Document......................................................................................1

2 Oral Testimony at the Public Hearing and Mass Comment Campaigns..................................5

2.1 Oral Testimony at the Public Hearing.............................................................................5

2.2 Mass Comment Campaigns............................................................................................5

3 General Comments on the Proposed Rulemaking ....................................................................9

4 Comments on EPA’s Determination that It Erred in Approving Texas’s PSD program........10

5 Comments on EPA’s Approach for Correcting Its Erroneous Approval ...............................23

5.1 Comments on CAA Section 110(k)(6) Authority..........................................................23

5.2 Comments on CAA Section 301 Authority...................................................................45

5.3 Comments on Inherent Authority under the APA and the Act.......................................47

5.4 Other Comments on EPA’s Error Correction ................................................................52

6 Comments on the Proposed FIP...........................................................................................56

7 Comments on Other Topics.................................................................................................57

7.1 Comments on a “Construction Ban” .............................................................................57

7.2 Comments on the Interim Final Rule ............................................................................63

7.3 Other Comments ..........................................................................................................66
ii

Acronyms and Abbreviations

Act Clean Air Act (42 U.S.C. 7401 – 7671q)

CAA Clean Air Act (42 U.S.C. 7401 – 7671q)

CFR Code of Federal Regulations

EPA U.S. Environmental Protection Agency

FIP Federal Implementation Plan

FR Federal Register

GHG Greenhouse Gas

NAAQS National Ambient Air Quality Standards

NSR New Source Review

PM10 Particulate matter less than 10 micrometers

PSD Prevention of Significant Deterioration

SIP State Implementation Plan

TACB Texas Air Control Board

U.S.C. United States Code
1

1 Introduction

1.1 Background 

The U.S. Environmental Protection Agency (EPA or “we”) proposed to correct our 

previous full approval of Texas’s Clean Air Act (CAA or Act) Prevention of Significant

Deterioration (PSD) program to be a partial approval and partial disapproval and proposed a 

Federal Implementation Plan (FIP) for Texas.1 This action was based on EPA’s determination 

that Texas’s PSD program is flawed because the state did not address how the program would 

apply to all pollutants that would become newly subject to regulation in the future, including 

non-National Ambient Air Quality Standard (NAAQS) pollutants, among them greenhouse gases 

(GHGs). The partial disapproval requires EPA to promulgate a FIP, and so EPA is also proposed

a FIP in order to assure that GHG-emitting sources in Texas are able to proceed with plans to

construct or expand.

1.2 The Commenters 

In the proposal, EPA stated that public comments were to be submitted by February 12, 

2011, which fell on a Saturday. In order to avoid confusion and ensure that the public was aware 

that it could submit comments as late as February 14, 2011, which was a Monday, we extended

the public comment period until February 14, 2011. A public hearing on the proposal was held in 

Dallas, Texas on January 14, 2011.

Sixty-seven speakers presented oral testimony at the public hearing. The oral testimony 

is discussed further in Section 2.1 of this document

We received over 5,330 comments. Of these, about 5,300 comments came from private 

citizens who responded to mass comment campaigns from environmental interest groups. These 

comments are discussed further in Section 2.2 of this document. 

In addition to the mass comment campaign, we received 28 unique comments, not 

including duplicates, requests to extend the public comment period, or letters unrelated to the 

rulemaking. The comments can be broken down by general type as follows: 17 from private 

citizens, 3 from Texas state government entities, 6 from industry associations, 1 from an 

environmental advocacy group, and 1 from a citizen education and advocacy group. These

comments are listed at the end of this section. The comments are summarized by topic in 

Sections 3 through 7 of this document.

1.3 Organization of This Document

After this introductory section, this document includes six additional sections as follows:

 1 The rulemaking was proposed in the Federal Register, Volume 75, pages 82,365 through 82,370 (75 FR 

82365) on December 30, 2010. 
2

• Section 2 – Oral Testimony at the Public Hearing and Mass Comment Campaigns

• Section 3 – General Comments on the Proposed Rulemaking

• Section 4 – Comments on EPA’s Determination that It Erred in Approving Texas’s 

PSD program

• Section 5 – Comments on EPA’s Approach for Correcting Its Erroneous Approval

• Section 6 – Comments on the Proposed FIP

• Section 7 – Comments on Other Topics
3

LIST OF UNIQUE COMMENTS

Document Id a b

EPA-HQ-OAR2010-1033-XXXX Title Type of Commenter

0065 Comment submitted by N. Adams Private Citizen

0111 Comment submitted by N. Wilson Private Citizen

0163 Comment submitted by D. Kocurek Private Citizen

0164 Comment submitted by B. Cox Private Citizen

0172 Comment submitted by F. Hobin Private Citizen

0173 Comment submitted by E. McLarty Private Citizen

0175 Comment submitted by M. Hoodwin Private Citizen

0190 Comment submitted by K. Wicce Private Citizen

0201 Comment submitted by M. Carter Private Citizen

0203 Comment submitted by M. Hamaker Private Citizen

0211 Comment submitted by L. Gorecki Private Citizen

0221 Comment submitted by K. Sieverman Private Citizen

0222 Comment submitted by D. Snowden Private Citizen

0223 Comment and attachment submitted by Todd Staples, Commissioner, Texas 

Department of Agriculture

Texas Government 

Entity

0224 Comment and attachment submitted by Leslie A. Hulse, American Chemistry 

Council (ACC)

Industry Association

0225 Comment and attachment submitted by Matthew G. Paulson, Baker Botts LLP on 

behalf of the Texas Industry Project (TIP)

Industry Association

0226 Comment and attachment submitted by John Fainter, President and CEO, Association 

of Electric Companies of Texas, Inc. (AECT)

Industry Association
4

LIST OF UNIQUE COMMENTS

Document Id a b

EPA-HQ-OAR2010-1033-XXXX Title Type of Commenter

0227 Comment and attachment submitted by Charles H. Knauss, Bingham McCutchen 

LLP; Roger R. Martella, Jr., Sidley Austin LLP; Matthew G. Paulson, Baker Botts 

LLP; on behalf of National Association of Manufacturers (NAM) et al.

Industry Association

0228 Comment and attachment submitted by Norman W. Fichthorn, Hunton & Williams 

LLP for Utility Air Regulatory Group (UARG)

Industry Association

0229 Comment and attachments submitted by Mark R. Vickery, P.G., Executive Director, 

Texas Commission on Environmental Quality (TCEQ)

Texas Government 

Entity

0230 Comment and attachment submitted by Vinson & Elkins LLP and Holland & Hart 

LLP on behalf of Coalition for Responsible Regulation, Inc. (CRR)

Industry Association

0231 Comment and attachment submitted by Craig Holt Segall, Project Attorney, Sierra 

Club et al.

Environmental 

Advocacy Group

0232 Comment and attachments submitted by Baker & Hostetler LLP on behalf of J. Reed 

Clay, Jr., Office of the Attorney General, State of Texas (Texas AG)

Texas Government 

Entity

0233 Comment submitted by M. J. McCarty Private Citizen

0234 Comment submitted by N. Lupo Private Citizen

0235 Comment submitted by D. Lawrence Private Citizen

0255 Comment submitted by M. and U. Herrmann Private Citizen

0257 Comment submitted by Karen Nicholson, President, League of Women Voters of 

Texas (LWV-TX)

Citizen educaton and 

advocacy Group

a

 Document ID identifies written comments found in Docket No. EPA-HQ-OAR-2010-1033 by document number.

b

 Documents submitted to the docket together appear in the docket as multiple documents with the same 4-digit "root number" followed by a 

unique extension. For example, comments received via email are generally assigned two numbers. First, the email message itself is assigned 

the root number (e.g., 0001). Second, the attached comment document is assigned an extended number based on the root number (e.g., 0001.1). 

Additional attachments, if any, would follow the same pattern (e.g., 0001.2, 0001.3, etc.). For the purposes of this table, we listed all related 

documents under the root number. In the summary text, the full document number is given.
5

2 Oral Testimony at the Public Hearing and Mass Comment

Campaigns

2.1 Oral Testimony at the Public Hearing

A total of 67 persons presented oral testimony at the public hearing held in Dallas, Texas 

on January 14, 2011. An additional 72 persons attended the meeting but chose not to present 

oral testimony. A verbatim transcript of the hearing is in the docket for this rulemaking, 

Document No. EPA-HQ-OAR-2010-1033-0259. Of these speakers, 31 identified themselves as 

concerned citizens, 34 persons were representing environmental or health advocacy 

organizations, and 2 persons identified themselves as public officials. 

Comment:

All of the commenters support EPA’s proposed actions in Texas. Nearly all of the 

commenters expressed the belief that GHGs should be regulated under the Act. Many believe 

that this action will not have negative impacts on the local economy. A majority of commenters 

also expressed distrust for the Texas state government’s role in protecting the environment and

public health. In addition, many of these commenters described environmental degradation they 

have witnessed or threats to the environment in their areas. Many of the comments specifically 

mentioned concern for the growing number of natural gas wells being drilled in their 

neighborhoods and towns.

Response:

We agree with the commenters that our proposed action is justified and appropriate. 

However, this action is not specifically related to the regulation of natural gas drilling in Texas. 

This action is limited to the PSD program as it applies to large sources emitting GHG emissions 

in Texas.

2.2 Mass Comment Campaigns

We received many comments from private citizens inspired by five mass comment 

campaigns. Most of these commenters submitted the templates provided by the sponsoring 

organizations without change, but others customized the templates to some degree.

Comments:

Comment 0067 represents a mass comment campaign organized by the Sierra Club, 

which was submitted essentially verbatim by 1,845 commenters. The comment reads as follows:

Dear Administrator Jackson,
6

Thank you for the positive steps you have taken by addressing carbon pollution in 

Texas’s air permitting program. This is an important first step in correcting the 

air quality of Texas. EPA’s action to step in and issue permits under federal law 

for carbon pollution is both necessary and a huge step toward protecting citizens 

from their own failed state government. Your recent actions will make sure that

businesses in Texas can get the construction permits they need this year. But now 

is the time to do more by protecting our public health -- not just Texas industry.

As you know, Texas’s air permitting program is broken in multiple ways and only 

you can protect our health and ensure that Texas’s businesses comply with the 

law of the land. Texas refuses to comply with federal law. Among its many 

flaws, the program refuses to address carbon pollution, its flexible permit 

programming is illegal, it inadequately enforces its approved air permitting 

programs, it fails to adequately promote public participation. Texas’s refusal to 

apply federal law has no basis and puts the health of citizens and jobs at risk.

Now is the time for you to please do more to fix Texas's air permitting program 

once and for all.

An additional 153 commenters submitted comments via the Sierra Club campaign, most

incorporating some or all of the same points.2

 In addition, many of these commenters described 

environmental degradation they have witnesses or threats to the environment in their areas and/or 

expressed dissatisfaction with the Texas state government for what they perceive to be

shortcomings in environmental protection.

Comment 0250 represents a campaign organized by the Greenpeace. It consists of a 

petition with 429 signers and reads as follows:

Dear Administrator Jackson,

Thank you for taking steps to limit pollution from coal-fired power plants. These 

facilities threaten the health of communities here in Texas and fuel dangerous 

climate change. Texas’s refusal to comply with common-sense federal standards 

puts our health and the future of our planet at risk. Currently, several elements of 

the [Texas Commission on Environmental Quality’s] permitting program are in 

violation of the Federal Clean Air Act. EPA has the legal obligation and moral 

duty to intervene and fix Texas’s air permitting program. 

Comment 0251 represents a mass comment campaign sponsored by the National Wildlife 

Federation, which was submitted without change by 2,153 commenters. Three additional 

commenters (0186, 0195, and 0197) added slight variations, including comments regarding 

 2 These are comments EPA-HQ-OAR-2010-1033-0066, 0068-0110, 0112-0162, 0165-0169, 0171, 0174, 

0176-0185, 0187-0189, 0191-0194, 0196, 0198-0200, 0202, 0204-0210, 0212-0216, 0218-0220, 0236-0248, and 

0254.
7

natural gas drilling, environmental degradation, and dissatisfaction with the Texas state 

government. The main comment reads as follows:

Dear Agency,

I strongly support Environmental Protection Agency’s action to correct Texas’

flawed air permitting program by issuing federal permits for new or modified 

sources of global warming pollution. Now is the time for swift and effective 

action to cut these harmful emissions, and Texas’ obstructionist tactics are illegal, 

counterproductive, and damaging to our local environment and economy.

By refusing to implement the federal law, Texas is attempting to block regulations 

that would clean up our air while also providing the regulatory certainty that 

businesses need. It is both appropriate and necessary for EPA to step in and 

ensure that the Clean Air Act, our landmark public health protection law, is 

followed in Texas. I am grateful for EPA’s leadership in finally taking action to 

cut global warming pollution from the largest sources in the country, and urge you 

to continue to move forward boldly in confronting this urgent threat.

Comment 0252 represents a campaign sponsored by Environment America. It consists of 

a petition with 296 signers and reads as the follows:

Dear EPA Administrator Lisa Jackson,

Coal-fired power plants and industrial facilities spew hundreds of thousands of 

tons of dangerous pollutants into our air every year. This pollution cuts short the 

lives of thousands of Americans each year, and is particularly harmful to babies 

and young children, who are at risk of developmental disorders and respiratory 

illnesses.

Please protect the public from dangerous pollution and save lives by:

• Establishing strong standards for toxic pollutants like mercury, lead, soot and 

dioxins from industrial facilities and power plants;

• Significantly reducing global warming pollution through new standards for 

power plants and other stationary sources.

Please take these steps to protect the health of our families and future generations.

Comment 0253 represents a campaign sponsored by Environment Texas. It consists of a 

petition with 415 signers and reads as the follows:

Dear EPA Administrator Jackson:
8

Texans are suffering from air pollution coming from the state’s refineries, 

chemical plants and power plants. Big polluters like Exxon Mobil are operating 

under permits that fail to meet federal standards and routinely violate even those 

overly generous limits. 

Irresponsibly, officials at the Texas Commission on Environmental Quality have 

failed to protect public health and ensure compliance with the law. 

We urge you to prepare a Federal Implementation Plan to compel Texas to 

comply with the Clean Air Act. 

Response:

We agree with the commenters that our proposed action to address carbon pollution in 

Texas’s air permitting program is justified and appropriate in order to allow businesses to get 

permits. We are not, in this action, addressing other aspects of Texas’s permitting program, 

including flexible air permits, Texas’s enforcement of its current air permitting program, or 

opportunities for public participation in the issuance of permits by Texas. This action is not 

related to regulation of air toxics, or the establishment of new standards for source categories 

such as power plants or natural gas production.
9

3 General Comments on the Proposed Rulemaking

Comment:

Fourteen commenters, including 12 private citizens (0111, 0163, 0164, 0172, 0173, 0175, 

0190, 0201, 0203, 0211, 0221, 0222), 1 environmental advocacy group (0231.1), and 1 citizen 

educaton and advocacy group (0257), expressed general support for our action. In contrast, ten

commenters, including three Texas governmental entities (0223.1, 0229.2, 0232.1), six industry 

associations (0224.1, 0225.1, 0226.1, 0227.1, 0228.1, 0230.1), and one private citizen (0065)

opposed the proposed rule and requested that EPA withdraw it.

The supportive private citizens (0111, 0163, 0164, 0172, 0173, 0175, 0190, 0201, 0203, 

0211, 0221, 0222) generally encouraged EPA to provide federal enforcement of the Act in 

Texas. In many cases, these commenters expressed concern that the state government is not 

safeguarding the health of Texas’s citizens but instead favoring business interests. Often, these 

comments voiced broad concerns that were not specific to GHGs. The public interest advocacy 

group (0257) noted that Texas is the top emitter of carbon dioxide in the United States and 

strongly supported the proposed action to provide a FIP in Texas, believing that it is clear that 

Texas is not implementing and does not intend to implement the Act with regard to GHGs. The 

environmental advocacy group (0231.1) similarly expressed the opinion that EPA’s action is 

necessary because Texas refuses to implement federal law, which requires it to address GHG

emissions from the largest industrial sources, and because Texas maintains that its SIP does not 

allow Texas to comply with the Act.

The opposing commenters (0065, 0223.1, 0224.1, 0225.1, 0226.1, 0227.1, 0228.1, 

0229.1, 0230.1, 0232.1) generally asserted that the interim final and proposed rules are unlawful

for a variety of reasons, sometimes indicating that EPA’s action is arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law. These commenters frequently noted that 

these rules were published shortly after EPA provided Texas a deadline of December 1, 2011 to 

submit revisions to its SIP. The particulars of these comments are detailed in the subsequent 

sections of this document.

Response:

We agree with the commenters who stated that this action is necessary to provide a 

permitting authority for GHG in Texas. This rule does not, however, address other issues with 

regard to air permitting in Texas. Detailed comments on the rule are addressed in the specific 

sections below. 
10

4 Comments on EPA’s Determination that It Erred in 

Approving Texas’s PSD program

Comment:

One commenter (0231.1) expressed support for EPA’s determination that it was in error 

when it approved Texas’s PSD SIP, while four other commenters (0227.1, 0229.2 TCEQ, 

0230.1, 0232.1 Texas AG) disagreed. The comments are summarized in the following 

paragraphs.

The supportive commenter (0231.1) noted that EPA acknowledges that it knew when it 

approved Texas’s SIP, that the SIP did not automatically incorporate newly‐regulated 

pollutants. 75 FR 82340, 82438‐39, December 30, 2010. Thus, continuing pollution control was 

left at the state’s discretion, rather than required as a matter of law – a gap that has led directly to 

today’s problems, as Texas refuses to regulate GHGs under PSD. The commenter pointed out 

that other states with SIPs that do not automatically update have made sure that they complete 

the necessary SIP revision process in a timely manner (with some agreeing to an interim FIP as 

needed), so as to prevent any significant gaps in authority. Thus, the commenter believes that no 

correction of their SIPs is needed.

This commenter (0231.1) indicated that statements by Texas and EPA at the time of the 

initial SIP approval demonstrate that the state had not made a binding commitment to keep its 

SIP up to date. Although a September 5, 1989, commitment letter stated that Texas intended to 

implement EPA requirements “as effectively as possible,” EPA did not understand this statement 

as a binding commitment to swiftly update the SIP to account for new pollutants and other 

requirements. Instead, EPA approved the SIP stating that it did “not intend to suggest that Texas 

is required to follow EPA’s interpretations and guidance issued under the Act” and that, though 

EPA would exercise a “vigorous oversight and enforcement role,” Texas would “remain free to 

follow [its] own course.” 57 FR 28,093, 28095, June 24, 1992. The commenter believes that 

these general statements raised serious questions, which EPA failed to address at the time of 

approval and never subsequently addressed in a formal determination until recently, when the 

full implications of the error and the extent of Texas’s refusal to meet federal requirements came 

to the fore. The commenter concluded that EPA thus erred when it approved Texas’s PSD SIP in

that it failed to secure binding, regulatory commitments that Texas would expand its

preconstruction program when the Act so required.

Response:

We agree with the comment that we made an error in previously approving the Texas SIP

(0231.1). We also agree with the comment that, while other states do not automatically update 

their SIPs, each of those states, unlike Texas, have taken actions to address permitting of GHG. 

These measures include taking steps to revise the SIP or cooperating with EPA to facilitate the 

timely issuance of a FIP so that permitting may continue in the state. We agree with the 

commenter that no correction is needed at this time to these SIPs, in spite of the lack of a 

provision to automatically update to include pollutants newly subject to regulation. There are 

several reasons for this conclusion. First, each of these states may have addressed in other ways 
11

the need to apply PSD to pollutants newly subject to regulation, so that their SIPs cannot be said 

to be flawed. Even if not, because each of these states is taking action to assure that its GHGemitting sources have a permitting authority available, any flaw in the SIP is not one that 

requires EPA corrective action at this time. The error correction provision, CAA §110(k)(6), is 

discretionary, and EPA has no reason to exercise its discretion to apply this provision to those 

states at this time. We disagree with commenters that contend that we are treating Texas 

differently from other states. It is because Texas has stated that it will neither implement PSD 

requirements for GHGs by revising or committing to revise its SIP, nor cooperate with EPA to 

assure the timely availability of a permitting authority for its GHG-emitting sources that Texas 

can be distinguished from other states, and that EPA’s error in previously approving the Texas 

PSD SIP has been made apparent and EPA’s discretionary use of the error correction provision 

is justified. This issue is discussed in more detail in the preamble to the final rule. 

Comment:

One of the opposing commenters (0232.1 Texas AG) asserted that EPA’s approval of 

Texas’s PSD SIP in 1992 was correct and that EPA lacked statutory authority to do anything 

other than fully approve Texas’s SIP submission. The commenter provided extensive rationale 

for this position, which is discussed below:

The commenter stated that EPA must approve a SIP submission that comports with the 

Act. The EPA’s authority to disapprove SIP submissions is limited by CAA section 110(k)(3), 

which states that EPA “shall approve such submittal as a whole if it meets all of the applicable 

requirements of this chapter.” United States Code, Title 42, section 7410(k)(3) [42 U.S.C. 

7410(k)(3)]; see also BCCA Appeal Grp. v. EPA, 355 F.3d 817, 826 (5th Cir. 2003) (“EPA’s role 

in approving air pollution control plans is limited”; the agency “must approve a plan [submittal] 

if it meets minimum statutory requirements”). Section 161 of the Act requires EPA to establish 

the minimum requirements that the state must meet, which it has in the Code of Federal 

Regulations, Title 40, section 51.166 (40 CFR 51.166).

Response:

EPA disagrees with this comment. For the reasons discussed in the preamble, EPA does 

not agree that the Texas SIP comports with the requirements of the Clean Air Act or 40 CFR 

51.166 because, among other things, Texas, in adopting the SIP and revising it since, has not 

addressed pollutants newly subject regulation.

Comment:

The commenter went on to state that the 40 CFR part 51 regulations did not require 

automatic updating or legal authority to require updates. The commenter referred to two part 51 

regulations in this discussion—

o At the time EPA approved Texas’s SIP in 1992, 40 CFR 51.166 did not require 

approvable SIP submissions to automatically update, to contain provisions 

specifically addressing SIP revisions to incorporate pollutants that subsequently 
12

became subject to regulation under the Act, or to provide legal assurances about 

matters not included in the SIP. The commenter is not aware of any regulations, 

interpretive decisions, or contemporaneous SIP approval actions whereby EPA

took the view that automatic updating was required, nor does EPA identify any in 

the interim final rule. 

o The regulations at 40 CFR 51.230 that interpret CAA section 110(a)(2)(E) extend 

only to carrying out “the plan” as approved and preventing activities that would 

prevent “the attainment or maintenance of a national standard.” The regulations 

do not require legal authority for applying the PSD program to pollutants for 

which EPA has not promulgated a national standard that may be attained or 

maintained. This is consistent with case law interpreting CAA section 110, which 

requires only that the state have legal authority to carry out the plan:

 BCCA Appeal Grp., 355 F.3d at 844 (stating that the “plain language of the 

[Clean Air Act] only requires a state to give assurances that it has the funding, 

personnel, and authority to implement the plan . . . .”) (emphasis added).

 Sierra Club v. Larson, 2 F.3d 462, 471 n.9 (1st Cir. 1993) (this provision 

“requires a state to provide ‘necessary assurances’ that it has authority under 

state law to carry out the implementation plan.”).

