Federal Register / Vol. 79, No. 217 / Monday, November 10, 2014 / Rules and Regulations 66641 

EPA-APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP 

Name of SIP provisions 

Applicable 

geographic or 

nonattainment 

area 

State submittal/ 

effective date EPA approval date Comments 

*******

Commitment Letter from the 

TCEQ regarding regulation of 

PSD pollutants into the future.

Statewide .......... December 2, 2013 ... 11/10/2014 [Insert 

FR page number 

where document 

begins].

Clarifies that the TCEQ has the authority 

under the Texas Clean Air Act to apply 

the Texas PSD program to all pollutants 

newly subject to regulation, including 

non-NAAQS pollutants into the future. 

Clarification Letter from the TCEQ 

regarding authority to administer EPA issued GHG PSD 

permits.

Statewide .......... January 13, 2014 .... 11/10/2014 [Insert 

FR page number 

where document 

begins].

Clarifies that the TCEQ has the general 

authority to administer EPA issued 

GHG PSD permits. Also clarifies that 

the TCEQ has authority to process and 

issue any and all subsequent PSD actions relating to EPA issued GHG PSD 

permits. 

Clarification Letter from the TCEQ 

regarding Judicial Review for 

PSD Permits.

Statewide .......... May 30, 2014 .......... 11/10/2014 [Insert 

FR page number 

where document 

begins].

Clarifies the judicial review process for 

Texas PSD permits. 

■ 3. Section 52.2303 is amended by 

adding paragraph (a)(1)(xi) to read as 

follows. 

§ 52.2303 Significant deterioration of air 

quality. 

(a) * * * 

(1) * * * 

(xi) November 10, 2014 (as revised by 

the Texas Commission on 

Environmental Quality on March 24, 

2014, and submitted on April 16, 2014, 

and further clarified in letters dated 

December 2, 2013, January 13, 2014, and 

May 30, 2014) to address PSD 

permitting requirements of GHG 

emissions for major sources and 

modifications required to obtain PSD 

permits because of emissions of 

pollutants other than GHGs 

promulgated by EPA on June 3, 2010. 

* * * * * 

[FR Doc. 2014–26314 Filed 11–7–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2013–0808; FRL–9912–50– 

OAR] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Withdrawal of Federal Implementation 

Plan; Texas; Prevention of Significant 

Deterioration; Greenhouse Gas 

Tailoring Rule Revisions 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

rescind a Federal Implementation Plan 

(FIP) for Texas for greenhouse gas (GHG) 

Prevention of Significant Deterioration 

(PSD) permitting, with three limited 

circumstances for retained federal 

permitting authority. We are removing 

the majority of the GHG PSD FIP 

because in a separate but simultaneous 

action being published elsewhere in this 

issue of the Federal Register, we are 

finalizing approval of the majority of 

revisions to the Texas State 

Implementation Plan (SIP) submitted by 

the Texas Commission on 

Environmental Quality (TCEQ) to the 

EPA on October 5, 2010, and April 16, 

2014, that address the state’s authority 

to regulate GHGs and establish an 

approvable GHG PSD permitting 

program. The EPA is finalizing this 

action under Section 110 and Part C of 

the Clean Air Act (CAA). 

DATES: This final rule is effective on 

November 10, 2014. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2013–0808. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http://

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. Contact the person listed 

in the FOR FURTHER INFORMATION

CONTACT paragraph below to make an