 Wall v. EPA, 265 F.3d 426, 429 (6th Cir. 2001) (stating that a SIP “must also 

include provisions for the enforcement of the measures included in the SIP . . . 

as well as the commitment of adequate resources and legal authority to 

implement the enforcement measures”)

Response:

For the reasons discussed in the preamble, the Texas SIP PSD program was required to 

address its applicability to pollutants newly subject to regulation. The Clean Air Act provides 

that PSD applies to a pollutant at the time it becomes subject to regulation, without further 

regulatory action by EPA, CAA §§165(a)(1), 169(1); and EPA regulations have long codified 

this automatically updating aspect of the CAA PSD requirements. See 43 FR 26,380, 26,403/3, 

26,406 (June 19, 1978) (promulgating 40 CFR 51.21(b)(1)(i)) and 42 FR 57,479, 57,480, 57,483 

(November 3, 1977) (proposing 40 CFR 51.21(b)(1)(i)). Because PSD applies automatically to 

pollutants newly subject to regulation, SIP PSD programs must address how the program will 

cover such pollutants. See CAA §§110(a)(2(C) (requiring SIPs to include “a permit program as 

required in part[] C”), 110(a)(2)(J) (requiring SIPs to meet the applicable requirements of part 

C, relating to PSD); CAA §161 (requiring SIPs to include emission limitations and such other 

measures as may be necessary to prevent significant deterioration). Under CAA §110(k)(3), 

EPA may approve a SIP only if it meets all of the applicable requirements. EPA has never 

required SIP PSD programs to automatically apply to such pollutants, but if a program does not 

do so, then the State or the SIP must address in some other manner the applicability of the 

program to such pollutants. If the State or SIP fails to address such pollutants, then the PSD 

program does not incorporate the PSD requirement – which, again, is clear under both the CAA 

and long-standing EPA regulations – that PSD applies to all newly regulated pollutants, and the 

SIP does not meet the requirements of CAA §§110(a)(2)(C) and (J) and 161, and EPA may not 

approve it under CAA §110(k)(3). 

EPA’s primary basis in this rulemaking for concluding that it erred in approving Texas’s 

PSD program is that at the time that EPA approved the program, the program – as illuminated 
13

by Texas’s recent statements -- did not address the program’s applicability to pollutants newly 

subject to regulation. There are several ways that the SIP could address the program’s 

applicability to such pollutants. One way would be for the program to automatically update to 

apply to any pollutant newly subject to regulation. Although the Texas SIP PSD program 

appears to apply by its terms to all pollutants subject to regulation, other provisions of Texas 

law (which are not part of the SIP) limit that applicability to pollutants subject to regulation at 

the time that Texas adopts, or updates, the SIP, and preclude the program from applying to 

pollutants that become newly subject to regulation after Texas adopts, or last updates the SIP, 

and until Texas further updates the SIP. Another way that the Texas SIP PSD program could 

address pollutants newly subject to regulation would be a commitment or agreement to update 

the SIP PSD program, through a SIP revision, to apply to any pollutant newly subject to 

regulation. Other ways may be possible as well. However, in this case EPA has concluded that 

Texas’s PSD SIP does not address in any way the applicability of pollutants newly subject to 

regulation.

EPA recognizes that it could be argued that at the time EPA approved the Texas SIP PSD 

program, that program met all CAA requirements due to Texas’s several commitment letters, 

discussed elsewhere, coupled with the fact that Texas had submitted SIP revisions to apply its 

PSD program to pollutants newly subject to regulation after Texas’s initial SIP submittal 

containing its PSD program. For the reasons discussed elsewhere, EPA does not view these 

commitment letters or the actions Texas took as indicating that Texas or the SIP addressed the 

applicability of its PSD program to all pollutants newly subject to regulation, and this 

particularly so in light of recent statements. Instead, EPA’s conclusion is that Texas’s PSD 

program had a gap and so was flawed, and therefore EPA’s approval of that program was in 

error. 

However, if it were to be concluded that in fact, Texas’s PSD program did meet CAA 

requirements through the commitment letters and other actions, so that the PSD program does 

adequately address its applicability to pollutants newly subject to regulation, then EPA has 

another concern that, under those circumstances, provides the basis for its action in this 

rulemaking. That stems from the separate CAA requirement under CAA §110(a)(2)(E)(i) that 

each SIP provide “necessary assurances that the State ... will have adequate ... authority under 

State ... law to carry out such implementation plan (and is not prohibited by any provision of 

Federal or State law from carrying out such implementation plan...).” EPA has reviewed the 

record, the relevant parts of which are described in the preamble, and sees no evidence of 

assurances that Texas has the authority to carry out its SIP PSD program in a manner that 

addresses pollutants newly subject to regulation. To the contrary, Texas’s state law, which, 

again, is not part of the SIP, precludes automatic updating, and thus Texas is prohibited by a 

provision of state law from carrying out the SIP. Moreover, as discussed in the preamble, Texas 

has recently stated that “Texas has neither the authority nor the intention of interpreting, 

ignoring, or amending its laws in order to compel the permitting of greenhouse gas emission.” 

This statement confirms that Texas does not view itself as having the authority to apply its SIP to 

cover at least one pollutant newly subject to regulation: GHGs. Although Texas did not make 

this statement or one like it with respect to the SIP PSD program as it applied in 1992, when 

EPA approved that program, there is no reason to believe that Texas had broader legal authority 

at that time, and it is clear now that Texas did not. 
14

Comment:

The commenter stated that the EPA always understood that Texas’s SIP did not 

“automatically update” or “address the application of PSD to pollutants newly subject to 

regulation. The EPA suggested in the interim final rule that it did not understand that Texas’s 

SIP did not “address the application of PSD to pollutants newly subject to regulation, including 

non-NAAQS pollutants.” 75 FR 82450. However, EPA was well aware in 1992, and at all times 

since, that Texas’s SIP did not automatically update. The EPA’s claims are contrary to its other 

SIP actions and are internally contradictory: “ It is clear from the record that both Texas and 

EPA were well aware that the Texas PSD rules’ IBR of EPA PSD regulatory requirements did 

not automatically update.” 75 FR 82449.

o In 1987, Texas included a specific date in its PSD SIP to clarify that the content 

of its SIP pertaining to smokestack height requirements would not change with 

later interpretation of the Act. Texas Air Control Board (“TACB”) Order No. 87-

09, July 17, 1987. The EPA not only had full knowledge of this action, but itself 

suggested that Texas put the date in its SIP. Letter from William B. Hathaway,

Director, Air, Pesticides and Toxics Division, EPA Region 6, to Allen Eli Bell, 

Executive Director, TACB, July 3, 1986. In short, EPA suggested the very means 

by which Texas specified that its SIP did not automatically update.

o When Texas initially submitted its PSD SIP revision in 1985, EPA had not 

promulgated a NAAQS for particulate matter less than 10 micrometers (PM10).

After EPA promulgated that standard in 1987, Texas specifically revised the 

applicability date in its PSD SIP submission so that PM10 would be regulated 

under the relevant SIP provisions. TACB Board Order No. 88-08, July 15, 1988. 

Texas’s actions were made pursuant to CAA section 110(a)’s provisions for 

prospective SIP revisions.

 The EPA proposed to approve Texas’s SIP on the understanding that it was 

not necessary to incorporate by reference later requirements:

[T]he [Texas SIP] incorporates by reference the Federal PSD 

regulations (40 CFR 52.21) as they existed on August 1, 1987, 

which include revisions associated with the July 1, 1987, 

promulgation of revised [NAAQS] for particulate matter (52 FR

24872) and the visibility [new source review (NSR)] requirements 

noted above. . . .

57 FR 28093, 28094, June 24, 1992.

 The EPA further acknowledged that “any fundamental changes in the 

administration of PSD would have to be accomplished through amendments to 

the regulations in 40 C.F.R. §§ 52.21 and 51.166, and subsequent SIP 

revisions.” Id. The EPA was clear that this meant that the state could 

implement its SIP according to its terms:
15

The EPA did not intend to suggest that Texas is required to follow 

EPA’s interpretations and guidance issued under the Act in the 

sense that those pronouncements have independent status as 

enforceable provisions of the Texas PSD SIP, such that mere 

failure to follow such pronouncements, standing alone, would 

constitute a violation of the Act. . . .

. . . PSD-SIP approved states remain free to follow their own 

course, provided that state action is consistent with the letter and 

spirit of the SIP, when read in conjunction with the applicable 

statutory and regulatory provisions.

57 FR 28095.

Response:

We disagree with the comment that the flaw we are correcting in the Texas SIP is the 

failure to automatically update the SIP. As discussed above, the flaw in the Texas SIP is the 

broader gap due to failure of the State, at the time it submitted (and EPA approved) the PSD 

program, to address pollutants newly subject to regulation. Both Texas and EPA were well 

aware that the Texas SIP did not automatically apply PSD to pollutants newly subject to 

regulation, but even so, the Texas SIP does not address in any other way how the PSD program 

would apply to such pollutants and the record does not reveal that either Texas or EPA raised 

the issue. Texas’s subsequent actions have illuminated this gap EPA disagrees with the comment 

concerning “fundamental changes” for the reasons discussed in the preamble for this 

rulemaking. 

Comment:

The commenter objected to EPA’s argument that Texas did not “provide the requisite 

assurance that it had legal authority to apply” the PSD program “to pollutants newly subject to 

regulation, including non-NAAQS pollutants.” 75 FR 82432. However, according to the 

commenter, neither CAA section 110(a) nor the 40 CFR part 51 regulations require that states 

provide assurances that they have legal authority to apply the PSD program to pollutants newly 

subject to regulation. Instead, the state is only required to show that it has legal authority to 

carry out the implementation plan, 42 U.S.C. 7410(a)(2)(E), 40 CFR 51.120, including 

specifically authority to “prevent construction, modification, or operation of a facility . . . at any 

location which will prevent the attainment or maintenance of a national standard.” 40 CFR

51.230(d). According to this commenter, if EPA is correct that Texas’s plan, as approved, did 

not automatically update, then Texas cannot be required to have legal authority to carry out 

requirements that are not included in the plan. Similarly, because EPA has not promulgated a 

national standard that may be attained or maintained, the Agency correctly concluded in 1992 

that Texas need not provide specific legal assurances with respect to non-NAAQS pollutants.
16

Response:

We disagree with the comment that Texas is only required to provide assurances that it 

has legal authority to carry out its implementation plan. The requirement under CAA section 

110(a)(2)(E)(i) that each SIP provide “necessary assurances that the State ... will have adequate 

... authority under State ... law to carry out such implementation plan...” must be read in the 

context of the CAA mandate that SIPs meet all CAA requirements. That is, just as the SIP must 

meet all CAA requirements, the state must also provide assurances that the state has the legal 

authority to carry out a SIP that meets all CAA requirements. 

Comment: 

The EPA suggested that Texas’s SIP is deficient because it “did not include any 

information concerning Texas’s methods or timing for” making “pollutants newly subject to 

regulation” part of the SIP. 75 FR 82450. However, according to the commenter, EPA never 

suggested that it asked Texas or any other state to include this information in its PSD SIP. 75 FR

82441. Instead, the Act and the 40 CFR part 51 regulations provide the method and timing by 

which new requirements may be incorporated into a SIP. Moreover, EPA appropriately does not 

suggest that its action is based on Texas’s failure to meet any submittal deadline required under 

the Act or EPA’s regulations. The EPA may not find Texas’s SIP inadequate on this basis in the 

absence of default by Texas on a required deadline.

Response:

EPA made the statements, as quoted by the commenter, in the context of describing ways 

that Texas could have addressed the application of PSD to pollutants newly subject to 

regulation. These statements do not imply that this action is based on “based on Texas’s failure 

to meet any submittal deadline required under the Act or EPA’s regulations.” This action is 

based on EPA’s error in previously approving Texas’s SIP, as discussed elsewhere in this 

document, and at length in the preamble. As discussed elsewhere, the CAA and regulations 

require that PSD programs apply to pollutants newly subject to regulation. Texas’s SIP failed to

address how it would do so, and it is this that is the error that EPA identified and that served as 

the basis for the error correction. It is true that EPA does not suggest that its action is based on 

Texas’s failure to meet any submittal deadline required under the Act or EPA’s regulations, but, 

again, that is not EPA’s basis for this action.

Comment:

The commenter stated that the EPA’s approval of Texas’s SIP is consistent with its other 

SIP actions. The failure to automatically update is not a “flaw” in Texas’s SIP – it is an 

intentional feature designed to protect the rights of regulated entities and state-level separation of 

powers. The EPA approved Texas’s SIP without automatic updating, provisions governing the 

inclusion of pollutants that become subject to regulation after the SIP was promulgated, or legal 

assurances on updating. This approval was consistent with EPA’s other SIP approvals, as well 

as the terms of numerous SIPs that are currently in force.
17

o The EPA’s consistent and longstanding practice both reinforces Texas’s

explanation that EPA was required to approve SIPs that did not automatically 

update or provide for revisions in the case of pollutants that are newly subject to 

regulation under the Act, as well as constituting a binding interpretation of the 

Act. BankAmerica Corp. v. United States, 462 U.S. 122, 130-31 (1983) 

(emphasis added):

In rejecting the Government’s present interpretation of [the statute], 

we by no means depart from our long-held policy of giving great 

weight to the contemporaneous interpretation of a challenged statute 

by an agency charged with a challenged statute by an agency charged 

with its enforcement. But the Government does not come to this case 

with a consistent history of enforcing or attempting to enforce [the 

statute] in accord with what it urges now. On the contrary, for over 

60 years, the Government made no attempt, either by filing suit or by 

seeking voluntary resignations, to apply Section 8 to interlocks 

between banks and nonbanking corporations, even though interlocking 

directorates between banks and insurance companies were widespread 

and a matter of public record throughout the period. We find it 

difficult to believe that the Department of Justice and the Federal 

Trade Commission, which share authority for enforcement of the 

Clayton Act, and the Congress, which oversees those agencies, would 

have overlooked or ignored the pervasive and open practice of 

interlocking directorates between banks and insurance companies had 

it been thought contrary to the law.

See also Fed. Power Comm’n v. Panhandle E. Pipe Line Co., 337 U.S. 498, 513 

(1949) (“Failure to use such an important power for so long a time indicates to us 

that the Commission did not believe the power existed.”); Thomas Jefferson Univ. 

v. Shalala, 512 U.S. 504, 524 (1994) (Thomas, J., dissenting) (stating that an 

agency’s failure to give any substantive effect to a regulation for twenty years 

“certainly constitutes a ‘settled course of behavior’”).

o In 1990, EPA approved a Kansas SIP revision to regulate PM10. 55 FR 1420,

January 16, 1990. The EPA explained that this revision was necessary because 

Kansas, while adopting EPA’s PSD pollutant inventory by reference, did not 

allow automatic updating of that inventory. Id. at 1421. Instead, the state 

implementation rules incorporated the federal regulations as of a particular date, 

which had to be changed to effectuate the regulation of PM10. Id. The EPA 

explained that a SIP revision, rather than some automatic mechanism, was the 

usual and proper manner in which a state would address a newly regulated 

pollutant:

In order for states to regulate PM10, they must make certain changes in 

their rules and regulations and in the SIPs. The changes to the rules 

and the SIP must ensure that the PM10 NAAQS are attained and 

maintained; that new and modified sources which emit PM10 are 
18

reviewed; that PM10 is one of the pollutants to trigger alert, warning, 

and emergency actions; and that the states’ monitoring networks be

designed to include PM10 monitors.

Id. at 1421. Thus, it was EPA’s working assumption that, prior to revision, a SIP 

(1) would not ensure the attainment of NAAQS for a newly regulated pollutant; 

(2) would not require review of sources of such a pollutant; and (3) would not 

trigger actions otherwise required for regulated pollutants. Nor did EPA require 

Kansas to include provisions for revising its SIP in the SIP itself, or provide legal 

assurances on this point.

o In 2003, when EPA approved revisions to Kansas’s PSD regulations, EPA 

explained that the revisions was necessary to bring Kansas’s SIP up to date with 

the latest federal regulations: “This rule was last adopted as a State rule in 1990; 

therefore, this revision adopts by reference Federal PSD regulations, as in effect 

on July 1, 2000.” 68 FR 8845, February 26, 2003. The rule listed the changes to 

federal regulations that were, with that action, incorporated into the SIP. Id. As 

before, Kansas’s actions were taken pursuant to the normal SIP revision process, 

as set forth in the Act.

o Texas’s and Kansas’s SIPs are not the only ones that do not automatically update.

 Florida law provides that “[a] rule may incorporate material by reference . . . 

only as the material exists on the date the rule is adopted.” Florida Statutes

section 120.54(1)(i). Thus, under Florida law, “changes in the material are not 

effective unless the rule is amended to incorporate the changes.” Id.

 Idaho law provides that any “incorporated material shall be identified with 

specificity and shall include the date when the code, standard or rule was 

published, approved or became effective.” Idaho Code section 67-5229(3).

“If the agency subsequently wishes to adopt amendments to previously 

incorporated material,” it may do so only by complying with the usual 

procedures for rulemaking. Id.

 See also Oregon Administrative Rules section 340-200-0020(100).

Response:

The premise of this comment is that the error that EPA is correcting is the failure of the 

Texas SIP to automatically update to apply to pollutants newly subject to regulation. This is not 

the case. The error that EPA is correcting is the failure of the SIP to address the applicability of 

PSD to pollutants newly subject to regulation, whether by automatically updating or by some 

other method. Accordingly, although EPA has approved PSD SIPs that do not automatically 

apply PSD to pollutants newly subject to regulation, this does not mean that EPA has a longstanding practice of sanctioning PSD SIPs that do not address such pollutants, such that EPA is 

precluded from treating its approval of Texas’s PSD SIP as an error. Although the other states 

cited by the commenter do not have PSD programs that automatically update, the commenter 

has not demonstrated that those PSD programs do not otherwise address pollutants newly 

subject to regulation. Nor does EPA agree that the fact that EPA has approved the cited PSD 
19

programs establishes a long-standing practice or, if it does so, that such a practice necessarily 

precludes EPA from disapproving Texas’s PSD program at this time. As EPA has stated 

elsewhere, Texas is unique among the states because its recent statements and actions 

concerning non-NAAQS pollutants and GHGs have highlighted the gap in its PSD program and 

have justified EPA’s discretionary exercise of the error-correction provision. In contrast, all of 

the other states identified by the commenter have taken steps to assure that their GHG-emitting 

sources have available a permitting authority. For example, Kansas has updated its PSD SIP to 

apply to GHG-emitting sources and Florida, Idaho, and Oregon cooperated with EPA to assure 

that EPA could implement a FIP as of January 2, 2011 and thereby assure the availability of a 

permitting authority for GHG-emitting sources in the state.

Comment:

The commenter states that in 2002 EPA created a new definition of “regulated NSR 

pollutant” that automatically updates to address this issue in SIPs. Prevention of Significant 

Deterioration (PSD) and Nonattainment New Source Review (NNSR): Baseline Emissions 

Determination, Actual-to-Future-Actual Methodology, Plantwide Applicability Limitations, 

Clean Units, Pollution Control Projects – Final Rule, 67 FR 80186, 80220, December 31, 2002. 

To the best of the commenter’s knowledge, EPA has never required the states to promulgate 

definitions that update automatically to meet the 2002 NSR Rule’s revised minimum standards 

for approvable SIPs. Nor has the Agency ever required states to include alternative measures in 

their SIPs setting forth the procedure for revisions. The creation of this voluntary rule undercuts 

any claim that the failure to include automatic updating language in a SIP approved in 1992 (or 

at any time prior to 2002) is a “flaw” that necessitates “error-correction.”

Response:

As discussed elsewhere, the failure to have a SIP that automatically updates is not the 

flaw that this error-correction action seeks to correct. The flaw in the Texas SIP, that EPA 

mistakenly approved, is that it fails to address in any manner how PSD will be applied to 

pollutants newly subject to regulation. As discussed elsewhere in this document, and in the 

preamble, that could be through an automatic update, as most states do or through some other 

action. 

Comment:

According to the commenter, the EPA’s SIP actions demonstrate that EPA has never 

before interpreted the Act or its regulations to require that PSD SIP submissions include 

regulatory provisions that automatically update when EPA revises its regulations or reinterprets 

the Act. This long-standing interpretation conflicts with the position EPA has taken in the

interim final rule that Texas’s SIP is “flawed” because it does not automatically update to 

include “all pollutants newly subject to regulation.” 75 FR 82433. 

The commenter goes on to state that the flaws in EPA’s position are underscored by the 

Agency’s own recognition that other states have not automatically updated their SIPs to include 

GHGs, but that EPA will not consider whether those other SIPs are sufficient. 75 FR 82434. In 
20

short, EPA admits that Texas has been singled out not because of its SIP, but because of its 

statements. Moreover, EPA has singled out Texas for actions that EPA concedes in the GHG 

SIP Call are lawful and within Texas’s rights under the Act. The EPA’s decision to “correct” 

Texas’s SIP alone is arbitrary and capricious, an abuse of discretion, and contrary to law.

Another of the opposing commenters (0229.2 TCEQ) made some of the same points

about the fact that it has always been clear that Texas’s PSD rules are not prospective. This 

commenter also stated that the Texas PSD program meets all CAA requirements for an 

approvable program, and was not and is not flawed. The commenter asserted that Texas has 

always maintained adequate legal authority to implement the PSD program, and that EPA is now 

creating a new requirement that does not exist in the Act or the 40 CFR part 51 and part 52 

regulations. The commenter contended that EPA is now for the first time claiming that state 

PSD programs must automatically update or provide specific assurances that the state will revise 

its plan to apply to new pollutants, and that his is not a requirement found in statute or rule as a 

prerequisite for approval.

Another opposing commenter (0227.1) also made the point that the proposal creates 

disparate treatment of Texas as compared with other states. The commenter asserted that Texas 

is no different from many other states that take regulation of pollutants in stepwise fashion, yet 

EPA has not proposed to disapprove these other states’ SIPs. The commenter cited information 

from the Supplemental Information Document prepared by EPA for the SIP Call rule to contend 

that PSD SIPs in Arizona, Arkansas, Connecticut, Florida, and other states do not automatically 

update to include newly regulated pollutants.3

 The commenter incorporated the Supplemental 

Information Document by reference into its comments in order to make the document part of the 

record for purposes of judicial review of this action.

Response:

We respond to these comments elsewhere in this document and the preamble. We add 

here that the states of Arizona, Arkansas, and Connecticut have taken steps to assure the 

availability of a permitting authority on a timely basis in each of their states, whether by 

cooperating with EPA so that EPA was able to promulgate a FIP as of January 2, 2011 

(Arizona, Arkansas) or by proceeding to develop a SIP revision to apply PSD to its GHGemitting sources on a time-table consistent with the needs of its sources (Connecticut). 

Accordingly, unlike Texas, those states have not taken any action or made any statements that 

illuminate any gap in their SIPs or that have created real-world negative effects (such as, absent 

action by EPA, a delay in the availability of a permitting authority). We further note that 

although the commenter objects that EPA is singling out Texas because of Texas’s statements, 

the important point is that those statements, combined with Texas’s actions, have – in a manner 

unique to Texas -- illuminated the gap in Texas’s SIP and created adverse impacts that justifies 

EPA exercising its discretionary authority to correct under CAA §110(k)(6).

 3 The Supplemental Information Document is in the rulemaking docket for the SIP Call rule, Document 

No. EPA-HQ-OAR-2010-0107-0129. 
21

Comment:

The fourth opposing commenter (0230.1) stated that EPA’s decision to correct and 

partially revoke its approval of Texas’s PSD SIP is an abuse of discretion because EPA based 

that decision on materials outside the original administrative record. According to the 

commenter, EPA’s proposed rule makes clear that its conclusion is based in substantial part on 

“[r]ecent” statements by Texas officials that “confirm” that Texas’s SIP was inadequate at the 

time of EPA's original approval. By supplementing the administrative record in this way and 

using that evidence to attribute “error” to EPA’s original determination, the commenter believes 

that EPA’s present action contradicts the basic legal principle that an agency’s decision must be 

based only on material in the record before it at the time of the decision, as specifically provided

in CAA section 307(d)(6)(C) where it states that a “promulgated rule may not be based (in part 

or whole) on any information or data which has not been placed in the docket as of the date of 

such promulgation.”

Response:]

EPA disagrees with this comment. EPA’s 1992 approval of the Texas SIP was not taken 

under CAA §307(d), so that the paragraph (6)(C) is not relevant. In any event, the relevant 

action is the present one, and Texas’s recent statements are relevant to this action because they 

illuminate the meaning of Texas’s SIP and make clear that the gaps in Texas’s SIP have negative 

real-world impacts that merit EPA’s exercise of its discretionary authority under CAA 

§110(k)(6). 

Comment:

Three commenters (0224.1, 0227.1, 0228.1) indicated that the proposed and interim final 

rules for Texas are fatally flawed because the theory on which they rest, in conjunction with the 

SIP Narrowing Rule simultaneously promulgated at 75 FR 82536, would make approval of any 

PSD SIP “erroneous.” The commenters asserted that the effect of the PSD Narrowing Rule, 

combined with the rules for Texas, is that EPA can never approve any SIP in that (1) a SIP 

cannot be approved if, like Texas’s, it does not automatically incorporate whatever pollutant 

EPA may choose to regulate in the future, but (2) a SIP also cannot be approved if, like the PSD 

SIPs in the 24 states subject to the PSD Narrowing Rule, it does automatically incorporate 

whatever pollutant EPA chooses to regulate in the future, because then it does not “provide 

necessary assurances that they have adequate funding and personnel to implement their SIPs.” 

According to one of the commenters (0224.1), the only conceivable way for a state to 

avoid this conundrum is to adopt a SIP that merely incorporates all federal requirements 

instantaneously when EPA adopts them. However, the commenter believes that this is no 

solution at all because (1) many states, such as Texas, have state legislative and constitutional 

requirements that forbid them from adopting regulations that cede law making authority to the 

federal government, and (2) this is completely inconsistent with the cooperative federalism 

structure of the PSD program in that it would reduce the SIP process to one where the substance 

of each SIP would simply be dictated by EPA. Thus, the commenter asserted that these 

rulemakings are plainly inconsistent with congressional intent for the PSD program.
22

The second commenter (0228.1) concluded that EPA’s rationale reflects an interpretation 

of the Act that is neither plausible nor coherent. The commenter asserted that EPA has failed to 

provide an explanation as to how these rules and their competing and mutually inconsistent 

theories can coexist in any reasonable fashion that effectuates congressional intent.

The third commenter (0227.1) indicated that Texas’s approach is correct because states 

could never anticipate all the pollutants that EPA might choose to regulate and at what levels. 

Thus, the commenter believes that the approach of regulating pollutants as EPA regulates them, 

adopting requirements through proper state procedures, is far more consistent with congressional 

intent than an approach that would automatically incorporate pollutants that EPA regulates.

Response:

This issue is addressed in the preamble to the Final Rule. On the one hand, states with 

SIPs that automatically update to apply PSD to pollutants newly subject to regulation can take 

other action to assure that any limits EPA places on the application of PSD to such pollutants –

as EPA did in the Tailoring Rule – are incorporated into the SIP. In the SIP Narrowing Rule, 

the flaw that needed correction was the combination of the unrestrained applicability of the 

program to the newly regulated pollutant, with the failure to plan for adequate resources to 

carry out the plan, in the time provided. Some states were able to revise their SIPs in the time 

provided and others were able to interpret their SIPs to regulate GHGs at the Tailoring Rule 

thresholds. On the other hand, states that do not have PSD programs that automatically update 

to apply to pollutants newly subject to regulation may take other action to assure that their PSD 

programs address the applicability of PSD to pollutants newly subject to regulation. 

Accordingly,, there is not a “conundrum” as the commenter asserts. 

The second commenter’s commenter is general and vague. EPA has described the 

rationale for this rule in the preamble and in this document.

With respect to the third commenter, it should be reiterated that in this action, EPA is not 

articulating any requirement that PSD programs must automatically update to apply to 

pollutants newly subject to regulation.
23

5 Comments on EPA’s Approach for Correcting Its 

Erroneous Approval

5.1 Comments on CAA Section 110(k)(6) Authority

Comment:

One commenter (0231.1) supported the use of CAA section 110(k)(6) authority in this 

situation. Seven other commenters (0224.1, 0225.1, 0227.1, 0228.1, 0229.2 TCEQ, 0230.1. 

0232.1 Texas AG) asserted that the rules do not fall within EPA’s CAA section 110(k)(6) 

authority. 

The supportive commenter (0231.1) noted that section 110(k)(6) states that “[w]henever 

[EPA] determines” that its action “approving ... any plan or plan revision ... was in error,” it 

may correct that error “without requiring any further submission from the State.” 42 U.S.C.

7410(k)(6). Industrial Envt’l Ass’n v. Browner, 225 F.3d 662, 2000 WL 689518, *1 (9th Cir. 

2000) (unpub. mem. disp.) (noting that this provision, added in the 1990 CAA Amendments, 

provided an alternate mechanism for EPA to act “unilaterally to revise any aspect of a[ ] SIP 

which had been approved ‘in error’”). The commenter asserted that this mechanism is 

appropriate here, where serious flaws in Texas’s SIP have become glaringly apparent and where 

those flaws, if left uncorrected, would cause immediate harm.

The commenter (0231.1) added that because EPA has now determined that Texas’s 

program does not satisfy the “minimum criteria” required of a SIP, it must “promulgate a Federal 

implementation plan” to fill the gap, as it has done here. 42 U.S.C. 7410(c)(1)(A). The 

commenter believes that failing to meet the Act’s basic pollution control requirements is a clear 

error warranting correction and a FIP and that, in such circumstances, EPA is well justified in 

correcting its error before harm to public health or the environment can occur.

Response:

We agree with the comment that flaws in the Texas SIP have become apparent, 

necessitating our correction of the error we made in previously approving the SIP. We are

correcting the error and promulgating the FIP at this time to assure that GHG-emitting sources 

in Texas will have available a permitting authority to process their permit applications and 

thereby allow them to proceed with plans to construct or modify. 

Comment:

Five of the opposing commenters (0224.1, 0225.1, 0227.1, 0228.1, 0232.1 Texas AG)

stated that EPA’s approval of Texas’s SIP was not a clerical error or unintentional, noting that 

the SIP was approved well before EPA ever contemplated any regulation of GHG emissions and 

that EPA intended to approve the language that Texas submitted. Consequently, the commenters 

believe that EPA must use normal procedures to modify the SIP’s approval status. 
24

Four of the commenters (0224.1, 0225.1, 0227.1, 0232.1 Texas AG) believe that the 

relevant case law confirms that EPA cannot use the CAA section 110(k)(6) error-correction 

shortcut in this situation. In Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777 (3d Cir. 

1987) (Bridesburg), the Third Circuit reviewed EPA’s deletion of odor regulations from 

Pennsylvania’s federally-approved SIP. The Court rejected EPA’s arguments that its earlier 

approval of the odor regulations was a “mistake,” or alternatively, that the deletion was merely a 

“revision of EPA’s own prior action.” Id. at 789. The Court was not “persuaded by the EPA’s

reference to the revisions as ‘corrections,’” stating, “[we] are not dealing here with typographical 

errors.” Id. at 786. Furthermore, the Court held that all SIP modifications must occur through 

the designated revisions process. Id. at 789 (citing Bethlehem Steel Corp. v. EPA, 723 F.2d 

1303, 1309–10 (7th Cir. 1983)). 

Response:

We disagree with the comment that CAA section 110(k)(6) can only be used to correct 

clerical errors. As we discussed in the preamble to the final rule, the term “error” in CAA 

section 110(k)(6) is not defined and, as a result, should be given its ordinary, everyday meaning. 

Commenters’ assertions that this provision is limited to “technical” errors or “typographical 

errors” are conclusory and unsupported. It is true that EPA intended to approve the Texas PSD 

program, but that does not mean that at that time, EPA was aware of and understood the 

implications of what it now recognizes as gaps, including the failure of the SIP to address the 

applicability of the PSD program to pollutants newly subject to regulation. EPA responds to the 

comments concerning the Bridesburg case in the preamble to this rule.

Comment:

These commenters (0224.1, 0225.1, 0227.1, 0232.1 Texas AG) contended that these rules 

make precisely the same claim that was rejected in the Bridesburg case – EPA claims to be 

correcting a mistake, but it is actually justifying partial disapproval of a SIP. The commenters 

stated that, just as in Bridesburg, EPA’s approval of the current Texas SIP regulations was not an 

uncontroversial mistake or typographical error.

One of the commenters (0224.1) stated that EPA’s claim in this case is less plausible than 

the claim in Bridesburg, and that effectively EPA is claiming that when it approved the Texas 

SIP, which does not regulate GHGs, it really meant that it approved Texas’s SIP only in part, 

while disapproving of its failure to cover GHGs, not at the statutory thresholds, but only to the 

extent that sources emit GHGs that would qualify for coverage under the complex non-statutory 

formulas adopted by EPA in the GHG Tailoring Rule. 75 FR 82457. The commenter added that

EPA’s failure to specify those formulas when it approved Texas’s SIP was not a mere 

typographical error.

Response: 

As discussed in the preamble to this rule, CAA §110(k)(6) authorizes EPA to make a set 

of error corrections that are significantly broader than what the Bridesburg court sanctioned, 

and that EPA’s present action is fully justifiable as an error correction under CAA §110(k)(6). 
25

As a result, the Bridesburg case does not limit EPA’s ability to undertake the action it is taking 

in this rulemaking.

Comment:

Two other of the commenters (0227.1, 0230.1) stated that under section 110(k)(6) any 

corrections must be through the same procedures as an original action would require. One of 

these commenters (0227.1) then pointed out that section 110(l) states that any revisions to a SIP 

must be adopted by a state after reasonable notice and a public hearing. The other commenter 

(0230.1) similarly noted that the Act provides a very specific “manner” of SIP approval or 

disapproval that relies on a precise sequence of events and timetables, which EPA’s present 

action ignores.

Response:

We disagree with the comment that corrections must be made through the same 

procedures as the original approval. As discussed in the preamble, EPA disagrees with this 

reading of the phrase “in the same manner.” This phrase is not defined in section 110(k)(6). As 

a matter of Chevron step 1, or, in the alternative, Chevron step 2, the phrase refers to 

Administrative Procedure Act or, if applicable, CAA section 307(d) procedures. Thus, if the 

original action were a notice-and-comment rulemaking under the Administrative Procedure Act, 

then the error correction must follow the same procedure. EPA’s approval of the Texas SIP in 

1992 followed notice-and-comment rulemaking, and this final rule has been subject to notice and 

comment rulemaking as well. 

Comment: 

One commenter (0229.2 TCEQ) stated that Texas’s SIP is not deficient because the Act 

does not mandate that state PSD rules automatically update to cover newly regulated pollutants, 

so EPA cannot rely on section 110(k)(6) error correction authority. The commenter indicated 

that historically EPA has used section 110(k)(6) to revise its own previous action on a SIP 

submittal, but it cannot singlehandedly change what the state has submitted. The commenter 

believes that this action was precipitated by EPA’s interpretation that GHGs must be covered 

under PSD (which is under legal challenge), not by some long-standing flaw in Texas’s SIP. The 

commenter asserted that in this case, EPA intends not just to remove “non-technical” provisions 

from the approved SIP, but rather to impose its own plan to regulate GHGs in Texas without first 

allowing Texas to revise its PSD program. The commenter concluded that any SIP rule rejection 

EPA makes must provide 3 years for the state to correct the shortcoming as provided by the 2002 

NSR reform rules.

Response:

We respond to many of these comments elsewhere. With respect to the remaining 

comments, we add here the following responses: (i) EPA’s use of the §110(k)(6) error 

correction in this action is to revise EPA’s own action – that is, to revise its previous approval of 

Texas’s SIP to a partial approval and partial disapproval – and not to change what the state has 
26

submitted. (ii) This action was precipitated by Texas’s statements that it would not apply PSD to 

GHGs, that it would not cooperate with EPA’s efforts to assure the availability of a permitting 

authority in for GHG-emitting sources in Texas, and that it did not believe that the CAA requires 

the applicability of PSD to non-NAAQS pollutants, all of which illuminated the gaps in Texas’s 

PSD SIP and threatened to create adverse real-world consequences to GHG-emitting sources in 

Texas. (iii) EPA did give Texas the opportunity to revise its PSD program and Texas has made 

clear that the state does not intend to do so.

Comment:

One commenter (0232.1 Texas AG) asserted that EPA’s reading of CAA 

section 110(k)(6) contravenes its plain text, and therefore fails under Chevron step 1. The 

commenter believes that section 110(k)(6) contains four express limitations on EPA’s authority, 

which taken separately or together demonstrate that “Congress has directly spoken to the precise 

question at issue,” Chevron v. Natural Resources Def. Council, 467 U.S. 837, 842-43 (1984). 

According to the commenter, EPA cannot revise a plan to “correct” “errors” of which it was 

fully aware at the time of plan approval, and which it did not even consider to be “errors” at the 

time. Grobach v. Reno, 210 F.3d 1087, 10989 (9th Cir. 2000) (holding that agency errorcorrection power cannot supersede express denaturalization procedures). A summary of the 

commenter’s analysis of the language of section 110(k)(6) follows:

Comment:

• The EPA incorrectly construed the phrase “was in error.” 

o Based on cited definitions of “error” and “correction,” the commenter concluded 

that section 110(k)(6) empowers EPA only to make a correction to an inadvertent 

error, such as a typographical or technical error. In support of this conclusion, the 

commenter cited Bridesburg, 836 F2d at 786; Dart Industries, Inc. v. Banner, 636 

F.2d 684, 688 (D.C. Cir. 1980); In Re Creative Technologies Corp., 83 F.3d 1394, 

1397 (Fed. Cir. 1996); In re Serenkin, 479 F.3d 1359, 1362 (Fed. Cir 2007); and 

Eastern Investment Corp v. United States, 49 F.3d 651, 657 (10th Cir. 1995).

o The commenter asserted that section 110(k)(6) authorizes EPA to act only where 

the original action “was in error,” not where the action “is in error” – Congress’ 

use of the past tense limits EPA’s authority to actions that were incorrect when 

they were made, not to actions of which EPA later disapproved.

o The commenter believes that EPA’s interpretation would give the term “error” so 

broad a meaning as to authorize any change in policy, depriving the term “error” 

of any limiting effect and rendering Congress’ comprehensive scheme in CAA 

section 110 for SIP promulgation and revision nugatory. The commenter noted 

that this is contrary to the well-recognized rule that statutes must be construed “so 

as to avoid rendering superfluous” any statutory language and cited Astoria 

Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991); Sprietsma 

v. Mercury Marine, 537 U.S. 51, 63 (2003); and GTE New Media Services Inc. v. 

BellSouth Corp., 199 F.3d 1343, 1351 (D.C. Cir. 2000). The commenter also 

cited four cases where the courts were alleged to have reversed statutory 
27

interpretations made by EPA to “escape congressionally imposed limitations on 

its powers.”

Response:

We disagree with the comment that EPA has incorrectly interpreted the phrase “was in 

error.” As discussed in the preamble, the natural meaning of the term “error” in the error 

correction provision is broad and as a result, the provision applies by its terms to any mistake. 

The explicit legislative history of the provision – what Congress said in the various reports and 

statements accompanying its passages - is sparse and does not illuminate its meaning. Because 

there is nothing in the statute or legislative history that suggests that Congress intended a 

meaning narrower than the natural meaning of the term, the natural meaning of the term 

controls. Commenters’ assertions that this provision is limited to “technical” errors or 

“typographical errors” are conclusory and unsupported. Of the cases cited by the commenter, 

the Bridesburg case is the closest on point and EPA discusses that case in the preamble to this 

rulemaking. For the reasons discussed elsewhere in this document and in the preamble, Texas’s 

SIP was flawed and as a result, EPA’s action in approving that flawed SIP was in error. 

EPA agrees that the error correction provision applies only where EPA’s initial action 

approving a SIP was in error. However, the basis for EPA’s action in this rulemaking is that 

EPA’s approval of the Texas PSD SIP revision was in error because at the time that the State 

submitted and EPA approved the revision, the PSD program failed to address the applicability of 

PSD to pollutants newly subject to regulation. This conclusion is based on the record as it 

existed at the time of the 1992 action. As a result, at the time of the 1992 action, had EPA 

focused on this flaw in the PSD program, EPA would not have fully approved the program, but 

rather would have approved it in part (to the extent that it applied to certain pollutants) and 

disapproved it in part (to the extent the program did not address its applicability to pollutants 

newly subject to regulation). Recent statements and actions by Texas, described elsewhere, have 

illuminated this flaw and therefore EPA’s error in fully approving the program in 1992. At the 

present time, now that EPA is focused on the flaw in the program, EPA has the discretion to 

proceed with an error correction action and convert the full approval to a partial approval and 

partial disapproval. The vehicle for EPA to exercise this discretion is to make a 

“determin[ation]” under CAA §110(k)(6) that EPA’s previous action was in error. Importantly, 

Texas’s recent statements and actions have done more than simply illuminate the flaw in the 

program, they have also jeopardized the ability of Texas’s GHG-emitting sources to have 

available a permitting authority to process their PSD permit applications, and to proceed with 

their plans to construct or modify. Accordingly, Texas’s recent statements and actions have 

provided a basis for EPA to exercise its discretion to make the determination that its previous 

action was in error. Even so, to reiterate, that determination is dependent on the record as it 

existed at the time of EPA’s 1992 full approval.

In addition, EPA has two alternative grounds for this action, which arise if, at the time of 

EPA’s 1992 approval, Texas’s PSD SIP can be said to have met CAA requirements by 

addressing pollutants newly subject to regulation so that EPA can be said to have approved 

Texas’s SIP on that basis. First, Texas’s recent statements – which assert that Texas will not 

apply its PSD program to GHGs – undermine that basis for EPA’s approval. Under these 

alternative grounds, EPA’s action in approving Texas’s SIP was in error because it depended on 
28

a basis that the State subsequently undermined. Although Texas’s statements occurred after 

EPA’s action, they should be treated as being associated with that action, and as a result, EPA’s 

initial basis for its action should be treated as invalid. Viewed in this manner, EPA’s action 

approving the SIP was in error. Second, Texas failed to provide assurances of adequate 

authority to carry out the SIP because, as explained elsewhere in this response to comments, at 

the time EPA approved the SIP, the Texas SIP was prohibited by state law from automatically 

updating to including pollutants newly subject to regulation and Texas did not provide 

assurances of other adequate authority. 

This rulemaking action is simply the correction of an error, as authorized under CAA 

§110(k)(6). Contrary to some comments, this action is not based on a policy shift in EPA’s 

administration of the PSD program. Nor does this action upset federalism concerns or 

constitute a claim of authority to unilaterally revise any action on any SIP submittal. EPA does 

not read section 110(k)(6) to provide unlimited discretion to act on SIP submissions, only to 

provide authority to make error corrections.

Comment:

• The EPA incorrectly construed the phrase “in the same manner.” The commenter 

believes that EPA has failed to act “in the same manner” both procedurally and 

substantively.

o The commenter stated that courts have consistently interpreted the term “in the 

same manner” to incorporate substantive, in addition to procedural, requirements, 

citing United States v. Navistar Int’l. Transp. Corp., 152 F.3d 702, 714 (7th Cir. 

1998); United States v. Township of Brighton, 153 F.3d 307, 324 (6th Cir. 1998); 

Andes v. Versant Corp., 878 F.2d 147, 149 (4th Cir. 1989); and Oveissi v. Islamic 

Republic of Iran, 573 F.3d 835, 841 (D.C. Cir. 2009). The commenter believes 

EPA has erred in applying different standards to Texas’s SIP today than those that 

were in place in 1992, and proposing to make a decision on a different record than 

the one supporting its action in 1992.

o The commenter also stated that the phrase “in the same manner” compels EPA to

act “in the same manner” that it did previously – in other words, to take the same 

action. The commenter asserted that converting an approval to a disapproval fails 

this test, and added that if the deficiency in a SIP is substantive in nature and 

renders the SIP unapprovable, EPA may not act in the summary fashion 

authorized by section 110(k)(6) but must instead call for a plan revision. The 

commenter pointed out that in the examples given by EPA of its past use of 

section 110(k)(6), it did not change an action approving a SIP into an action 

disapproving that SIP (or vice versa).

Response: 

We respond to many of these comments elsewhere. We add here that we disagree with 

the commenter’s assertion that the phrase “in the same manner” requires the agency to take the 

same action. We see no basis for reading this phrase more narrowly to limit an error correction 
29

of an approval to be only another approval, and not a disapproval. That strained reading is 

inconsistent with the purpose of the section, which is to allow for the correction of errors, a 

process that may well require reversing the initial action if found to be in error. Although EPA 

sees no basis for the substantive requirements that the commenter reads into the phrase, the 

record for the present action – which includes the relevant documents in the record for the 1992 

approval – makes clear that EPA’s 1992 action was in error, and nothing in CAA section 

110(k)(6) limits the record for an error correction more narrowly.

Comment:

• The EPA ignored the phrase “revise such action.” The commenter believes that 

section 110(k)(6) affords EPA no discretion to “revise” an approval action into a 

disapproval but instead limits the Agency to revising the contents of “such action” 

that it previously undertook. Citing a dictionary definition of “revise,” the 

commenter asserted that EPA does not “revise” an action by substituting another 

action for it; rather, EPA must take the same type of action, a reading reinforced by 

the requirement that the Agency act “in the same manner as the [original action].” 

The EPA may not “reconsider” or “replace” a SIP-related action. The commenter 

indicated that in this way, section 110(k)(6) is not a mechanism for revisiting a 

decision but for correcting mistakes in an action – using this section to reverse an 

approval offends both the participation requirements and the principles of the Act’s 

SIP provisions.

Response:

We disagree with this comment. Section 110(k)(6) authorizes EPA to “revise” the action 

it determines to be in error “as appropriate.” The term “revise” is not defined in section 

110(k)(6). Its natural meaning is to “change” or “modify.” Webster’s II New Riverside 

University Dictionary (1988) at 1005. As a matter of Chevron step 1, or, in the alternative, 

Chevron step 2, the term is broad enough to encompass changing or modifying an approval to a 

disapproval. This is particularly so in light of the authorization under section 110(k)(6) to revise 

the action in error “as appropriate.” Used in this context, the term “appropriate” indicates 

EPA is under a constraint of reasonableness in revising the action, but is not under the other 

constraints that commenter suggests. Thus, if EPA has a basis for revising an approval to a 

disapproval, then EPA may do so on grounds that this type of revision is “appropriate.” 

Comment:

• The EPA ignored the phrase “as appropriate.” According to the commenter, like the 

“as necessary” language that Congress inserted into CAA section 110(k)(5) as part of 

the 1990 amendments, this language serves to “keep EPA within bounds.” Virginia v. 

EPA, 108 F.3d 1397, 1410 (1997). Specifically, EPA may revise an earlier action

only “as appropriate” to correct its error in undertaking the earlier action, and not to 

effect a change in policy. The commenter added the following reasons (which are 

discussed further in other sections of this document) that EPA’s actions are not 

appropriate:
30

o It is not “appropriate” to act on an emergency basis without notice-and-comment 

rulemaking to address a purported deficiency that the Agency has known about 

for nearly two decades. 

o It is not “appropriate” to single out Texas’s SIP submission for disapproval based 

on a purported deficiency that is present in other states’ SIPs. 

o It is not “appropriate” to exercise section 110(k)(6)’s error correction provisions 

where EPA is simultaneously exercising its powers under section 110(k)(5), 

which affords states procedural protections EPA has refused to afford under 

section 110(k)(6). 

o It is not “appropriate” to exercise section 110(k)(6)’s error correction provisions 

to change a SIP approval into a disapproval where the Agency has made no 

finding that the purported SIP submission deficiency will directly harm public 

health or welfare.

Response:

We disagree with this comment. The term “as appropriate” should be viewed as 

highlighting the significant discretion that EPA has under the error correction provision to 

“revise” the action it found to be in error, as discussed earlier in this preamble. EPA responds 

elsewhere in this rulemaking preamble to the specific reasons the commenter gives as to why the 

commenter believes EPA’s action was not appropriate. It should be noted here that the various 

considerations the commenter cites would suggest the commenter’s agreement that the term 

“appropriate” allows EPA to consider a wide range of factors, that is, to exercise broad 

discretion. 

Comment:

One commenter (0225.1) stated that EPA is attempting to achieve a major policy shift 

through a section 110(k)(6) process that is intended for the correction of errors. The commenter 

indicated that EPA is attempting to achieve the illusion of compliance with Bridesburg by 

asserting that the Texas SIP was approved contrary to then-existing EPA policy. 75 FR 82449.

The commenter asserted that even accepting this allegation as true, EPA’s statement that “it is 

clear from the record that both Texas and EPA were well aware that the Texas PSD rules’ 

[incorporation by reference] of EPA PSD regulatory requirements did not automatically update,” 

id., shows that there was no inadvertent error in EPA’s approval. Rather, the commenter 

concluded, EPA is plainly pursuing a major policy change, which cannot be made in the guise of 

error correction.

The commenter (0225.1) noted that other states, including Arizona, Arkansas, 

Connecticut, and Florida, also have SIPs that do not automatically apply PSD requirements to all 

pollutants newly-subject to PSD requirements. The commenter believes that if EPA were truly 

concerned with whether a SIP applies to newly-regulated pollutants and whether a state has 

adequate legal authority to regulate newly-regulated pollutants under its SIP, then EPA would 

also disapprove of these SIPs under the section 110(k)(6) error correction process. The 
31

commenter asserted that EPA’s failure to do so only underscores that EPA is attempting to 

implement policy through section 110(k)(6) error correction.

Finally, the commenter (0225.1) alleged that another EPA rule published on 

December 30, 2010 “withdraw[s] the SIPs” for 24 other states on grounds that their application 

of GHG permitting requirements to sources beneath the Tailoring Rule thresholds was an 

“error” under section 110(k)(6). 75 FR 82536, 82538. According to the commenter, EPA 

claimed that these states failed to provide necessary assurances that they have adequate funding 

and personnel to implement their SIPs. 75 FR 82539. The commenter believes that this makes it

apparent that EPA views the section 110(k)(6) error correction process as a potentially boundless 

grant of authority to achieve policy shifts unilaterally. The commenter asserted that such a 

liberal reading of “error correction” is directly contrary to the Act’s cooperative federalism 

scheme and the text of section 110(k)(6).

Response:

We disagree with the comments that EPA is attempting to make a major, unilateral policy 

shift through section 110(k) error correction. For the reasons discussed elsewhere in this 

document and in the preamble, Texas’s SIP was flawed and as a result, EPA’s action in 

approving that flawed SIP was in error. 

As a result, this rulemaking action is simply the correction of an error, as authorized 

under CAA §110(k)(6). Contrary to the comments, this action is not based on a policy shift in 

EPA’s administration of the PSD program. We do not read section 110(k)(6) to provide 

unlimited discretion to act on SIP submissions, only to provide authority to make error 

corrections.

We disagree with the comment that not correcting the SIPs of other states that, like 

Texas, do not update automatically apply PSD requirements to all pollutants newly subject to 

regulation, is an indication that EPA is attempting to implement policy through an error 

correction. Our reasons for taking this action with regard to Texas, and not for other states, is 

discussed elsewhere in this document and in the preamble to the final rule

Comment:

Three commenters (0225.1, 0228.1, 0232.1 Texas AG) disagreed with EPA’s 

interpretation of Congress’ intent in adding section 110(k)(6) to the Act in the 1990 CAA 

Amendments, as discussed at 75 FR 82435. In that discussion, we stated that “Congress passed 

CAA section 110(k)(6) apparently for the purposes of overturning the Bridesburg decision” and 

that the timing of the enactment shortly after that decision suggests a broad interpretation.

One of the commenters (0232.1 Texas AG) stated that EPA has offered no support for 

this assertion, and added that EPA has never asserted in the Federal Register that it had such 

authority under section 110(k)(6) in the intervening 20 years. The commenter offered that 

Representative Henry Waxman, the principal architect of the Clean Air Act Amendments of

1990, described the subsection as being highly circumscribed:
32

[S]ection 110(k)(6) explicitly authorizes EPA on its own motion to correct any 

errors it may make in taking any action, such as issuing any designation 

or classification, or approving or disapproving any plan. This section is 

included to enable EPA to deal promptly with clerical errors or technical errors.

It is not intended to offer a route for EPA to reevaluate its policy judgments.

Hon. Henry Waxman et al., Roadmap to Title I of the Clean Air Act Amendments of 1990: 

Bringing Blue Skies Back To America’s Cities, 21 Envt’l L. 1843, 1925 (1991) (emphasis added) 

(footnote omitted). The commenter took from this that Representative Waxman’s commentary

and the language of CAA section 110(k)(6) that parallels that in the Bridesburg decision 

unambiguously demonstrate that Congress intended to codify Bridesburg, not to supersede it.

One of the commenters (0228.1) stated that EPA’s argument is nothing more than 

speculation; the Agency offers no evidence that Congress intended to overturn Bridesburg. The 

commenter asserted that Congress knows well how to overrule judicial precedent and, when 

doing so through CAA amendments, has explained its intent to do so. As examples, the 

commenter noted that the Senate committee reporting the 1990 CAA Amendments approved an 

amendment that, it explained, “overrules West Penn Power Co. v. EPA, 860 2d 581 (3d Cir. 

1988) . . . .” 5 Environment and Natural Resources Policy Division, Library of Congress, A 

Legislative History of the Clean Air Act Amendments of 1990 at 8712 (1998): Report of Senate 

Committee on Environment and Public Works; see also id. at 8715 (“[t]his amendment would 

overrule the holding of State of New York v. Thomas, 802 F.2d 1443 (D.C. Cir. 1986”); id. at 

9908 (“[i]t is evident . . . that the effect of these provisions would be to overrule the recent en 

banc decision in Vinyl Chloride”). The commenter believes that if Congress in 1990 had 

intended to overturn Bridesburg with its enactment of section 110(k)(6), it would have said so, as 

it did with respect to different CAA amendments that overturned other court decisions. The 

commenter also stated that EPA offered no evidence of congressional intent to do so.

Another commenter (0225.1) indicated that EPA has declined to explain why Congress 

would “apparently” take an action that gives EPA the ability to undermine the CAA 

section 110(k)(5) SIP revision scheme that Congress declined to delete when adding 

section 110(k)(6). Furthermore, according to the commenter, though Congress did add express 

authority for error correction in CAA section 110(k)(6), EPA has failed to adequately explain 

why Congress did not address the substance of the Third Circuit’s holding – that “error 

correction” be limited to inadvertent mistakes such as typographical errors and not encompass 

major policy shifts.

Response:

We disagree with these comments. For the reasons noted in the preamble and elsewhere 

in this document, the natural meaning of the term “error” in the error correction provision is 

broad and as a result, the provision applies by its terms to any mistake. The explicit legislative 

history of the provision – what Congress said in the various reports and statements 

accompanying its passages - is sparse and does not illuminate its meaning. The statements by 

Congressman Waxman are the statements of a single legislator after the passage of the 
33

legislation, and should not be considered to be persuasive legislative history. We note that 

during the enactment of the 1990 Clean Air Act amendments, Mr. Waxman and Mr. Dingell 

stated that statements by individual legislators should not be considered to be persuasive 

legislative history. Because there is nothing in the statute or legislative history that suggests that 

Congress intended a meaning narrower than the natural meaning of the term, the natural 

meaning of the term controls. Commenters’ assertions that this provision is limited to 

“technical” errors or “typographical errors” are conclusory and unsupported. We discuss in 

the preamble for this rule our views on the Bridesburg case and why §110(k)(6) should be read 

to expand the types of error that Congress authorized EPA to correct beyond what Bridesburg

authorized.

Comment:

Two commenters (0228.1, 0232.1 Texas AG) disputed EPA’s statement that it has relied 

on section 110(k)(6) in the past to “correct errors of a non-technical nature.” 75 FR 82435. 

According to one of the commenters (0228.1), the examples EPA cited to support the contention 

that it has used section 110(k)(6) to make substantive SIP changes in fact all removed

inadvertently included or retained provisions rather than imposing new obligations. In addition,

the commenter stated that it does not appear that any of the provisions that were deleted from 

SIPs in these proceedings was ever enforced before it was removed, lending further weight to the 

conclusion that each was a true correction necessary to fix earlier clerical mistakes. The second 

commenter (0232.1 Texas AG) stated that none of the actions that EPA cited as examples present 

a substantive conflict between EPA’s interpretation of the Act and the content of an approved 

SIP, nor do any address an action of significance. 

As an example, one of the commenters (0228.1) noted that in “Approval and 

Promulgation of Implementation Plans; Kentucky: Approval of Revisions to the State 

Implementation Plan,” EPA, at Kentucky’s request, removed the “potentially hazardous matter 

or toxic substances rule” from the state’s implementation plan “because the rule is not related to 

the attainment and maintenance of the national ambient air quality standards” and therefore was 

“erroneously incorporated” into the SIP. 75 FR 2440-41, January 15, 2010. According to the 

commenter, other historical examples of EPA’s use of section 110(k)(6) are similar: 

uncontroversial edits to EPA’s approval of a SIP to remove the federal enforceability of 

regulatory requirements that had been included or retained inadvertently. In all of these cases, 

the commenter added, the changes were made at the state’s request.

The same commenter (0228.1) drew a contrast with prior uses of section 110(k)(6), 

stating that in this proposed rule EPA would impose substantial new (rather than delete existing) 

requirements on the state, and would do so against rather than in fulfillment of the state’s wishes. 

The commenter alleged that in doing so, EPA would purport to “correct” an intentional and fully 

knowing “error” the Agency made nearly two decades ago (rather than an inadvertent oversight). 

The commenter asserted that this is an unprecedented and wholly unsupported application of 

section 110(k)(6).

The second commenter (0232.1 Texas AG) noted that in none of EPA’s examples did the 

Agency convert a SIP approval into a disapproval. This commenter stated that EPA’s actions 
34

with regard to Kentucky and other states may not be consistent with the Third Circuit’s decision 

in Bridesburg, but in none of these actions did EPA suggest that Bridesburg did not control. The 

commenter stressed that to the extent that EPA’s prior actions constituted substantive changes

made outside the CAA section 110(a) and 110(l) SIP revision process, they would form a pattern 

of unlawful conduct, not a justification for action:

[P]revious statutory violations cannot excuse the one now before the court. “[W]e

do not see how merely applying an unreasonable statutory interpretation for 

several years can transform it into a reasonable interpretation.”

New Jersey v. EPA, 517 F.3d 574, 583 (D.C. Cir. 2008) (quoting F.J. Vollmer Co. v. Magaw, 

102 F.3d 591, 598 (D.C.Cir.1996)). The commenter asserted that this is particularly true with 

regard to section 110(k)(6), a power that has in the past always been exercised by EPA in 

conjunction with the states, which apparently wished to evade the Act’s SIP revision procedures.

Response:

We disagree with these comments on the historical use of section 110(k)(6). EPA’s 

previous use of the error correction provision makes clear that EPA has corrected errors many 

years after they occurred, and that EPA has corrected errors that are broader than merely 

technical or typographical errors. In addition to the examples EPA has cited elsewhere, EPA 

notes that in some error correction actions, it has revised the boundaries of nonattainment areas. 

“Air Quality Designations and Classifications for the 8-Hour Ozone National Ambient Air 

Quality Standards; Early Action Compact Areas With Deferred Effective Dates; Final Rule,” 71 

Fed. Reg. 60429 (Oct. 13, 2006); “Phoenix 1-Hour Ozone Boundary Correction, Direct Final 

Rule, 70 Fed. Reg. 68339 (November 10, 2005); “Miami (Arizona) SO2 Boundary Correction:

Direct Final Rule,” 72 Fed. Reg. 3061(January 24, 2007). Moreover, EPA’s most recent use of 

the error correction provision was in the PSD Narrowing Rule, in which EPA again corrected 

errors in SIP approvals that occurred many years ago, and which relied on as broad an 

application of section 110(k)(6) as in the present rulemaking. Moreover, in the GHG PSD 

Narrowing Rule, EPA relied on the error correction mechanism without having first been asked 

to do so by some of the affected states, and, in fact, in the face of negative comments by some of 

the affected states. Even so, the PSD Narrowing Rule was not challenged in Court by any party. 

In any event, for the reasons noted elsewhere in this document and in the preamble, 

EPA’s action in this rulemaking qualifies as an error correction within the meaning of CAA 

section 110(k)(6). Whether the affected state – or any other party - agrees or disagrees that the 

SIP that is the subject of the error correction is flawed, and, as related matter, whether the 

action is controversial, are not criteria under CAA section 110(k)(6).

Comment:

One commenter (0228.1) disputed EPA’s alleged claim that case law supports the 

existence of Agency discretion “whether and when to make the specified finding” of error in the 

previous decision that EPA seeks to correct. 75 FR 82435. The commenter asserted that the 

cases EPA cited are inapposite. According to the commenter, New York Public Interest 
35

Research Group v. Whitman, 321 F.3d 316 (2d Cir. 2003), addresses EPA’s authority in the 

context of the Title V operating permit program, specifically under CAA section 502, and is not 

relevant to the PSD SIP context under Title I of the CAA at issue here. The other case, Her 

Majesty The Queen In Right of Ontario v. EPA, 912 F.2d 1525 (D.C. Cir. 1990), addresses 

EPA’s timing discretion in acting under section 115 of the Act (concerning international air 

pollution) and construes the word “whenever” in section 115(a) to clarify when EPA is required 

or authorized to make a finding under that provision. The commenter expressed the opinion that 

neither of these cases remotely relates to section 110(k)(6) and cannot be relied on as 

justification for EPA’s interpretation of authority to act under that error correction provision.

Response:

The cases are relevant because they interpret the same term that is used in CAA 

§110(k)(6). Their interpretation of the term, as used in Title V and section 115, as providing 

EPA with significant discretion supports EPA’s view that the same term should be interpreted in 

CA §110(k)(6) to provide EPA with significant discretion. 

Comment:

Two commenters (0227.1, 0232.1 Texas AG) believe that EPA’s reading of CAA 

section 110(k)(6) is contrary to the structure of the Act. One of the commenters (0232.1 Texas 

AG) added that EPA’s reliance on section 110(k)(6)’s error correction provisions to revise its full 

approval of Texas’s PSD SIP constitutes an unlimited revisory power that contradicts the Act’s 

text and structure. According to the commenter, EPA is attempting to circumvent the procedural 

requirements and protections that the Act provides for states in the SIP process, thereby 

defeating Congress’ intent in crafting a process respectful of the states’ role in the control of air 

pollution and public engagement in environmental regulation.

Response:

As discussed elsewhere in this document, we disagree with the comment that EPA is 

attempting to circumvent the CAA SIP approval process or that we believe that section 110(k)(6) 

provides unlimited revisory power. EPA’s revisory power is limited to revising the specific 

action it took when it approved the Texas SIP PSD program. In light of the gap in the Texas 

PSD SIP, EPA, had it focused on that gap at the time it acted on the PSD program, could have 

disapproved the PSD program to the extent the program did not address its applicability to 

pollutants newly subject to regulation. By exercising its discretion under CAA §110(k)(6) at this 

time, EPA is taking the same action – a partial approval and partial disapproval -- it could have 

taken earlier.

Comment:

The commenter (0232.1 Texas AG) noted that CAA section 110(i) prohibits amendments 

to SIPs with respect to stationary sources except through SIP revisions adopted by states under 

section 110(a) or FIPs promulgated by EPA under section 110(c), and pointed out that 

section 110(i) specifically mentions “plan revisions” and “other action modifying any 
36

requirement of an applicable implementation plan.” Section 110(a) of the Act and the legislative 

rules that implement it, such as 40 CFR 51.166, provide a detailed process for states to 

incorporate new requirements into their SIPs. The commenter believes that the specific 

provisions of sections 110(a) and (i) control over EPA’s (allegedly) erroneous interpretation of 

section 110(k)(6) and therefore EPA must allow states 3 years to modify their SIPs to 

incorporate GHGs (if EPA has authority to regulate GHGs under the Act, which the commenter 

has challenged).

Response:

We disagree with this comment. CAA §110(k)(6) governs the action EPA is taking with 

this rulemaking, and by its terms, CAA §110(k)(6) is independent of CAA §§110(a) and (i). 

Nothing in those provisions limits EPA’s authority under CAA §110(k)(6). Further, even if CAA 

§110(i) applied, EPA’s action under this rulemaking is a FIP under CAA §110(c). In any event, 

we disagree with the comment that states must be given three years to modify their SIPs to 

incorporate GHGs. This issue was addressed in detail in the preamble to the final PSD GHG 

SIP Call (75 FR 77698) and in the RTC for that rulemaking (EPA-HQ-OAR-2010-0107-0130). 

Comment:

The commenter (0232.1 Texas AG) believes that EPA’s approach leads to absurd results: 

if EPA promulgates a NAAQS for a new pollutant or revises a NAAQS, the Agency must follow 

the section 110 SIP revision process, but if a pollutant for which there is no NAAQS becomes 

subject to regulation for peripheral reasons EPA arrogates the authority to immediately impose 

requirements on the states. The commenter asserted that this is incongruous with Congress’ 

intent.

Response:

We disagree with the comment that EPA’s approach leads to absurd results that are 

incongruous with Congress’ intent. As discussed earlier, it is section 165(a) of the CAA that

requires a source to obtain a permit before construction or modification when a pollutant 

becomes newly subject to regulation. This is the case whether EPA adds a new NAAQS 

pollutant, or, as is the case here, a non-NAAQS pollutant. 

Comment:

The commenter (0232.1 Texas AG) also asserted that EPA’s interpretation of 

section 110(k)(6) is incompatible with section 110(k)(5), and disagreed with EPA’s discussion of 

the relationship between the two sections at 75 FR 92454-55. The commenter asserted that 

EPA’s interpretation of section 110(k)(6) would render section 110(k)(5) mere surplusage 

because EPA would be able to declare any earlier approvals of substantially inadequate SIPs “in 

error” and disapprove the SIP under section 110(k)(6) rather than exercising its power under 

section 110(k)(5).
37

Response:

EPA explained the relationship between CAA §§110(k)(6) and 110(k)(5) in the preamble 

to this rulemaking. 

Comment:

In summarizing section 110(k)(5), the commenter (0232.1 Texas AG) indicated that it is 

expressly limited in order to prevent circumvention of the Act’s default SIP process: (1) the 

inadequacy must be “substantial,” and (2) EPA may only “subject the State to the requirements 

of [the Act] to which the State was subject when it developed and submitted the plan for which 

such finding was made.” The commenter asserted that Congress would not have provided these 

significant procedural protections for states where EPA finds that a SIP is “substantially 

inadequate,” but nonetheless allow EPA to “revise” or “correct” a SIP approval into a 

disapproval for any “error,” no matter how significant.

Response:

CAA §§110(k)(6) and 110(k)(5) are different provisions and the commenter offers no 

reason why they should be treated as having a comparable scope. CAA §110(k)(6) provides 

EPA with the discretion to correct a previous action that was in error and, in doing so, place 

EPA and the State in the same situation that they would have been in had EPA taken the correct 

action in the first place. Nothing in that scheme undermines the Act’s SIP process.

Comment:

The commenter (0232.1 Texas AG) went on to say that EPA’s proposed reading of 

section 110(k)(6) would essentially give it unlimited discretion to act on states’ SIP submissions, 

which is incompatible with the highly-circumscribed process for SIP submission and approval 

set out in section 110(k). After describing the requirements of sections 110(k)(1)(B), 110(k)(2), 

110(k)(3), and 110(k)(5), the commenter stated that it is not reasonable to interpret 

section 110(k)(6) to allow EPA to reverse its approval of a SIP submission after 18 years, where 

Congress plainly required that the Agency make a binding decision within 18 months. 

Bridesburg, 836 F.2d at 786 (holding that an action revising a SIP outside of the statutory time 

limit was not an error-correction action).

Response:

CAA §110(k)(6) includes its own timing mechanism through its provision authorizing 

EPA to take corrective action “[w]henever the Administrator determines that” the previous 

action was in error. Therefore, no 18-month limitation applies and any contrary statements in 

the Bridesburg case, as commenter reads that case, which applied the provisions of the CAA 

prior to the enactment of CAA §110(k)(6), indicate that Congress designed CAA §110(k)(6) to 

apply more broadly than the Bridesburg court’s application of error-correction authority under 

the pre-existing Clean Air Act. 
38

Comment:

The commenter (0232.1 Texas AG) concluded that the unambiguous text and structure of 

CAA section 110 allow EPA only to correct minor errors by exercising its powers under 

section 110(k)(6), which do not require any additional submission or input from the states. The 

commenter believes that any broader construction of this power would intrude, in whole or in 

large part, on section 110’s comprehensive scheme for SIP revisions and FIP impositions.

Response:

CAA §110(k)(6) simply allows EPA, by correcting a previous action that was in error, to 

place itself and the state in the same position that they would have been in had EPA acted 

correctly in the first place. By its terms, CAA §110(k)(6) provides the process for undertaking 

that corrective action, that is, EPA may take the corrective action “in the same manner” as the 

previous action, and without any further submittal from the state. Thus, Congress established 

CAA §110(k)(6) as part of what the commenter describes as section 110’s comprehensive 

scheme for SIP revisions and FIP imposition, and Congress included within §110(k)(6) the 

process for taking the corrective action authorized under that provision,, and as a result, that 

process, as EPA has followed it here, cannot be said to intrude on section 110’s scheme for SIP 

revisions and FIP impositions. 

Comment:

Three commenters (0224.1, 0225.1, 0230.1) believe that it is inconsistent with the intent 

of the Act to use both the section 110(k)(5) and section 110(k)(6) mechanisms for SIP revisions 

in Texas at the same time. Another commenter (0231.1) lauded EPA for using both mechanisms.

Two of the commenters (0224.1, 0225.1) asserted that the rules subvert the SIP revision 

process by depriving Texas of the opportunity to submit revisions to its SIP to avoid a FIP. The 

commenters noted that these rules come less than 2 weeks after EPA provided Texas a deadline 

of December 1, 2011 to submit revisions to its SIP. According to the commenters, the 

section 110(k)(5) SIP call process is not intended to be completed under the burden of a FIP; 

instead, imposition of a FIP is only considered after the Administrator finds that a state has failed 

to meet a SIP call deadline, 42 U.S.C. 7410(c)(1)(A), as EPA has acknowledged, 75 FR 77700 

(“If a state for which we are finalizing a SIP call in this action does not submit its corrective SIP 

revision by the deadline, EPA intends to immediately issue to the state a finding of failure to 

submit a required SIP revision and also immediately promulgate a [FIP] for the state, under CAA 

section 110(c)(1)(A).”). The commenters stated that EPA’s contrary action undercuts the 

cooperative federalism principles that underlie the Act. (Another commenter (0229.2 TCEQ) 

similarly indicated that under section 110(c) of the Act, EPA cannot issue a FIP for Texas until 

the December 1, 2011 deadline established in the SIP Call has passed, although this commenter 

did not discuss the use of sections 110(k)(5) and 110(k)(6) at the same time).
39

Response:

EPA discusses the relationship of CAA §§110(k)(6) and 110(k)(5) in the preamble to this 

rulemaking, including the relationship of the associated FIPs. EPA’s action here is fully 

authorized by CAA §110(k)(6), as EPA interprets it, and, as discussed in the preamble, that 

interpretation does not undermine CAA §110(k)(5). Therefore, there is no basis for concluding 

that EPA’s interpretation and application of CAA §110(k)(6) undermines the principles of 

cooperative federalism. We add here that both CAA §§110(k)(6) and 110(k)(5) authorize the 

exercise of discretion by EPA and that it is the unique circumstances of the present case that has

led EPA to apply both the CAA §110(k)(5) SIP call requirements and the CAA §110(k)(6) error 

correction process at the same time. Most importantly, Texas’s unwillingness to cooperate with 

EPA through the SIP Call process to facilitate the timely implementation of a permitting 

authority in Texas led EPA to invoke the error-correction process. We further add that in this 

case, it is incongruous to consider the FIP promulgated under the error-correction process as 

burdening the SIP call process because Texas has clearly indicated that it does not intend to 

adopt a SIP revision as required under the SIP Call, and, to this point, Texas has not advised us 

that it has taken any steps to adopt such a SIP revision.

Comment:

One of the commenters (0230.1) asserted that the proposed error correction under 

section 110(k)(6) short-circuits the ongoing process of the SIP Call under section 110(k)(5) and 

renders the Act’s entire statutory scheme for SIP revisions under sections 110(a)(1) and 

110(k)(5) superfluous. According to the commenter, EPA’s interpretation of section 110(k)(6) is

contrary to the “cardinal principle of statutory construction,” that “[i]t is [a court’s] duty to give 

effect, if possible, to every clause and word of a statute.’” Duncan v. Walker, 533 U.S. 167, 174 

(2001). “[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no 

clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 

U.S. 19, 31 (2001).

Response:

We discuss in the preamble the relationship between CAA §§110(k)6) and 110(k)(5) and 

the circumstances under which each applies, and why our interpretation of 110(k)(6) does not 

render superfluous 110(k)(5). 

Comment:

This same commenter (0230.1) stated that EPA attempted to avoid this result by 

suggesting that EPA would have authority to issue a SIP call under section 110(k)(5) but not to 

promulgate an error-correction rule under section 110(k)(6) if the SIP “currently has a substantial 

inadequacy but was not flawed at the time of its submittal and approval.” 75 FR 82455, n. 84. 

However, the commenter believes that this set of circumstances is precisely what confronts EPA 

now – i.e., that despite EPA’s “revisionist history” in concluding that Texas’s SIP was 

inadequate at the time it was approved some two decades ago, any inadequacy in Texas’s SIP 
40

results from EPA's actions in the last year bringing GHGs into the Act. The commenter added 

that if EPA has rejected the section 166 mechanism, the sequence of steps under 

section 110(k)(5) is a more natural mechanism under the circumstances than EPA’s “awkward 

reading” of its authority under section 110(k)(6).

Response:

In this action, EPA is appropriately applying the CAA §110(k)(6) process, for the reasons 

discussed elsewhere.

Comment:

The commenter (0230.1) alleged that EPA justified its “expansive reading” of the term 

“error” in section 110(k)(6) by the absence of any express cross-reference to section 110(k)(5) or 

any explicit limitation constraining its use. However, according to the commenter, the Supreme 

Court has explained that individual statutory provisions must be interpreted in their context and 

in light of the statute as a whole. Smith v. United States, 508 U.S. 223, 233 (1993) (“A provision 

that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme 

... because only one of the permissible meanings produces a substantive effect that is compatible 

with the rest of the law.”). The commenter asserted that EPA broadly construed “error” in 

section 110(k)(6) to include even the circumstance where a subsequent event renders inadequate 

a previously-adequate SIP (or where subsequent events “confirm” EPA's post hoc views about 

whether an original adequacy determination was “in error”), but such a case more naturally falls 

under the rubric of a revision under section 110(k)(5) following the Administrator’s subsequent 

finding that the implementation plan “is substantially inadequate to attain or maintain” the 

ambient air quality standards or “to otherwise comply with any requirement of [the Act].” The 

commenter believes that this division of authority comports with section 110(k)(6)’s use of the 

past tense: that provision is applicable only when a prior agency decision “was in error.”

Response:

We respond to substantially similar comments elsewhere.

Comment:

The commenter (0230.1) asserted that EPA lacks authority to issue a FIP without first 

providing the required statutory period for revising the SIP after a SIP call under 

section 110(k)(5). The commenter stated that section 110(c)(1) requires EPA to allow the state 

time to correct the deficient SIP after a SIP call, but EPA has imposed a FIP without allowing 

Texas the opportunity to submit its plan revision by the December 1, 2011 deadline. The 

commenter added that by acting to disapprove Texas’s SIP and simultaneously promulgate a FIP, 

EPA has truncated the orderly administrative process required by the Act.
41

Response:

CAA §110(c)(1)(B) authorizes EPA to promulgate a FIP “at any time within 2 years after 

the Administrator ... disapproves a [SIP] submission in whole or in part.” In this action, EPA 

has utilized the CAA §110(k)(6) process to partially disapprove the Texas PSD SIP submission, 

and that, in turn, authorizes EPA to promulgate the FIP at this time.

Comment:

In contrast, the favorable commenter (0231.1) appreciated that EPA has combined the 

targeted error correction under section 110(k)(6) with a SIP call, thereby directly engaging Texas 

state regulators in revising their program to correct its flaws. According to the commenter, the 

SIP call process in fact “calls” for the state to carry out corrective action while also providing for 

a FIP to provide protections until the state corrects the deficiency and the SIP revision is 

approved. 42 U.S.C. 7410(c), (k)(5). Now that EPA’s error correction efforts have prevented 

these flaws from causing immediate substantial problems, the commenter believes that Texas 

and EPA should focus on SIP revisions that will ensure that Texas is finally able to take 

responsibility for controlling carbon pollution under its SIP jurisdiction.

Response:

We agree with the commenter that Texas should work to correct its SIP. EPA’s continues 

to believe that the states are in the best position to be the permitting authority for their sources 

and looks forward to working with Texas to develop and approve an appropriate SIP that 

included GHGs in the state’s PSD program. 

Comment:

Two commenters (0230.1, 0232.1 Texas AG) believe that EPA’s actions are not 

consistent with the Act’s framework of cooperation between EPA and the states. These 

comments are summarized below.

One commenter (0232.1 Texas AG) stated that EPA’s reading of CAA section 110(k)(6) 

would fundamentally undermine the Act’s cooperative federalism scheme. According to the 

commenter, EPA’s interpretation of section 110(k)(6) is unlawful because it is not “a reasonable 

policy choice for the agency to make” in the context of the statutory scheme established by 

Congress. Chevron, 467 U.S. at 845. The commenter contended that EPA’s attempt to construe 

section 110(k)(6) as an unlimited revisory power for SIP approvals would obliterate the Act’s 

structure of cooperative federalism by inappropriately and unlawfully eliminating Texas’s 

authority to manage its air quality resources, and would undermine the policies of deliberative 

rulemaking and public involvement that Congress expressed clearly in the Act.

The commenter (0232.1 Texas AG) elaborated on the cooperative federalism approach 

embodied in the Act with numerous citations to the Act, the implementing PSD regulations, and 
42

court decisions. The commenter concluded that EPA’s action disapproving Texas’s SIP and 

imposing a FIP is inconsistent with this scheme in the following ways: 

• Texas has not been afforded the 3-year period in which PSD SIP submissions are 

required, or even the 1-year period EPA afforded in the GHG SIP Call. 

• Texas and the public were not given the opportunity to comment on the FIP with the 

knowledge that it could be imposed on Texas before the date EPA set for plan 

revisions in the GHG SIP Call. 

• The purported deficiency in Texas’s SIP – its failure to automatically update to 

incorporate pollutants that become subject to regulation after its enactment –

contravenes a fundamental Texas policy that generally prevents statutes that 

incorporate other regulatory provisions by reference from changing along with their 

incorporated provisions.

Response:

EPA disagrees with this comment. CAA §110(k)(6) is a component of the §110 scheme 

that authorizes EPA to correct an error in an action involving a state that puts EPA and the state 

in the same position that they would have been in had EPA not made the error in the first place. 

EPA is applying that process here, and in a manner consistent with the requirements of CAA 

§110(k)(6). Those requirements obviate the need for a state to make another submittal. EPA is 

not establishing some unlimited revisory power for SIP approvals; rather, it is simply correcting 

a previous error in a SIP approval and putting the parties in the same position they would have 

been in had EPA acted correctly in the first place. By using a tool provided under the CAA –

CAA §110(k)(6) -- EPA cannot be said to be eliminating Texas’s ability to manage its air quality 

resources. In any event, EPA is using its discretion under the error-correction provision 

precisely because Texas has chosen not to take the same steps every other state has taken to 

assure the timely availability of a permitting authority for its GHG-emitting sources.

Comment: 

The commenter (0232.1 Texas AG) indicated that EPA has claimed that the 1990 CAA 

Amendments’ inclusion of the section 110(k)(6) error-correction provision to the Act was 

intended to rework fundamentally the relationship between EPA and the states, and argued that 

this alleged claim is unreasonable. According to the commenter, the D.C. Circuit rejected a 

nearly identical argument by EPA in the context of CAA section 110(k)(5), which was revised 

and recodified in the 1990 CAA Amendments. The commenter stated that when EPA argued in 

that case that a minor change made by the 1990 Amendments gave the Agency the power to 

dictate control measures specified in SIPs, the Court disagreed and rejected the notion that 

Congress would have worked such a fundamental change in so sensitive of a relationship through 

a minor alteration to the statutory text and without making clear that it intended to do so. 

Virginia, 108 F.3d at 1410. The commenter believes that, as in Virginia, EPA has failed to 

produce any evidence that Congress intended to alter the balance between the federal 

government and the states by adding a modest error-correction provision to the Act.
43

The commenter (0232.1 Texas AG) also believes that EPA’s interpretation of CAA 

section 110(k)(6) disregards Congress’ clear policy in favor of extensive public participation in 

nearly all SIP-related actions, citing several sections of the Act and the Administrative Procedure 

Act (APA). The commenter argued that EPA must strike a reasonable balance among the 

policies that Congress sought to advance through CAA section 110(k)(6). Chevron, 467 U.S. at 

865 (agency interpretation entitled to deference because it “represents a reasonable 

accommodation of manifestly competing interests”). The commenter believes that EPA has 

undertaken no such balancing and may not achieve the goal of regulating GHGs by regulatory 

fiat that disregards public participation in the SIP revision process.

Response:

As discussed elsewhere, we view CAA §110(k)(6) as authorizing EPA to correct an error 

that involves an action concerning a state, and thereby put the parties in the same position they 

would have been in had EPA acted correctly in the first place. We view this provision as 

authorizing that action for any type of error, whether some may view that error as smaller or 

larger. The provision provides a streamlined process, which, in the case of an action involving a 

SIP revision, avoids the need for any further state submission, because it was during the initial 

state submission that the public had its opportunity for participation, and it is not necessary to 

provide more opportunity. All this is consistent with the provision’s purpose of authorizing the 

correction of a previous action so as to place EPA and the state in the same positions they would 

have been in had EPA acted correctly.

Comment: 

The second commenter (0230.1) stated that sections 110 and 166 of the Act allow states 

reasonable time to adapt SIPs to any new PSD-regulated pollutants. Although EPA sets national 

standards, the states are free to craft their responses to any newly announced standards. The 

commenter indicated that section 110(a)(2) of the Act, as well as state law, require that SIPs may 

be submitted to EPA for approval, and later be adopted by the state, only after “reasonable 

notice and public hearings.” CAA sections 110(a)(1) and (2); also sections 110(a)(3)(B) and 

110(l) (notice and hearing required before SIP revisions). According to the commenter, the 

Third Circuit held in Bridesburg, 836 F.2d at 785, that because a state must have an opportunity 

to pass first upon the mechanics of achieving compliance with air quality standards, EPA cannot 

unilaterally revise a SIP without following the Act’s revision provisions. Thus, SIPs are 

developed by states pursuant to mandatory notice and comment requirements in CAA 

sections 110(a)(2) and 110(l), and EPA subsequently approves or disapproves submitted SIPs 

through a separate APA-mandated federal notice and comment rulemaking. 5 U.S.C. 553; 

42 U.S.C. 7601.

This commenter (0230.1) also indicated that section 166(b) of the Act demands that EPA 

allow states enough time to change their laws to accommodate newly promulgated federal 

expectations. Specifically, with regard to SIP revisions responding to a new regulated PSD 

pollutant, this section allows states 21 months to submit a plan revision. The commenter stressed 

that section 166(b) is clear that EPA may approve or disapprove the revised plan only after the 

state submits its revision. Accordingly, the commenter contended that any SIP call issued before 
44

the states have failed to satisfy their obligations within 21 months is illegally premature. The 

commenter added that, a fortiori, EPA lacks statutory authority to issue a retroactive 

“correction” to a state’s SIP for failing to comply with EPA’s newly- promulgated requirements, 

or unilaterally to federalize the state’s permitting program. The commenter stated that EPA may 

not achieve through its power to “correct” under section 110(k)(6) what it is prohibited from 

doing under the Act’s express procedures for SIP revision.

The commenter (0230.1) believes that EPA’s failure to allow the 21 months mandated by 

CAA section 166(b), i.e., by pronouncing that no PSD permits may be issued after January 2, 

2011 without consideration of GHGs, in effect imposed a national construction ban. The 

commenter stated that EPA’s solution to this problem – to bypass the Act’s procedures for 

notice, comment, and reasoned decision-making and unilaterally federalize the state permitting 

programs – illustrated the implausible nature of EPA’s undertaking and the absence of 

supporting statutory authority. The commenter also indicated that EPA’s SIP Call that gave 

Texas until December 1, 2011 to submit a SIP revision, followed by this interim final rule and 

proposal is the antithesis of the partnership between EPA and the states set out by the Act.

Response:

For the reasons discussed elsewhere, EPA’s actions in this rulemaking are fully 

authorized under CAA §110(k)(6). That provision authorizes EPA to revise a EPA action related 

to a state that was in error without a further submittal or other action on the part of the State. 

That provision is not circumscribed by the provisions cited by the commenter under section 110.

Nor is the error-correction provision circumscribed by section 166, which the commenter 

also cites. The commenter’s argument that the 21-month period under section 166 circumscribes 

the period for SIP submittal under a SIP Call and that, in turn, circumscribes EPA’s authority 

under CAA §110(k)(6) is strained and lacks credibility. In any event, EPA explained in the SIP 

Call rulemaking preamble and response-to-comments document that the 21-month period does 

not constrain the timing for EPA’s actions under the CAA §110(k)(5) SIP call provision. EPA 

incorporates that explanation by reference into this response. CAA section 166(b) by its terms 

applies only in the case of certain pollutants listed in CAA section 166(a) and pollutants for 

which NAAQS are promulgated and therefore does not apply to GHGs, and (ii) the D.C. Circuit 

held, in Alabama Power v. Costle, that the 21-month period does not toll the applicability of 

PSD requirements to pollutants, that is, that PSD requirements apply to pollutants during that 

period. 636 F.2d 323,406 (1980). 

Most broadly, EPA’s regulation of GHGs under the motor vehicle rule triggered the 

applicability of PSD for GHG-emitting sources as of January 2, 2011. As a result, by operation 

of the Clean Air Act itself – specifically, the requirements of CAA §165(a)(1) -- certain GHGemitting sources were precluded from undertaking construction or modification unless they had 

a PSD permit. Most of the states in the union either had in place approved PSD SIPs or FIPs 

that automatically applied PSD to GHG-emitting sources, and in those states, either the state (if 

an approved-SIP state) or EPA (if a FIP state) would serve as the permitting authority. For 

these states, no construction ban of any type was in place. A minority of states, including Texas, 

had approved SIPs in place that did not provide authority to apply PSD to GHG-emitting 
45

sources and, because they had approved SIPs in place, did not have FIPs in place. As a result, 

absent further action by the states or EPA, GHG-emitting sources in those states would, after 

January 2, 2011, lack a permitting authority to process their permit applications and, lacking a 

permit, would be unable lawfully to undertake construction or modification. This scenario does 

not result from any construction ban, rather it is the result of the lack of an approved SIP or FIP 

in the state. For these states, EPA issued a SIP call, and, as noted elsewhere, each of these 

states except for Texas took steps to assure the availability of a permitting authority on a timely 

basis for their GHG-emitting sources. Texas’s failure to do so was the genesis for this 

rulemaking. Under these circumstances, the §110(k)(5) SIP Call (for each of the minority of 

states) and the §110(k)(6) error correction (for Texas) were appropriate procedures for EPA to 

undertake, and EPA was under no obligation to undertake the procedures, if they applied at all, 

in the other CAA provisions identified by the commenter.

5.2 Comments on CAA Section 301 Authority

Comment:

Six commenters (0224.1, 0225.1, 0227.1, 0228.1, 0229.2 TCEQ, 0230.1) stated that EPA 

also seeks to rely on its general rulemaking authority under CAA section 301, 42 U.S.C. 7601, to 

justify its revision of the Texas SIP, and asserted that this argument is without merit. According 

to the commenters, while section 301 authorizes EPA “to prescribe such regulations as are 

necessary to carry out [its] functions under this chapter,” id., it does not eviscerate the CAA’s 

procedural requirements.

Three of the commenters (0224.1, 0225.1, 0227.1) noted that the courts have held that 

when specific provisions “define[] the relevant function of EPA in a particular area,” then “EPA 

cannot rely on its general authority to make rules necessary to carry out its functions.” American 

Petroleum Institute v. EPA, 52 F.3d 1113, 1119 (D.C. Cir. 1995). The commenters stated that 

section 110 of the Act provides the processes for SIP revisions, and that EPA has already 

acknowledged that they require, at a minimum, giving Texas 1 year to respond. 75 FR 77703. 

Two of the commenters (0224.1, 0225.1) asserted that the American Petroleum Institute court 

recognized that these two powers cannot be used in tandem, 52 F.3d at 1119; therefore the 

specific procedures for SIP revisions govern EPA’s general rulemaking authority.

Another of the commenters (0228.1) similarly stated that the D.C. Circuit has confirmed 

that EPA’s “inherent administrative authority” is not as free-ranging as EPA suggests, pointing 

out that the court has observed that, although the Agency does possess administrative discretion, 

it does not have a “roving commission.” Michigan v. EPA, 268 F.3d 1075, 1084 (D.C. Cir. 

2001); Am. Petroleum Inst. v. EPA, 52 F.3d 1113, 1119 (D.C. Cir. 1995); Ethyl Corp. v. EPA, 51 

F.3d 1053, 1058 (D.C. Cir. 1995). The commenter added that the notice-and-hearing procedure 

that is required by the CAA for states to adopt and revise SIPs, and for EPA’s approval or 

disapproval of SIPs, exists for a reason – in part to provide a check on potential state and federal 

agency misuse of regulatory authority. The commenter asserted that in the present proposed 

rule, EPA is undertaking what amounts to a unilateral revision of a SIP; even where 
46

section 301(a) does apply, EPA would be unable to override procedural requirements imposed by 

the Act. According to the commenter, section 301(a) does not allow EPA to do what the

proposed rule would do: in effect, revise a SIP in a way that circumvents the CAA’s requirement

that states provide public notice and a hearing before any substantive SIP revisions may occur.

Response:

We disagree with these comments because they do not accurately describe the manner in 

which EPA relies on CAA §301. As explained in the preamble for this rulemaking, the 

provisions in CAA section 110 that authorize EPA to take action on a SIP revision inherently 

authorize EPA to, on its own initiative, reconsider and revise that action as appropriate. In 

several decisions, described in the preamble for this rulemaking, the courts have found that an 

administrative agency has the inherent authority to reconsider its decisions, unless Congress 

specifically proscribes the agency's discretion to do so. Section 301(a) of the CAA, read in 

conjunction with CAA section 110 and this case law, provides further statutory authority for 

EPA to reconsider its actions under CAA section 110. CAA section 301(a) authorizes EPA "to 

prescribe such regulations as are necessary to carry out [EPA's] functions" under the CAA. 

Reconsidering prior rulemakings, when necessary, is part of “[EPA’s] functions” under the CAA 

- in light of EPA’s inherent authority as recognized under the case law to do so – and, as a 

result, CAA section 301(a) confers such authority upon EPA. 

We disagree with the comment that because section 110(k)(5) sets up one process to 

revise SIPs, the current action may not be taken under EPA’s general rulemaking authority. As 

will be further discussed below, EPA’s inherent authority to reconsider its actions, in 

conjunction with CAA section 301(a) is not limited by the availability of the SIP call process. 

The SIP call process is used when EPA determines that a current SIP is substantially inadequate 

to attain or maintain compliance with the CAA requirements and is a means for addressing a 

deficiency on the state’s part by calling for state action. EPA action today is fundamentally 

different. Today, EPA is reconsidering its previous approval to address deficiencies in its own 

previous action, not that of the state. Section 110(k)(6) provides EPA with the authority to act to 

correct errors in its own previous actions in such a situation. EPA believes that its inherent 

authority to reconsider its own prior actions also provides it with the authority here to correct 

errors in its own prior actions.

In general, the reconsideration authority is broader than the section 110(k)(6) authority 

because the former is not necessarily limited to the correction of errors. However, EPA 

recognizes that if section 110(k)(6) has the breadth that EPA believes it has, then it may take the 

place of EPA’s inherent authority to reconsider prior erroneous actions here. If instead, as 

commenters argue, the section 110(k)(6) authority is limited to only technical or typographical 

errors, then the reconsideration authority is substantially broader and EPA continues to have 

inherent authority to make corrections beyond what section 110(k)(6) authorizes, including this 

action. For these reasons, the reconsideration authority should not be considered to have been 

pre-empted or otherwise eliminated by the availability of either the SIP revision process or the 

error correction process under American Petroleum Institute.. 
47

In this case, EPA’s reliance on §301, in conjunction with the other authorities and case 

law, does not give EPA a “roving commission;” rather, EPA’s action is narrowly 

circumscribed: It is reconsidering its own previous action on the basis of the relevant parts of 

the record for that action, and is not unilaterially revising the SIP or requiring the state to take 

any further action, 

5.3 Comments on Inherent Authority under the APA and the Act

Comment:

Three commenters (0225.1, 0230.1, 0232.1 Texas AG) disputed that EPA has “inherent 

authority” to take the proposed interim final actions. One commenter (0225.1) stated that EPA 

“finds further support for its authority to narrow its approvals” in APA section 553(e) provision 

requiring EPA to give interested persons “the right to petition for the issuance, amendment, or 

repeal of a rule,” and the CAA section 307(b)(1) provision allowing persons to file a petition for 

reconsideration under certain circumstances. 75 FR 82436. According to the commenter, EPA

asserted that these provisions – which EPA admits apply to “other persons” – imply that EPA has 

inherent authority to issue an amendment or repeal on its own. Id. The commenter contended 

that this justification using two provisions which are obviously not intended to apply to EPA 

does not grant EPA any “inherent authority.” As discussed in the previous comment, the 

commenter believes that even if these provisions did grant EPA any inherent authority, EPA’s 

general authority cannot override specific provisions which define EPA’s authority to carry out 

its functions. The commenter concluded that EPA cannot escape the statutorily-delegated CAA 

section 110 SIP revision process by relying on its self-conferred “inherent authority.”

Response:

We disagree with these comments. The provisions in CAA section 110 that authorize 

EPA to take action on a SIP revision, read in conjunction with CAA section 110(k) and other 

statutory provisions, inherently authorize EPA to, on its own initiative, reconsider and revise 

that action as appropriate. The courts have found that an administrative agency has the inherent 

authority to reconsider its decisions, unless Congress specifically proscribes the agency’s 

discretion to do so. See, e.g., Gun South, Inc. v. Brady, 877 F.2d 858, 862 (11th Cir. 1989) 

(holding that agencies have implied authority to reconsider and rectify errors even though the 

applicable statute and regulations do not provide expressly for such reconsideration); Trujillo v.

General Electric Co., 621 F.2d 1084, 1086 (10th Cir. 1980) (‘‘Administrative agencies have an 

inherent authority to reconsider their own decisions, since the power to decide in the first 

instance carries with it the power to reconsider’’); see also New Jersey v. EPA, 517 F.3d 574 

(DC Cir. 2008) (holding that an agency normally can change its position and reverse a prior 

decision but that Congress limited EPA’s ability to remove sources from the list of hazardous air 

pollutant source categories, once listed, by requiring EPA to follow the specific delisting process

at CAA section 112(c)(9)).4

 4 For additional case law, see Belville Mining Co. v. United States, 999 F.2d 989, 997 (6th Cir. 1993); Dun & 

Bradstreet Corp. v. United States Postal Service, 946 F.2d 189, 193 (2d Cir. 1991); Iowa Power & Light Co. v. 

United States, 712 F.2d 1292 (8th Cir. 1983).
48

Section 301(a) of the CAA, read in conjunction with CAA section 110 and the case law 

just described, provides further statutory authority for EPA to reconsider its actions under CAA

section 110. CAA section 301(a) authorizes EPA ‘‘to prescribe such regulations as are necessary 

to carry out [EPA’s] functions’’ under the CAA. Reconsidering prior rulemakings, when

necessary, is part of ‘‘[EPA’s] functions’’ under the CAA—in light of EPA’s inherent authority 

as recognized under the case law to do so—and as a result, CAA section 301(a) confers such

authority upon EPA.

EPA finds further support for its authority to narrow its approvals in APA section 553(e), 

which requires EPA to give interested persons ‘‘the right to petition for the issuance, 

amendment, or repeal of a rule,’’ and CAA section 307(b)(1), which expressly contemplates that 

persons may file a petition for reconsideration under certain circumstances (at the same time 

that a rule is under judicial review). These authorizations for other persons to petition EPA to 

amend or repeal a rule suggest that EPA has inherent authority, on its own, to issue such 

amendment or repeal. The commenter claims that these provisions are irrelevant, since they 

only directly speak to the ability of a third party to petition EPA to act. However, EPA may only 

grant a petition from another person for an amendment to or repeal of a rule if justified under 

the CAA. If such an amendment or repeal is justified under the CAA, then EPA should be

considered as having inherent authority to initiate the process on its own, even without a petition 

from another person. In other words, if EPA did not have the authority to take the requested 

action, then it could not do so at the behest of a third party and the right to petition EPA to take 

the action would be meaningless. Thus, these provisions provide additional support for EPA 

inherent general authority to revise its own prior actions.

EPA recently used its authority to reconsider prior actions and limit its prior approval of 

a SIP in connection with California conformity SIPs. See, e.g., 68 FR 15720, 15723 (discussing

prior action taken to limit approvals); 67 FR 69139 (taking final action to amend prior 

approvals to limit their duration); 67 FR 46618 (proposing to amend prior approvals to limit 

their duration, based on CAA sections 110(k) and 301(a)). EPA had previously approved SIPs 

with emissions budgets based on a mobile source model that was current at the time of EPA’s 

approval. Later, EPA updated the mobile source model. But, even though the model had been

updated, emissions budgets would continue to be based on the older, previously approved model 

in the SIPs, rather than the updated model. To rectify this problem, EPA conducted a rulemaking 

that revised the previous SIP approvals so that the approvals of the emissions budgets would 

expire early, when the new ones were submitted by states and found adequate, rather than when 

a SIP revision was approved. This helped California more quickly adjust its regulations to

incorporate the newer model. EPA is using its authority to reconsider and limit its prior 

approval of SIPs generally in the same manner as it did in connection with California conformity

SIPs.

EPA disagrees with the commenter that the SIP revision process in 110(k)(5) bars EPA 

from using any inherent general authority it has to revise its own prior action. First, by 

including section 110(k)(6) in the CAA, Congress has made clear that the SIP call process is not 

the exclusive means by which EPA may address flaws in a SIP. Sections 110(k)(5) and (6) of the 

CAA are intended to address different types of problems with SIPs. Congress provided EPA with 
49

section 110(k)(5) for use when EPA determines that a current SIP is substantially inadequate to 

attain or maintain compliance with the CAA requirements. This process is a means for EPA to 

require state action. See, e.g., Sierra Club v. Georgia Power Company, 443 F.3d 1346, 1348 

(11th Cir. 2006) (describing the SIP call process generally as a means to state action). 

However, Congress also explicitly laid out EPA’s error correction authority under CAA section 

110(k)(6), as a means for EPA to unilaterally reconsider its own prior actions without using a 

SIP call. As made clear above, EPA is today correcting its own erroneous action – not requiring 

any state action to amend the language of the SIP. EPA’s general reconsideration authority also 

applies to EPA’s reconsideration of its own actions. 

In the present case, EPA believes that this error correction provision authorizes this 

action. If section 110(k)(6) has the breadth that EPA believes it has, then it may take the place 

of EPA’s inherent authority to reconsider prior erroneous actions. If section 110(k)(6) has a 

more limited breadth and does not apply to this action, then EPA continues to have inherent 

authority to make corrections beyond what section 110(k)(6) authorizes, including this action. 

For further discussion of a similar action in which EPA relied in the alternative on its authority 

to reconsider its previous actions, EPA incorporates by reference the Limitation of Approval of 

Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule (“PSD SIP Narrowing Rule), 75 Fed. Reg. 

82536, 82544-82547 (Dec. 30, 2010).

Comment:

Another of the commenters (0230.1) stated that an agency only has those powers 

specifically delegated to it by statute and noted that the Second Circuit has explained in rejecting 

the Government’s similar assertion of “‘inherent’ power to reconsider final rules it has published 

in the Federal Register” that such a claim is “a bit puzzling in light of the well-established 

principle that ‘an agency literally has no power to act ... unless and until Congress confers power 

upon it.’” NRDC v. Abraham, 355 F.3d 179, 202 (2d Cir. 2004) (quoting La. Pub. Serv. Comm’n 

v. FCC, 476 U.S. 355, 374 (1986)).

This commenter (0230.1) also stated that EPA’s assertion of “inherent authority” in this 

case violates basic principles of statutory interpretation because it ignores the express authority 

for SIP revision and error correction that Congress provided in the Act. The commenter asserted 

that it is implausible to suggest that Congress would have gone to the trouble of enacting these 

carefully crafted authorities (with specific sequences and timeframes) if EPA could act 

unilaterally at any time under an atextual, implied power to revoke and revise a SIP. The 

commenter added that EPA itself conceded that such inherent authority to reconsider is always 

subordinate to Congress’ decision to proscribe an agency’s discretion. Finally, the commenter 

noted that EPA cited no authority for the proposition that the power to reconsider an action in 

response to a petition under CAA section 307(b)(1) includes the authority to reconsider sua 

sponte at any time.

The third of these commenters (0232.1) similarly believes that EPA has no inherent 

authority to reconsider its approval of Texas’s SIP. The commenter stated that whether EPA has 

inherent authority to reconsider certain decisions in appropriate circumstances, it must not do so 
50

in an arbitrary and capricious manner, and EPA must reconsider its decision within a reasonable 

time of the original decision. ConocoPhillips Co. v. EPA, 612 F.3d 822, 832 (5th Cir. 2010). 

Moreover, “an agency cannot exercise its inherent authority in a manner that is contrary to a 

statute, [and also that] in situations where a statute does expressly provide for reconsideration of 

decisions, the agency is obligated to follow the procedures for reconsideration set forth in the 

statute.” Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1361 (2008) (citing Civil 

Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316, 329 (1961)). The commenter noted that 

the Act contains an expedited and circumscribed procedure for EPA action regarding SIPs and 

summarized the requirements of sections 110(k)(1)(B), 110(k)(2), 110(k)(3), and 110(k)(5). 

Response:

We disagree with these comments. Caselaw supports an inherent general authority for 

agencies to reconsider their own prior actions. As discussed above, the D.C. Circuit, among 

others, has found in a case specifically involving the Clean Air Act that an agency can inherently 

change its opinion and reverse its own prior decision, though Congress can limits its ability to 

do so. New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008). Embedded in an agency's power to 

make a decision is its power to reconsider that decision. In addition, “[t]he power of an 

administrative agency to administer a congressionally created and funded program necessarily 

requires the formulation of policy and the making of rules to fill any gap left, implicitly or 

explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231-32 (1974). EPA agrees with these 

and similar precedents on this matter. In addition, here, as discussed above, EPA finds that it 

has the inherent general authority to revise its prior approval based on both this body of caselaw 

and CAA section 301(a), read in conjunction with CAA section 110(k) and other statutory 

provisions. Thus EPA relies on an inherent general authority derived from the authority 

Congress actually granted to EPA.

As discussed above, the CAA delineates both a SIP call process and an error correction 

process, each for application under different circumstances. Congress provided EPA with 

section 110(k)(5) for use when EPA determines that a current SIP is substantially inadequate to 

attain or maintain compliance with the CAA requirements. This process is a means for EPA to 

require state action. See, e.g., Sierra Club v. Georgia Power Company, 443 F.3d 1346, 1348 

(11th Cir. 2006) (describing the SIP call process generally as a means to state action). 

Congress provided section 110(k)(6) as a means for EPA to address its own flawed prior action, 

rather a flaw in the state’s action. Thus, EPA’s error correction authority under CAA section 

110(k)(6) is a means for EPA to unilaterally reconsider its own prior actions without using a SIP 

call. Here, EPA is not revising the SIP submitted by Texas, but rather EPA is amending its own 

prior action in approving the SIP. 

EPA believes it has the inherent general authority to revise its prior approval here. 

However, EPA recognizes that if section 110(k)(6) has the breadth that EPA believes it has, then 

it may take the place of EPA’s inherent authority to reconsider prior erroneous actions. If 

section 110(k)(6) has a more limited breadth and does not apply to this action, then EPA 

continues to have inherent authority to make corrections beyond what section 110(k)(6) 

authorizes, including this action. Section 110(k)(5), which provides a means of amending a state 
51

action, rather than EPA’s own action, is not a bar to EPA’s exercise of its inherent general 

authority.

While EPA does not rely on either APA section 553 or CAA section 307(b)(1) as direct 

authority for its action, it does find that these provisions lend support to the proposition that 

EPA has inherent authority to correct an error as it does here. EPA finds that the authority to 

act upon a petition to reconsider must necessarily contain within it the act to reconsider as 

applied here. The commenter does not cite to any authority indicating otherwise.

Today’s reconsideration is not being done in an arbitrary and capricious manner. 

Rather, EPA has undertaken a full rulemaking action in the context of new facts brought to light 

by the regulation of a new pollutant under the CAA. As discussed throughout this rulemaking 

and RTC, EPA has taken this action to resolve a flaw that, if left unaddressed, would have real 

negative practical consequences for sources seeking permits in the state of Texas. EPA’s 

reconsideration of its prior approval was taken promptly once recent actions by Texas 

illuminated the error in EPA’s prior approval. EPA could not have reasonably taken this action 

any earlier, as it had not yet recognized the flaw in its previous approval of Texas’s SIP. 

Comment:

The same commenter (0232.1 Texas AG) added that the Bridesburg court held that 

because section 110(k) limits the time by which EPA may consider in approving a SIP, the 

statute also places “at least reasonable limits on the Administrator’s authority to reconsider” and 

that a change after 13 years is a revision that must be accomplished through appropriate statutory 

means. Bridesburg at 786. The commenter believes that the interim final rule similarly is a 

revision that must be accomplished through appropriate statutory means. The commenter noted 

that EPA did not mention Bridesburg in its discussion of inherent authority (even though it 

mentioned Bridesburg elsewhere), and opined that “this omission was undoubtedly purposeful 

and further underscores the arbitrary and capricious nature of EPA’s proposed action.” The 

commenter also cited New Jersey, 517 F.3d at 583 to support the argument that EPA lacks 

inherent authority for this action.

The commenter (0232.1 Texas AG) also asserted that EPA’s actions limiting its prior 

approval of California SIPs to allow the states to use newer motor vehicle emission modeling 

technology does not support its action here. 75 FR 82436. According to the commenter, EPA 

never identified “inherent authority” to reconsider or limit its SIP approval as a basis for these 

actions. 67 FR 46618, July 16, 2002; 67 FR 69139, November 15, 2002; 68 FR 15720, April 1,

2003. Instead, EPA described its action as “provid[ing] a mechanism for enhancing compliance 

with [] CAA section 176(c)(1).” 67 FR 69142. The commenter argued that these actions, made 

at California’s request, have no relevance to the instant action.

Response:

We disagree with these comments. EPA reconsidered its prior approval of Texas’s SIP in 

a timely manner once it determined that a flaw existed. Unlike when a new SIP submittal is 

provided to EPA, it would make little sense to time limit EPA’s ability to reconsider its actions to 
52

correct errors in those actions because there is no guarantee such errors may be noticed within 

a prescribed time period. 

EPA has accomplished today’s action through appropriate means as part of a full 

rulemaking action. EPA believes that section 110(k)(6) provides the statutory authority for this 

action. But, to the extent section 110(k)(6) is interpreted more narrowly than EPA believes is 

appropriate, then EPA’s inherent general authority – based in part on its statutory authority --

applies. As discussed above, EPA disagrees with the commenter’s interpretation of the New 

Jersey case.

With regards to the California Conformity SIPs discussed by the commenter, EPA was 

acting to provide a mechanism for enhancing compliance with CAA section 176(c)(1). However, 

the legal basis for this action was EPA’s inherent general authority to reconsider its prior 

actions. Just as here EPA finds that CAA sections 110(k) and 301(a) provide the basis for our 

inherent authority, to reconsider our prior actions, the proposed rule there stated that EPA was 

there acting “as authorized in CAA sections 110(k) and 301(a).” 67 FR 46618, 46620 (July 16, 

2002).

5.4 Other Comments on EPA’s Error Correction

Comment:

One commenter (0228.1) stated that according to previous EPA interpretations, adoption 

of the Tailoring Rule is a “fundamental change” to the PSD program and therefore requires a SIP 

revision to be implemented. 57 FR 28093, 28096, June 24, 1992; 54 FR 52823, 52824, 

December 22, 1989. The commenter noted that EPA’s 1989 proposed approval of Texas’s PSD 

SIP stated that EPA’s changing statutory interpretations do not have to be included in a SIP 

because it would be “administratively impracticable” to do so, but EPA concluded that “any 

fundamental changes in the administration of PSD would have to be accomplished through 

amendments to the regulations in 40 C.F.R. 52.21 and 51.166, and subsequent SIP revisions.” 

Id. (emphases added). The commenter added that in the 1992 final EPA rule approving Texas’s 

PSD program, EPA reiterated: “EPA cannot unilaterally change the clear meaning of any 

approved SIP provision by later guidance or policy. Rather, as stated in the proposed approval 

notice, such fundamental change must be accomplished through the SIP revision process.” 

57 FR 28096 (emphasis added).

The commenter (0228.1) believes that there may be no more fundamental change to the 

PSD program than its recent expansion to include GHGs as provided in the Tailoring Rule. The 

commenter alleged that this expansion was effected “through amendments to the regulations in 

40 C.F.R. 52.21 and 51.166,” 54 FR 52824, and accordingly qualifies as a “fundamental 

change.” Id. As EPA recognized, the step needed to “accomplish[]” this fundamental change is 

the state’s adoption of “subsequent SIP revisions.” 54 FR 52824. Through the SIP Call, EPA 

called on Texas to revise its SIP to incorporate GHGs in its PSD program. The commenter 

believes that Texas properly has 3 years to accomplish this task, but even if it must do so by 
53

EPA’s SIP Call-imposed deadline of December 1, 2011, SIP revisions need to be accomplished 

to effectuate this unmistakably fundamental change.

The commenter (0228.1) stated that the language of the Act and EPA’s rules give states 

reasonable time to make SIP revisions to accommodate fundamental changes in law. Because 

EPA has been “well aware,” 75 FR 82432, of what it characterizes as the “deficiencies,” id. at 

82459, in Texas’s PSD program for some time, and because the GHG change EPA made to the 

federal PSD program is unquestionably “fundamental,” 54 FR 52824, the change is required by 

law to be effected through SIP revisions and cannot be made through the section 110(k)(6) error 

correction mechanism.

Response:

In the preamble for this rulemaking, we respond to the comment that the application of 

the PSD program to GHG-emitting sources was a “fundamental change” within the meaning of 

EPA’s proposed approval of Texas’s PSD SIP. As we stated there, applying PSD to a pollutant 

newly subject to regulation was not a “fundamental change in the administration of PSD;” 

rather, EPA intended that phrase to refer to requirements of the PSD program. As discussed 

elsewhere in the preamble and this document, Texas was already required by the Clean Air Act 

and EPA regulations to apply PSD to pollutants newly subject to regulation. We add here that 

the Tailoring Rule did not apply PSD to GHG-emitting sources; rather, it established thresholds 

for the applicability of PSD to such sources. Moreover, those thresholds are incorporated into 

EPA regulations for the applicability of PSD to GHG-emitting sources, so that EPA’s FIP for 

Texas promulgated through this rulemaking – which applies PSD to GHG-emitting sources –

incorporates those thresholds.

Comment:

One commenter (0232.1 Texas AG) opined that EPA may not engage in retroactive 

rulemaking, so EPA’s action is unlawful because the Agency has no authority to make 

retroactive revisions to its regulations concerning SIP approvals. The commenter asserted that 

though EPA claimed to correct an error in its 1992 approval of Texas’s SIP submission, the 

Agency is applying requirements that did not exist at the time the SIP was approved, particularly 

the asserted requirement that the SIP contain a mechanism to automatically update to include 

newly regulated pollutants in the PSD program. As discussed in other comments, the commenter 

believes that EPA was fully aware of this feature of Texas’s SIP and did not consider this to be a 

requirement at the time, as demonstrated by its knowing approval of Texas’s SIP and other SIPs 

that did not automatically update. According to the commenter, Congress has denied EPA the 

power to impose requirements on the states retroactively: because “[r]etroactivity is not favored 

in the law,” “a statutory grant of legislative rulemaking authority will not, as a general matter, be 

understood to encompass the power to promulgate retroactive rules unless that power is 

conveyed by Congress in express terms.” Bowen v. Georgetown University Hosp., 488 U.S. 204, 

208 (1988). The commenter stated that the SIP-related provisions of the Act contain no 

authorization of retroactive rulemaking and, in fact, specifically prohibit it as regards revision of 

SIPs in the following ways:
54

• Section 110(k)(3) requires EPA to approve any SIP submittal that meets the minimum 

standards of the Clean Air Act, including applicable EPA regulations. No provision 

provides for approval or disapproval of a SIP submission or approved SIP on the 

basis of subsequent rulemaking.

• Section 110(k)(5) allows EPA to make a finding of substantial inadequacy only with 

regard to “the requirements of this chapter to which the State was subject when it 

developed and submitted the plan.” Thus, even where a SIP may be “substantially 

inadequate” to achieve one or more air quality standards, EPA may not impose new 

or additional requirements on the state.

• Section 110(k)(6) error corrections are required to be made under the restrictive 

statutory provisions described elsewhere in the comments, including by acting “in the 

same manner as the approval” by applying the same standards that governed the 

Agency’s original action on the SIP submission. Further, non-retroactivity is, as 

described elsewhere, inherent in the notion of error-correction: failure to meet a 

requirement could not have been “in error” if the requirement did not exist at the time 

of the decision.

• Section 110(i) specifically prohibits any “order, suspension, plan revision, or other 

action modifying any requirement of an applicable implementation plan” regarding 

stationary sources except through the plan revision process or FIP process. This 

prohibition is an unequivocal and absolute bar on retroactive rulemaking that affects 

the contents of an approved SIP as it relates to stationary sources.

The commenter concluded that while the absence of any provision for retroactive rulemaking 

would itself be fatal to EPA’s action, these statutory features demonstrate that Congress 

considered, and specifically rejected, authorizing EPA to act retroactively with respect to SIPs.

Response:

We disagree with this comment. EPA is not making a retroactive revision to its 

regulations concerning SIP approvals. As discussed elsewhere, EPA is not, in this rulemaking 

creating a requirement that SIPs contain a provision to automatically update to include 

pollutants newly subject to regulation. EPA is correcting the error it made in previously 

approving the Texas SIP because at the time the SIP was approved, Texas did not address the 

applicability of PSD to all pollutants newly subject to regulation, as the CAA and EPA 

regulations required at that time. These are not new requirements being applied retroactively.
55

Comment:

One commenter (0232.1 Texas AG) asserted that EPA must follow the CAA 

section 110(a) SIP revision process if it wishes to change the content of the Texas SIP. The 

commenter stated that historically, EPA has incorporated new regulatory requirements, including 

in situations where new pollutants have become “subject to regulation,” by respecting states’ 

rights to submit prospective SIP revisions pursuant to section 110(a) and EPA’s regulations

incorporating those provisions (and the PSD program). According to the commenter, when EPA 

proposed to approve Texas’s SIP, it reaffirmed this commitment, stating that “any fundamental 

changes in the administration of PSD would have to be accomplished through amendments to the 

regulations in 40 C.F.R. § 52.21 and 51.166, and subsequent SIP revisions.” 54 FR 52824. The 

commenter indicated that EPA was clear that this meant that the state could implement its SIP 

according to its terms. 57 FR 28095. The commenter believes that EPA’s failure to follow the 

section 110(a) revisions process as it is compelled to do is arbitrary and capricious, and is 

contrary to law.

The commenter added that, assuming arguendo that EPA could impose another statutory 

mechanism, it would be the section 110(k)(5) SIP call process. In the GHG SIP Call, EPA 

recognized that it could not impose a FIP on Texas until December 2, 2011, and the commenter 

believes that the interim final rule conflicts with this decision.

Response:

EPA disagrees with this comment. EPA is not changing the content of the Texas SIP in 

this action, it is only correcting the error it made in previously approving the Texas SIP. EPA 

responds elsewhere in this document to the commenter’s statements concerning “fundamental 

changes.”
56

6 Comments on the Proposed FIP

Comment:

One industry association commenter (0227.1) indicated that the proposed FIP finds that it 

is sections 160 through 165 of the Act that require GHGs to trigger PSD permitting, but EPA 

stated that it is not soliciting comment on this issue. The commenter stated that EPA’s assertion 

that these sections of the Act require GHGs to trigger PSD is not only incorrect but is 

unsupported in the record, and that EPA cannot determine that it will not accept comment on an 

issue that is at the core of the proposed regulatory language. Thus, the commenter believes that 

EPA’s statement that it is not accepting comments on this particular issue is unavailing and 

difficult to comprehend. The commenter also asserted that EPA’s claim that it is not accepting 

comment on issues that were addressed in its four-rule suite of GHG rulemakings is irrelevant. 

Accordingly, the commenter attached and incorporated by reference the comments previously 

filed purportedly explaining why only NAAQS pollutant emissions can trigger PSD permitting.

Response:

As discussed in the preamble to the final rule, we did not solicit comment on the selfexecuting nature of the PSD program because we have taken comment on this issue in numerous 

previous rulemakings and we believe this issue to be resolved in those rulemakings. In addition 

to the discussion in the preamble to this final rule, this issue was discussed in previous 

rulemakings including the GHG PSD SIP Call Rulemaking and associated FIP, and in the 

response to comments (RTC) documents for those rulemakings (EPA- HQ-OAR-2010-0107-0130 

and EPA-HQ-OAR-2010-0107-0157, respectively). Although not re-opening this issue in this 

rule, for completeness, EPA incorporates by reference its responses to comments on this issue in 

the SIP Call rulemaking.

Comment:

One commenter (0229.2 TCEQ) disagreed that the language in proposed 40 CFR 52.2303 

justifies EPA’s partial disapproval action. According to the commenter, it is obvious from 

EPA’s failure to “correct” its approval for over 18 years that this action and the FIP are about 

GHG regulation and not any other pollutants and is more clear by reference to the new definition 

of “subject to regulation” added by the GHG Tailoring Rule only months ago. The commenter 

believes that an immediate partial disapproval for failure to include GHG which have only 

recently been added through this new definition in 40 CFR 52.21(b)(49) is illegal and does not 

comport with the amendment process provided under 40 CFR 52.21.

Response:

We disagree with this comment. As we explain elsewhere in this document and in the 

preamble for this rulemaking, this action is rooted in the Texas’s SIP PSD program’s flaw 

stemming from its failure to not address pollutants newly subject to regulation. This flaw, which 

was present in the SIP at the time EPA approved it, means that EPA’s approval was in error, 

and that, in turn, serves as the basis for this action.
57

7 Comments on Other Topics

7.1 Comments on a “Construction Ban”

Comment:

Four industry association commenters (0224.1, 0225.1, 0227.1, 0228.1) stated that EPA 

justifies the proposed and final rules out of fear that a “construction ban” will result absent the 

rules, but the commenters asserted that there is no need for the proposed or final rules to avoid a 

construction ban. The primary points made by two of the commenters (0224.1, 0225.1) are as 

follows: 

• An EPA-approved SIP may differ from the Act and EPA regulations. In basing its 

FIP on concern with a construction ban, EPA fails to appreciate that an EPAapproved SIP may differ from the CAA and EPA regulations prior to revision. An 

approved SIP does not immediately become invalid upon a change in the Act or 

regulations. Section 110 of the Act codifies Congress’s intent that the PSD 

provisions of the Act be implemented, maintained, and enforced through 

implementation plans administered by states. 42 U.S.C. 7410(a)(1), (a)(2)(C), (D), 

and (J). Once approved, a state plan defines the entire set of PSD requirements for 

sources in that state until the plan is revised through processes established in section 

110. Id. section 7410(k); Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 

787 n. 12 (3d Cir. 1987). Thus, EPA’s regulation of GHGs does not, by its own 

force, compel stationary sources emitting GHGs to obtain PSD permits based on

those emissions. Only a direct congressional mandate, a SIP revision, or an EPA 

disapproval pursuant to the CAA section 110(k)(6) error correction process can cause 

an EPA-approved SIP to lose effect.Other parts of the CAA reflect Congress’s desire 

that EPA-approved SIPs, with whatever flaws they may have, remain binding absent 

statutory amendments or regulations. Section 406 of the CAA Amendments of 1977 

provided that no “requirement of an approved implementation plan” would be 

affected by the new law until affirmatively “modified or rescinded in accordance 

with” the Act. Pub. L. No. 95-95, section 406, 91 Stat. 685, 796 (1977). Section 

110(n), part of the 1990 amendments, reiterates Congress’s desire more clearly, 

providing that provisions in approved plans “shall remain in effect as part of such 

applicable implementation plan, except to the extent that a revision to such provision 

is approved or promulgated by the Administrator pursuant to this Act.” 42 U.S.C. 

7410(n).

• An EPA-approved SIP may be changed in only two ways – by rare explicit statutory 

command through CAA section 168 or through the revision process in CAA 

section 110. Section 168(b) provides an exhaustive list of clearly self-executing PSD 

requirements. Citizens to Save Spencer County v. EPA, 600 F.2d 844, 851–52 (D.C. 

Cir. 1979). The section 165(a) PSD requirements are not included on that list and 

therefore do not bind sources until incorporated into implementation plans; i.e., until 

implemented by notice-and- comment rulemaking. Id. at 888-90 (upholding 

regulations incorporating section 165(a) into FIPs well after the section’s effective 
58

date); cf. id. at 903 (Robinson, J., dissenting) (preferring to hold that EPA could not 

incorporate Section 165(a) into federal plans “before revision and approval of 

applicable state implementation plans”). The EPA did not give Texas sufficient 

opportunity to revise its SIP through the proper CAA processes.

Response:

As EPA explains elsewhere in this document, EPA’s regulation of GHGs under the lightduty motor vehicle rule triggered the application of PSD to GHG-emitting stationary sources as 

of January 2, 2011. By operation of CAA §165(a)(1), as of that date, certain GHG-emitting 

sources cannot construct or modify unless they obtain a PSD permit. An approved SIP PSD 

program, such as Texas’s, that fails to include GHGs in its PSD program does not override this

statutory requirement. CAA section 110(n) is not relevant to the applicability of CAA 

§165(a)(1). The Citizens to Save Spencer County case does not stand for the proposition that 

CAA §165(a)(1) is not self-executing. Having revised its previous approval of Texas’s SIP to a 

partial approval and partial disapproval, EPA is authorized under CAA §110(c)(1)(B) to 

promulgate a FIP immediately, and is not required to wait until Texas has had another 

opportunity to submit a SIP revision. 

Comment: 

• Compliance with an EPA-approved SIP does not violate the Act. The EPA does not 

cite any provision of the Act that supports its contention that Congress intended to 

impose a construction ban when EPA newly regulates a pollutant. To the contrary, 

CAA section 113(a)(1) protects sources that comply with applicable implementation 

plans by authorizing EPA to issue orders or bring civil actions only when a source 

violates a plan. 42 U.S.C. 7413(a)(1); cf. General Motors Corp. v. United States, 496 

U.S. 530, 539-42 (1990) (sources must comply with applicable plans, which govern 

until EPA approves a replacement). That remains true even when an approved plan 

allows conduct that would otherwise violate the Act or EPA regulations. Indeed, the 

U.S. Court of Appeals for the Seventh Circuit recently held that the Clean Air Act 

“does not authorize the imposition of sanctions for conduct that complies with a State 

Implementation Plan that EPA has approved.” United States v. Cinergy Corporation, 

623 F.3d 455, 458 (7th Cir. 2010) (citing 42 U.S.C. 7413(a)(1)).

Response:

Here, too, EPA stated in the proposal for this rulemaking that because EPA addressed 

this comment in earlier rulemakings on which this rulemaking is based – including the Tailoring 

Rule and the GHG PSD SIP Call – EPA was not soliciting comment on this issue and was not 

required to respond to such comments. 75 FR at 82,388/2, see 75 FR 31,514 (June 3, 2010) and 

75 FR 77,698 (December 13, 2010). Even so, for the sake of completeness, and without reopening this issue in this rulemaking, EPA provides the following response: We disagree with 

the comment that compliance with an approved SIP that does not apply PSD to GHG-emitting 

sources means that such sources are not subject to the requirement of CAA §165(a)(1) to obtain 

a permit before undertaking construction or modification. CAA §113(a) does not shield sources 

that comply with SIP requirements from the §165(a)(1) requirements. As we stated in the

preamble for this rulemaking, EPA has long interpreted the PSD applicability provisions in the 
59

CAA to be self-executing,5 that is, they apply by their terms so that a source that emits any air 

pollutant subject to regulation becomes subject to PSD - and, therefore, cannot lawfully 

construct or modify without obtaining a PSD permit — and these provisions apply by their terms 

in this manner regardless of whether the state has an approved SIP PSD program. What is 

more, until an applicable implementation plan is in place — either an approved SIP or a FIP —

no permitting authority is authorized to issue a permit to the source. 

In the recent Cinergy decision, the 7th Circuit confronted a case that, at the district court 

level, involved both nonattainment NSR and PSD claims, with the appeal involving a substantive 

nonattainment NSR issue and an evidentiary PSD issue. However, in its opinion, the 7th Circuit 

described the substantive nonattainment NSR issue as if it applied to both nonattainment NSR 

and PSD. On that issue, the Court held that sources could continue to abide by permitting 

requirements in an existing SIP until amended, even if that SIP does not comport with the law. 

Again, notwithstanding the Court’s broader description of the case, that holding applied only to 

the nonattainment NSR claims because, again, only those claims were before the Court on that 

issue. United States v. Cinergy Corp., 623 F.3d 455 (7th Cir. 2010). In stark contrast to the 

nonattainment provisions actually at issue in Cinergy—which are not self-executing and must 

therefore be enforced through a SIP — PSD is self-executing; it is the statute (CAA section 165), 

not just the SIP, that prohibits a source from constructing a project without a permit issued in 

accordance with the Clean Air Act. 

Comment:

The commenter goes on to state that the State of Texas’s failure to submit a required SIP 

revision could not justify a construction ban. Congress provided sanctions for a state’s failure to 

submit a required SIP revision pursuant to a SIP call in CAA section 179(b). The sanctions 

available include withdrawing federal highway funds and doubling offset ratios. Though severe, 

these sanctions fall short of a full construction ban. Indeed, Congress repealed the only 

construction ban in the Act, section 110(a)(2)(I), as it existed prior to the 1990 Amendments. 

The repeal of this provision is a clear indication that EPA should not be interpreting the post1990 Act to impose a construction ban based on whether a state can issue permits for GHGs 

under the PSD program. Section 166 of the Act provides statutory evidence that when a 

pollutant is regulated under PSD, following EPA promulgation of a NAAQS, Congress provided 

for EPA to allow states time to revise their SIPs. 42 U.S.C. 7476(b) (“Within 21 months after 

such date of promulgation such [SIP] revision shall be submitted to the Administrator who shall 

approve or disapprove the plan within 25 months after such date or promulgation in the same 

manner as required under section 7410 of this title.”). If Congress intended a construction ban, it 

would have expressly provided such an extreme remedy.

• A construction ban will only result from disapproval. The only reason EPA cites for 

promulgating the FIP immediately and without proper administrative process is 

concern over a possible construction ban – a concern of EPA’s own making. 75 FR 

82431. A construction ban in this situation can only result from disapproval of the 

Texas SIP. Even if the Texas SIP is inconsistent with the Act, it remains valid until 

disapproved or revised. Thus, EPA can mitigate its concerns over a construction ban 

by abandoning its disapproval of the Texas SIP and following the process that EPA 

 5 EPA likewise did not reopen this issue in this rulemaking.
60

claimed it would follow in its December 13, 2010 SIP Call – consideration of Texas 

revisions submitted by the EPA-assigned deadline of December 1, 2011. The Texas 

SIP would remain valid in the interim period and affected sources will consequently 

continue to have the permitting authority that EPA claims to prefer: the State. The 

EPA advertised that it would give Texas until December 1, 2011 to submit a SIP 

revision, then surprised Texas only days later with an ill-considered disapproval and 

interim FIP, neither of which was subject to the notice-and-comment process. The 

only reason provided for this abrupt disapproval was the potential for a construction 

ban, a construction ban that would not result if not for the disapproval itself.

Response:

EPA replies to many of these comments elsewhere in this document. We add here that 

the construction ban that the commenter describes is a function of the requirement that sources 

obtain a permit in order to construct or modify, coupled with the lack of a permitting authority in 

the state. It is not the result of some sanction-like provision in the Clean Air Act or any 

disapproval of the Texas SIP. The SIP Call does allow Texas until December 1, 2011 to submit 

its SIP, but until then, absent further action by EPA, GHG-emitting sources in Texas would not 

be able to obtain a construction or modification permit for their GHGs. In any event, Texas has 

indicated that it does not intent to submit a SIP revision to apply PSD to GHGs. 

Comment:

Commenter 0228.1 made many of the same points and added that CAA section 110(i), 

entitled “Modification of requirements prohibited,” provides that SIPs may not be revised except 

through revision of the plan pursuant to the procedures of CAA section 110(a) or, where 

authorized, through promulgation of a FIP under CAA section 110(c). 42 U.S.C. 7410(i); see 

also Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 787 n.12 (3d Cir. 1987) 

(observing, with reference to section 110(i), that “the Act attempts to enumerate an exhaustive 

list of the EPA’s powers regarding SIPs. Lacking another statutory source of authority, the EPA 

must utilize the revision provisions [under section 110(a) or (c)] to accomplish its purpose”); cf. 

42 U.S.C. 7410(k) (establishing process for EPA to “call” a SIP for revision when the SIP has 

become substantially inconsistent with pre-existing requirements of the Act). According to the 

commenter, EPA’s proposed rule would violate the terms of section 110(i) by “modifying . . . an 

applicable implementation plan,” id. section 110(i), by circumventing the requirement that SIP

revisions follow the procedures described in section 110(a) or 110(c), including the 

section 110(a)(2) requirement for “reasonable notice and public hearing” by the state.

Response:

For the reasons discussed elsewhere, CAA §110(k)(6) provides direct authority for this 

rulemaking action, and is not constrained by CAA §110(i).
61

Comment:

This commenter (0228.1) believes that EPA’s regulations confirm that the PSD program 

is not self-executing, pointing out that the PSD rules for states at 40 CFR 51.166 provide that 

“[a]ny State required to revise its implementation plan by reason of an amendment to this section 

. . . shall adopt and submit such plan revision to the Administrator for approval no later than 

three years after such amendment is published in the Federal Register.” 40 CFR 51.166(a)(6)(i) 

(emphasis added). Further, “[a]ny [such] revision . . . shall take effect no later than the date of its 

approval and may operate prospectively.” Id. 40 CFR 51.166(a)(6)(iii). Accordingly, the 

commenter asserted that rather than imposing a permitting moratorium upon EPA’s adoption of a 

new minimum PSD requirement, the PSD rules provide states a reasonable period of time for 

incorporating a new minimum PSD requirement, with prospective effect, into SIPs – during 

which time the EPA-approved SIP continues in force and the state may continue to issue permits 

under that SIP without addressing the new minimum requirement promulgated by EPA. 

Response:

The requirements of 40 CFR 51.166 do not mean that a pollutant is not subject to PSD 

for the first time except through a revision to 51.166. The PSD requirements for pollutants 

newly subject to regulation are triggered at the time those pollutants become subject to 

regulation under other provisions of the CAA, as the PSD requirements for GHGs were 

triggered by regulation of GHGs under the light-duty vehicle rule, as of January 2, 2011. Once 

the PSD requirements are triggered, CAA §165(a)(1) applies by its terms to require sources that 

emit those pollutants to obtain a permit before undertaking construction or modification. This 

issue is discussed in more detail in the preamble and in earlier rulemakings. See 75 FR 31,514 

(June 3, 2010) and 75 FR 77,698 (December 13, 2010). 

Comment: 

The commenter (0228.1) added that because EPA published the Tailoring Rule’s 

amendments to the 40 CFR 51.166 PSD rules on June 3, 2010, Texas’s lawful deadline for 

submitting a revised SIP to adopt that change is 3 years after that date, i.e., June 3, 2013. 

According to the commenter, because 40 CFR 51.166(a)(6)(i) omits the language of underlying 

CAA section 110(a)(1) that this period is to be 3 years “or such shorter period as the 

Administrator may prescribe” and instead codifies a 3-year period, that binding rule precludes 

any attempt by EPA to shorten the 3-year period for SIP submittal.

Response:

EPA disagrees with the argument that the authorization for states to submit PSD SIP 

revisions within a three-year period, under 40 CFR 51.166(a)(6), means that PSD does not apply 

to GHG-emitting sources until states submit such a SIP revision. Section 51.166(a)(6) provides, 

in relevant part: “Any State required to revise its implementation plan by reason of an 

amendment to this section ... shall adopt and submit such plan revision to the Administrator for 

approval no later than three years after such amendment is published in the Federal Register”; 
62

and “[a]ny [such] revision ... shall take effect no later than the date of its approval and may 

operate prospectively. 40 CFR 51.166(a)(6)(i), (iii) (emphasis added). The requirements of 40 

CFR 51.166 do not mean that a pollutant is not subject to PSD for the first time except through a 

revision to 51.166. The PSD requirements for pollutants newly subject to regulation are 

triggered at the time those pollutants become subject to regulation under other provisions of the 

CAA, as the PSD requirements for GHGs were triggered by regulation of GHGs under the lightduty vehicle rule, as of January 2, 2011. Once the PSD requirements are triggered, CAA 

§165(a)(1) applies by its terms to require sources that emit those pollutants to obtain a permit 

before undertaking construction or modification. Because 51.166 is a regulation, it cannot, no 

matter how it is interpreted, override the CAA requirements that apply PSD requirements to 

GHG-emitting sources so that those CAA requirements do not take effect as of January 2, 2011. 

This issue is discussed in more detail in the preamble and in earlier rulemakings. See 75 FR 

31,514 (June 3, 2010) and 75 FR 77,698 (December 13, 2010). 

Comment:

Commenter 0227.1 also touched on many of the points summarized above. In addition, 

the commenter stated that EPA provides no rationale for its apparent position that section 165 of 

the Act operates independently of implementation plans, so it is difficult for commenters to 

respond to it. The commenter added that the structure of the Act provides that statutory 

requirements are given content and effect through notice-and-comment rulemaking (per 

section 110 procedures) rather than self-executing statutory directives, and contrasted the Clean 

Water Act, which prohibits discharge of any pollutant without a permit, to CAA Title I 

programs, which require rulemaking to bring about a restriction on emissions of a pollutant.

Response:

EPA disagrees with these commenters and EPA continues to take the view that the CAA 

PSD requirements apply by their terms to pollutants newly subject to regulation, regardless of 

whether a state with an approved SIP applies PSD to such pollutants. As discussed at length in 

the preamble to the final PSD GHG SIP call (75 FR 77,707-77,709, Dec 13. 2010), the CAA 

requirements (i) prohibit a "major emitting facility" from constructing or modifying without 

obtaining a permit that meets the PSD requirements, CAA section 165(a)(1); and (ii) define a 

"major emitting facility" as a source that emits a specified quantity of "any air pollutant," CAA 

section 169(1), which EPA has long interpreted as any pollutant subject to regulation. 40 CFR 

52.166(b)(49)(iv). In this manner, the CAA requirements for PSD applicability are what we call 

automatically updating, that is, at the very time EPA regulates a previously unregulated 

pollutant, any source emitting that pollutant in sufficient quantities becomes a “major emitting 

facility,” and that source cannot construct or modify without receiving a PSD permit. That is, 

PSD applies to that pollutant at the time it becomes subject to regulation, without further 

regulatory action by EPA. 

EPA regulations have codified this automatically updating aspect of the CAA PSD 

requirements. See 43 FR 26,380, 26,403/3, 26,406 (June 19, 1978) (promulgating 40 CFR 

51.21(b)(1)(i)) and 42 FR 57,479, 57,480, 57,483 (November 3, 1977) (proposing 40 CFR 
63

51.21(b)(1)(i)) (applying PSD requirements to a "major stationary source" and defining that 

term to include sources that emit specified quantities of "any air pollutant regulated under the 

Clean Air Act"). Most recently, in our 2002 NSR Reform rule, EPA reiterated these 

requirements, although changing the terminology. 67 FR 80,186 (December 31, 2002). 

Specifically, EPA required that emissions of "any regulated NSR pollutant" be subject to PSD 

requirements when emitted in specified quantities by sources and defined that term to include 

pollutants regulated under certain CAA requirements, as well as "any pollutant that otherwise is 

subject to regulation under the [CAA]." 40 CFR 52.166(b)(49)(iv). EPA made clear in the 

preamble to the NSR Reform rule that PSD applicability was automatically updating. 67 FR 

80,240. 

GHG-emitting sources became subject to PSD due to the operation of these CAA and 

regulatory provisions, in conjunction with the Light-Duty Vehicle Rule. The latter rule subjected 

GHGs to regulation for the first time, as of January 2, 2011, so that, by operation of the CAA 

PSD provisions and the associated regulatory provisions, PSD automatically applied to GHGemitting stationary sources as of that date. The Tailoring Rule codified in 40 CFR 51.166 an 

interpretation that, read in conjunction with the Light-Duty Vehicle Rule regulations, had the 

effect of establishing the January 2, 2011 date by which GHGs became subject to regulation, see

40 CFR 51.166(b)(48) along with a phase-in schedule, see id at 51.166(b)(48)(iv)-(v). However, 

contrary to commenters arguments, the Tailoring Rule did not itself require that PSD apply to 

GHG-emitting sources, and the provisions that the Tailoring Rule incorporated into 40 CFR 

51.166(b)(48), as just described, did not impose that requirement.

7.2 Comments on the Interim Final Rule

Comment:

Four commenters (0224.1. 0225.1, 0230.1, 0232.1 Texas AG) believe that the interim 

final rule is procedurally deficient for failure to follow notice-and-comment rulemaking 

procedures. The commenters stated that the interim final rule is not justified by the APA’s 

“good cause” exception. Commenter 0225.1 stated that EPA’s justification is circular because 

the rules themselves are the cause of the harm they purport to avert for the reasons discussed 

above in Section 7.1 of this document related to the possibility of a “construction ban” in the 

absence of the rules.

One of the commenters (0224.1) stated that section 110(k)(6) of the Act is designed to 

allow the Agency to correct an error “without requiring any further submission from the State,”

but the Agency must otherwise still proceed “in the same manner” as the original action – i.e., 

the agency must use notice and comment rulemaking as prescribed by CAA section 307(d). 

42 U.S.C. 7607(d). Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 780 (3d Cir. 1987).

According to the commenter, section 110(k)(6) relieves the state of the need to submit further 

information to EPA – it is no longer a “requir[ed]” prerequisite for Agency action – but it does 

not relieve the Agency of its duty to solicit and accept comment from the state. The commenter 

contended that this is consistent with section 110(k)(6)’s status as a mechanism for correction of 
64

uncontroversial mistakes such as “typographical errors,” not a massive loophole in the 

procedures prescribed by Congress for agency action. Bridesburg, 836 F.2d at 786.

This commenter (0224.1) stated that EPA has not offered any “good cause” that would 

justify its disregard of established CAA procedures. According to the commenter, the courts 

have repeatedly stated that the “good cause” exception to APA procedures “should be read 

narrowly,” United States Steel Corp. v. EPA, 595 F.2d 207, 213–15 (5th Cir. 1979), rejecting 

agency attempts to invoke it when the agency could have proposed the rule earlier, id., and when 

the rule is not “unimportant to the industry and to the public,” Texaco, Inc. v. Federal Power 

Commission, 412 F. 2d 740, 743 (3d Cir. 1969) (internal quotation omitted). The circumstances 

here do not meet that extremely stringent standard. In fact, the only reason that EPA can give for 

ignoring the congressional prerequisites for agency action is its own decision to impose a FIP on 

Texas at the eleventh hour. The commenter elaborated as follows:

• The EPA has not given any justification for its decision to delay this rulemaking until 

December 30, 2010, the last business day before January 2, 2011 which, according to 

EPA, is the first day that permitting authorities would have to rely on its rule. 75 FR

82455. In these circumstances, the courts have held that an agency has failed to 

demonstrate good cause. United States Steel Corp, 595 F.2d at 213–15. When the 

agency could have at least given “some warning of the imminent” action and given 

parties the “opportunity to influence the agency’s action” through comments before 

taking final action, it cannot cite statutory deadlines as “good cause” for avoiding 

established statutory procedures. Id. at 214. 

• This is not the kind of uncontroversial action that can be justified under the “good 

cause” exception. As the Third Circuit stated, courts have interpreted the good cause 

“language of 5 U.S.C. § 553(b)(B) to apply to situations where an agency rule is a 

routine determination, insignificant in nature and impact, and unimportant to the 

industry and to the public.” Texaco, Inc. v. Federal Power Commission, 412 F. 2d 

740, 743 (3d Cir. 1969) (internal quotation omitted) (citing National Motor Freight 

Traffic Ass’n v. United States, 268 F.Supp. 90, 95–96 (D.D.C. 1967)). The EPA’s 

action here is far from uncontroversial; indeed, it is a matter of national controversy, 

vehemently resisted by the State of Texas; thus it cannot be exempted from the 

ordinary rulemaking procedures designed to allow input from all stakeholders. 

• The EPA’s claimed justification for the Texas FIP Rules is unreasonable – the 

Agency cites a fear that a construction ban will result absent the rules. 75 FR 82431. 

This fear is entirely illusory because, in the absence of EPA action, no construction 

ban would result. Under Texas’s current SIP, sources may obtain a PSD permit 

without accounting for GHGs. The EPA, however, asserts that “[u]nless and until 

EPA promulgates this rule, Texas sources will not have available a permitting 

authority to process their PSD permit applications and as a result, may face delays in 

construction and modification.” 75 FR 82434. See section 7.1 of this document for 

comments on whether a “construction ban” will result absent these rules.

Another of the commenters (0230.1) similarly argued that the “good cause” exception to 

notice and comment rulemaking “is to be ‘narrowly construed and only reluctantly 
65

countenanced.’” Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). The exception excuses

notice and comment only “in emergency situations, where delay could result in serious harm.” 

Chamber of Commerce v. SEC, 443 F.3d 890, 908 (D.C. Cir. 2006). According to the 

commenter, numerous courts have explained that stringent standard is simply not met when an 

emergency is of the agency’s own creation. NRDC v. Abraham, 355 F.3d 179, 205 (2d Cir. 

2004) (“We cannot agree [] that an emergency of [the agency’s] own making can constitute 

good cause.”); Envtl. Def Fund v. EPA, 716 F.2d 915, 921 (D.C. Cir. 1983) (good cause 

exception inapplicable “where an alleged ‘emergency’ arises as the result of an agency’s own 

delay”). The commenter noted that EPA’s series of rulemakings respond to the Supreme 

Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which was rendered nearly 

4 years ago. The commenter opined that the January 2, 2011 deadline creating the present 

“emergency” is entirely a creature of EPA’s own actions in interpreting the relationship between 

the Act’s mobile and stationary source provisions, and that EPA has ample authority to delay or 

reconsider that interpretation.

This commenter (0230.1) also believes that there is no actual “emergency” requiring the 

EPA to avoid ordinary notice and comment procedures. The commenter stated that EPA has not 

attempted to quantify the marginal environmental benefits it alleges will result from regulating 

GHGs emissions beginning on January 2, 2011, rather than a short period later to permit notice 

and comment. The commenter asserted that the proposition that great environmental harm will 

result from delayed implementation is unsustainable given that EPA's Tailoring Rule adopts a 

phased approach to applying PSD over the course of several years.

In addition, the same commenter (0230.1) contended that EPA cannot plausibly claim it 

has been unaware until now that Texas’s SIP does not automatically incorporate new PSD 

requirements by reference, since it has conceded that it has known this since it approved the SIP

nearly two decades ago. According to the commenter, EPA’s alternate suggestion that it “only 

recently (i.e., on August 2, 2010) had notice of Texas’s interpretation of the Act ignores the 

intervening period of nearly 5 months in which it could have provided notice and solicited 

comments. Finally, the commenter stated that courts have routinely held that the “mere 

existence of [statutory] deadlines for agency action,” including deadlines in the CAA itself, 

“does not in itself constitute good cause” under 5 U.S.C. 553(b)(B). New Jersey v. EPA, 626 

F.2d 1038, 1042, 1047-48 (D.C. Cir. 1980).

The fourth commenter (0232.1 Texas AG) stated that EPA’s promulgation of the interim 

final rule without notice and comment was unlawful for the reasons explained in Texas’s Motion 

for Stay and Reply in Support of its Motion for Stay, which were attached to the comments and 

incorporated by reference.

6

 The commenter argued that EPA knew about any purported 

deficiencies in Texas’s SIP for 18 years, but did not act until December 30, 2010. The 

commenter indicated that EPA acted on the basis of a purported emergency despite the fact that 

other states’ SIPs share the characteristics EPA claims are deficient in Texas’s SIP. According 

to the commenter, even if EPA’s claims of ignorance are credited, it knew about the purported 

deficiency in Texas’s SIP submittal since August 2010 at the latest, but failed to subject the plan 

to notice and comment.

 6 These documents are included in the docket for this rulemaking as attachments to the comment, numbered 

EPA-HQ-OAR-2010-1033-0232.4 and -0232.5.
66

Response:

These comments on the interim final rulemaking are not relevant for the present 

rulemaking, and no response from EPA is required in the present rulemaking.

Comment:

Three commenters (0225.1, 0229.2 TCEQ, 0230.1) asserted that EPA’s promulgation of 

the interim final rule results in no meaningful opportunity for comment on the proposed rule. 

Two of the commenters (0229.2 TCEQ, 0230.1) indicated that the interim final rule effective on 

the same day as the proposal is a clear indication that proposed FIP/partial disapproval is a 

foregone conclusion and EPA will not be swayed by any arguments to the contrary. One of these 

commenters (0230.1) added that that courts have repeatedly held that “[p]ermitting the 

submission of views after the effective date is no substitute for the right of interested persons to 

make their views known to the agency in time to influence the rule making process in a 

meaningful way.” New Jersey, 626 F.2d at 1049.

Because the interim final rule is functionally identical to the proposed rule, the third 

commenter (0225.1) similarly believes that EPA has plainly evidenced its intent to proceed with 

the partial disapproval and FIP and the public has little reason to expect full and fair 

consideration of comments under these circumstances. According to the commenter, EPA’s 

solicitation of comments on the proposed rule operates as nothing more than an attempt at afterthe-fact legitimization of the interim FIP, which EPA intends to seamlessly replace with the 

proposed FIP.

Response:

EPA’s intention in promulgating an interim final rule at the same time as the proposed 

rule was to ensure that there would be a permitting authority available for large sources of GHG 

in Texas. It was not, as suggested by commenters, to prevent a meaningful opportunity for 

comment. EPA held a public hearing for this rule, at which 67 commenters presented their 

views. In addition, during the comment period, EPA received comments from over 5300 

commenters, the majority of which were supportive of EPA’s action. EPA has considered these 

comments in the development of this final rule and has responded to them. 

7.3 Other Comments

Comment:

One commenter (0225.1) stated that EPA provided no meaningful opportunity for 

comment on the proposed rule because EPA stipulated in the proposed rule that it will not 

consider comments relating to “the Endangerment Finding, the Light-Duty Vehicle Rule, 

the Johnson Memo Reconsideration and the Tailoring Rule, or the 1978, 1980, or 2002 PSD 
67

rules.” 75 FR 82368. Given the high degree of interrelatedness of these issues, the commenter 

believes that EPA has asserted a de facto right to ignore nearly any comment at its discretion. 

According to the commenter, it is difficult to imagine any issue presented by this rulemaking that 

was not in some way invoked in the prior rulemakings that are integral to this GHG rulemaking

process. The commenter indicated that his comments are focused on the “rationale and legal 

basis” for EPA’s rulemaking, and thus are in the category expressly solicited by EPA, regardless 

of any similarity to issues raised in prior rulemakings. The commenter added that EPA may not 

legitimately refuse to consider any comments that address the effects of this rulemaking, 

regardless of whether they involve issues that are similar to those considered previously. 

Because EPA has taken a new and unanticipated action in this rulemaking, issues considered 

previously now have new and unanticipated consequences. The commenter asserted that 

stationary source GHG regulation has been a progression of rules – which the commenter has 

found to be a confused and sometimes conflicting progression – and for EPA to pretend that 

these prior rules have no effect on its latest rules is disingenuous.

Response:

We disagree with the comment. It is frequently the case that an agency conducts a 

rulemaking that is based in part on actions or interpretations of the agency in a previous 

rulemaking, but that does not mean that the later rulemaking necessarily reopens the issues in 

the prior rulemaking or is unreasonable if it does not do so. If that were the case, then many 

issues addressed by agencies would remain unresolved for lengthy periods of time. In any event, 

for the sake of completeness, EPA has responded to all comments in this rulemaking, including 

incorporating by reference responses to comments in related rulemakings.

Comment:

One commenter (0232.1 Texas AG) believes that the interim final rule and proposed SIP 

disapproval are founded on a defective administrative record because EPA has not made publicly 

available all materials from the docket of its prior action approving Texas’s PSD SIP submission. 

According to the commenter, EPA has selectively included documents on which it predicated the 

current decision, without allowing the opportunity for Texas and the public to review and 

comment on the remaining documents.

The commenter (0232.1 Texas AG) asserted that EPA’s failure to include these 

documents is unlawful because EPA has a duty under the APA, 5 U.S.C. 551 et seq., and CAA 

section 307(d) to make this information publicly available. The commenter believes that EPA’s 

alleged failure to meet this duty renders its decisionmaking “arbitrary” as a matter of law.

[W]here . . . an agency justifies its actions by reference only to information in 

the public file while failing to disclose the substance of other relevant information 

that has been presented to it, a reviewing court cannot presume that the agency 

has acted properly, but must treat the agency’s justifications as a fictional account 

of the actual decision making process and must perforce find its actions arbitrary.
68

Home Box Office, Inc. v. FCC, 567 F.2d 9, 54–55 (D.C. Cir. 1977) (citing, inter alia, Citizens to 

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)); see also U.S. Lines, Inc. v. Fed. 

Maritime Comm’n, 584 F.2d 519, 535 (D.C. Cir. 1978) (stating that disclosure is “necessary to 

ensure the parties to [regulatory] proceedings the opportunity to participate in the [agency’s] 

decisionmaking which is guaranteed them by statute”); Conn. Light & Power Co. v. Nuclear 

Reg. Comm’n, 673 F.2d 525, 530 (D.C. Cir. 1982); Am. Radio Relay League, Inc. v. FCC,

524 F.3d 227, 244-45 (D.C. Cir. 2008) (Tatel, J., concurring).

The commenter (0232.1 Texas AG) stated that the details of EPA’s failure to include all 

materials from the docket of its action approving Texas’s PSD SIP submission in the docket for 

the interim final rule and proposed SIP disapproval is especially arbitrary and capricious:

• If EPA has considered all the materials in the previous docket but has not included

them in the docket, then it has unlawfully failed to include these materials in the 

docket. 

• If the opposite is true – that EPA has not considered all material in the previous 

docket – then the Agency has acted arbitrarily and capriciously by finding error in its 

1992 approval of Texas’s PSD SIP submission without fully reviewing the record on 

which that action is based.

The commenter (0232.1 Texas AG) believes that EPA must at least state whether it has 

reviewed all materials in the docket of its action approving Texas’s PSD SIP submission and 

include the full docket in the docket for this rulemaking (EPA-HQ-OAR-2010-0133). The 

commenter added that EPA must also extend the time for comment to allow public consideration 

of these materials.

Response:

EPA has provided all relevant material, including all material on which we relied and 

cited in this rulemaking in the docket for this rulemaking. The relevant material primarily 

includes the proposed and final rulemaking notices; various documents included in the Texas 

plan, including the SIP submittals from Texas and letters from Texas containing commitments; 

the technical support document; other letters between Texas and EPA; and other materials. 

EPA reviewed the docket for the 1992 rulemaking and did not rely on other documents for this 

action. We disagree with the commenter’s apparent assertion that we must also include 

material on which we did not rely in this rulemaking. Administrative agencies regularly review 

documents as part of rulemaking proceedings, some of which do not turn out to be relevant and 

therefore are not included in the rulemaking record. All material that EPA considered relevant 

was made publically available at the same time as the proposed rule, so was available 

throughout the public comment period for this rule. The docket for the 1992 rulemaking is a 

matter of public record and commenters could review it if they want to do so. For this reason, 

we do not agree that additional time for public comment is warranted. 
69

Comment:

One commenter (0232.1 Texas AG) stated that EPA’s actions over the last several 

months conclusively demonstrate that the Agency has improperly and unlawfully prejudiced the 

outcome of this action. 

The commenter (0232.1 Texas AG) indicated that EPA’s statements and actions before 

November 2010 manifest its understanding that it lacked the authority to disapprove Texas’s

existing PSD SIP or to impose a FIP before the submittal date EPA set for Texas in the GHG SIP 

Call. To support this assertion, the commenter cited statements in the Tailoring Rule, the GHG 

SIP Call and FIP proposals, and an exhibit offered by Assistant Administrator McCarthy to 

supplement her sworn statement to the U.S. Court of Appeals for the D.C. Circuit on October 28, 

2010.7

According to the commenter (0232.1 Texas AG), EPA then changed strategies and 

undertook efforts to supplant Texas as permitting authority by imposing a FIP on the Texas. In 

support of this contention, the commenter offered the following arguments:

• In the final SIP Call signed by EPA Administrator Jackson on December 1, 2010, and 

published in the Federal Register on December 13, 2010, EPA stated for the first time 

that it was “planning additional actions” to ensure that GHG sources in Texas would 

have available a permitting authority to process their permit applications as of 

January 2, 2011. 75 FR 77710.

• In an interview following the Administrator’s signing of this rule, Assistant 

Administrator McCarthy publicly represented the EPA’s intentions to prevent a 

situation where Texas could not issue permits based on its approved SIP. Mondaq 

Blog, Weekly Climate Change Policy Update,

http://www.mondaq.com/unitedstates/article.asp?articleid=117476, December 8, 

2010.

• At that point, EPA had either determined to disapprove Texas’s decades-old SIP 

submission and impose a FIP (while hiding its plans from Texas and the public), or 

had decided to eliminate Texas’s permitting authority without yet deciding which 

procedural vehicle it would use to effect this action. In either case, EPA had

prejudiced the outcome of this proceeding.

• On December 21, 2010, Assistant Administrator McCarthy sent a letter to Texas 

stating that EPA would partially disapprove Texas’s SIP and impose a FIP arrogating 

to EPA the authority to issue preconstruction permits to GHG emitting sources in 

Texas. Letter from Gina McCarthy, Assistant Administrator, EPA, to Bryan W. 

Shaw, Chairman, Texas Commission on Environmental Quality, December 21, 

2010.8

 Ms. McCarthy’s letter further demonstrates that EPA had made the final 

 7 This document is included in the docket for this rulemaking as an attachment to the comment, numbered 

EPA-HQ-OAR-0232.6. 8 This document is included in the docket for this rulemaking as an attachment to the comment, numbered 

EPA-HQ-OAR-0232.7.
70

decision to supplant Texas’s permitting authority without presenting the issue for 

notice and comment.

• On December 23, 2010, the Administrator, without notice and comment, signed the 

Interim Final Rule disapproving Texas’s existing PSD SIP and formally imposing a 

FIP. 75 FR 82430. Despite EPA’s claim that it did not have an opportunity to 

publish a proposal or solicit comments, the interim final rule was 183 pages in prepublication form, and is unquestionably the product of significant work by the 

Agency.

The commenter (0232.1 Texas AG) believes that these actions by EPA constitute 

improper prejudgment of the rule and cannot stand. According to the commenter, courts may set 

aside legislative rules where “there has been a clear and convincing showing that the agency 

member has an unalterably closed mind on matters critical to the disposition of the proceeding.” 

Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1170 (D.C. Cir. 1979). See also Int’l 

Snowmobile Mfrs. Ass’n v. Norton, 340 F. Supp. 2d 1249, 1261 (D. Wyo. 2004). The

commenter asserted that the Administrator’s statements in the final GHG SIP Call and Assistant 

Administrator McCarthy’s statements in December 2010 clearly and convincingly demonstrate 

EPA’s prejudgment of the issues in this rulemaking, and have prejudiced the outcome of this 

proceeding.

Response:

EPA disagrees with the comment. Statements made by Texas during the summer and fall 

of 2010, and, in particular, comments received from Texas on the SIP Call Rulemaking, made it 

clear that Texas would not take appropriate steps to assure that its GHG-emitting sources would 

have a permitting authority available to process their permit applications, so that they could 

proceed with plans to construct or modify. These statements, as we have made clear in the 

preamble to the final rule, are what made the deficiencies in the Texas SIP apparent to EPA. 

One the deficiencies were clear, EPA took the necessary action to correct its previous approval 

of the Texas SIP and issue a FIP, on an interim final basis, due to the limited time available 

between Texas’s comments on the SIP Call and the January 2, 2011 date by when GHG-emitting 

sources would become subject to PSD requirements. At the same time that it issued the interim 

final rule, EPA also issued a proposed rule for an error correction, limited approval and 

disapproval, and a FIP. As noted elsewhere, EPA conducted a hearing, received extensive 

comments, and has responded to those comments. EPA believes that this final rulemaking action 

is lawful, based on the record, and responsive to comments. EPA has maintained an open mind 

throughout and carefully considered all comments. The fact that EPA issued an interim final 

rule, and shortly before then began to advise the public of the path it was considering, does not 

indicate any prejudice as to this rulemaking. Commenters have had a full opportunity to present 

any concerns they may have as to the legal or policy basis for this final rule, and of course may 

challenge EPA’s action if they believe that basis is deficient. Commenters’ assertion of 

prejudice would necessarily apply whenever an agency conducts an interim final rule, followed 

by a final rule, which would compromise the usefulness of the interim final process. EPA’s 

reliance on an interim-final rule as a gap-filling measure says little more about what final rule 

EPA would promulgate than does the proposed rulemaking.
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Comment:

One commenter (0231.1) argued that Texas’s failure, or inability, to update the SIP to 

meet new federal GHG requirements is symptomatic of a well‐documented and pervasive 

problem with the way Texas implements and enforces its SIP. The commenter noted that 

addressing these Texas SIP implementation flaws through multiple rules is inefficient and will 

lead to continued SIP gaps. Accordingly, the commenter believes that EPA should issue a broad, 

top‐to‐bottom, SIP call to ensure that the residents of Texas can enjoy the full health protections 

of the Act.

Response:

EPA appreciates the comment. However, this action is related only to regulation of 

pollutants newly subject to regulation, which at this time, only includes GHG. Updates on other 

actions related to the permitting program in Texas may be found on the Region 6 website at 

http://www.epa.gov/region6/region-6/tx/tx001.html. 

Comment:

One commenter (0226.1) asserted that GHG emissions should not be regulated under the 

current CAA because the entire framework for regulation of pollutants under the Act is based on 

the assumption that the emissions of regulated pollutants may have local or regional impacts that 

differ geographically. The commenter indicated that the potential impacts of the emissions of 

each GHG are global in nature and generally do not differ geographically.

Another commenter (0232.1 Texas AG) disputed EPA’s claim that Texas’s SIP must 

regulate GHGs as inconsistent with the Act. As the commenter has described in detail in 

comments to EPA and Motions to Stay, the commenter believes GHGs are not properly subject 

to regulation under the Act, and the Endangerment Determination, Tailpipe Rule, Timing Rule, 

and Tailoring Rule are all arbitrary and capricious, and are contrary to law.9 Given that these 

actions are unlawful, EPA cannot disapprove Texas’s SIP for failing to regulate GHGs, or for 

failing to automatically update to include pollutants that should not be subject to regulation. 

Response:

EPA disagrees with the commenters. The question of whether or not to regulate GHG 

was not the subject of this rulemaking. Our reasoning for why it is necessary to regulate GHG 

under the CAA and our basis for the other rules and actions cited by commenter was explained 

in those rules and actions and were not reopened here. 

Comment:

One commenter (0226.1) asserted that the potential negative impacts of any program to 

regulate GHG emissions on Texas’s economy are of critical importance and must be considered. 

 9 These documents are included in the docket for this rulemaking as attachments to the comment, numbered 

EPA-HQ-OAR-2010-1033-0232.3, -0232.8, -0232.9, and -0232.10.
72

The commenter stated that the regulation of GHG emissions from stationary sources under the 

PSD and Title V permitting programs would impose significant costs on both the state and the 

regulated community, and thus, on the general public in Texas through higher taxes and prices, 

which would cause considerable stress on the economy of Texas. The commenter added that 

Texas is a large producer of the petrochemicals, gasoline and diesel, and electricity used by other 

states and it is imperative that the impacts of any regulation of GHG emissions under the PSD 

and Title V permitting programs not directly or indirectly penalize Texas since its economy is 

based to a significant degree on this production.

Response:

This comment is not relevant to this action. This rule does not initiate regulation of GHG 

in Texas. GHG PSD permitting requirements would apply to sources in Texas regardless of 

whether this rulemaking action were taken. Instead, this rule addresses a deficiency in the 

Texas SIP which, if uncorrected, would disrupt the ability of certain sources in Texas to obtain 

the permits they need to construct or expand. 

Comment:

One commenter (0227.1) argued that EPA has inappropriately concluded that the 

inability to issue PSD permits that cover GHGs to a small number of sources constitutes a 

substantial inadequacy. The commenter believes that this is not appropriate based on the 

language of CAA section 110(k)(5) which requires a SIP call if the SIP is inadequate to 1) attain 

or maintain the NAAQS; 2) mitigate adequately interstate transport; or 3) otherwise comply with 

requirements of the Act. According to the commenter, not being able to obtain a permit for GHG 

emissions does not constitute a substantial inadequacy in the SIP because none of the three 

conditions is satisfied. According to the commenter, only a few permits are likely to be issued 

that would require permitting for GHG, and the lack of a BACT limit for GHG would not affect 

the ability of the state to attain a NAAQS, therefore no substantial inadequacy exists, and no SIP 

call is necessary. States should be provided with three years to amend their SIPs when PSD rules

change. 

Response:

 This comment is not relevant to this action. EPA is not determining that there is a 

substantial inadequacy in Texas’s SIP requiring a SIP call, and this rulemaking is not based on 

the requirements of section 110(k)(5). Rather, EPA is determining that there is a flaw in Texas’s 

SIP which made it erroneous for EPA to have approved the SIP in the first instance. EPA is thus 

acting to address this error in its own action under section 110(k)(6) or, in the alternative, under 

its inherent authority to reconsider its own prior actions. Further, EPA believes that the 

negative consequences of a disruption to the ability of certain sources in Texas to obtain the 

permits they need to construct or expand would be significant. This issue was discussed at length 

in the preamble to the final GHG PSD SIP Call Rulemaking, and in the RTC for that rule (EPAHQ-OAR-2010-0107-0130). 
73

Comment:

One commenter (0230.1) believes that the proposed rule violates Executive Order 13132 

on federalism. The commenter indicated that EPA stated without adequate explanation that its

“revocation” of Texas’s SIP and imposition of a federal permitting program for all large 

construction projects in the State of Texas “does not have federalism implications” and “will not 

have substantial direct effects on Texas, on the relationship between the national government and 

Texas, or on the distribution of power and responsibilities among the various levels of 

government” under Executive Order 13132. The commenter asserted that these conclusions are 

impossible to square with the fact that the proposed rule unilaterally revokes Texas’s authority to 

issue permits to businesses and new construction projects within its borders and interposes a 

federal official in the permitting process. According to the commenter, under the Executive 

Order, EPA must, among other things, “grant the States the maximum administrative discretion 

possible” in administering “Federal statutes and regulations administered by the States.”

Executive Order 13132 section 3(c). The commenter questioned how EPA can claim to have 

met that exacting standard when it has cut off Texas’s 1-year SIP revision process after only 

17 days.

Response:

EPA disagrees with the commenter. The CAA specifies the conditions under which states 

may request, and EPA may approve a state’s implementation of CAA requirements. The CAA 

also specifies the action EPA is to take, including issuing a FIP, when states have not met their 

requirements under the CAA. This rulemaking does not change that distribution of power 

between the federal and state government. With this action, EPA is only revising its previous 

approval of the Texas PSD SIP to be a partial approval and partial disapproval and 

promulgating a FIP to address the deficiencies identified in the Texas SIP as authorized by the 

CAA. Therefore, Executive Order 13132 does not apply to this action. We further note that this 

rule does not affect Texas’s ability to issue permits to its sources for their non-GHG emissions; 

rather, this rule simply adds an authority – EPA – to process permit applications for GHG 

emissions, an action that Texas has declined to take. 

Comment:

One Texas industry association commenter (0225.1) expressed concern that the nature of 

the federal permitting process and the likely delays and uncertainties inherent in a federal 

takeover of the Texas PSD permitting program will add significant uncertainty to the current 

business climate, which will negatively impact planning and investment for its members. The 

commenter believes that the impacts of this permitting uncertainty in Texas cannot be 

overemphasized because many of its members’ facilities could be unable to obtain authorization 

for crucial projects that may range from badly needed maintenance and upgrades to pollution 

control projects that reduce emissions of criteria pollutants to facility expansions that will create 

jobs and economic growth. The commenter’s member companies represent a significant portion 

of the energy, refining, and petrochemical industries in Texas, which produces 23 percent and 

28 percent of the nation’s crude oil and natural gas, respectively, more than any other state in the 
74

country. Thus, the commenter believes that given the significant concentration of industries that 

depend on reliable and predictable permitting programs to keep their businesses viable, Texas 

would be affected on a large scale.

Response:

We disagree with the comment. By promulgating this rule, EPA is providing a PSD 

permitting authority for large GHG emitters in Texas. Without this action, there would be no 

permitting authority for large emitters of GHG, though large emitters of GHGs would still be 

required to receive a PSD permit prior to construction or modification. Thus, without today’s 

rule these facilities would have no ability to obtain authorization for construction or 

modification, which would certainly result in the negative impact on planning and investment 

that the commenter raises. Today’s rule in fact ameliorates the impacts cited by the commenter. 

Contrary to the commenter’s statements, EPA is not taking over the Texas PSD permitting 

process. Texas will continue to be the permitting authority for conventional (non-GHG) 

pollutants.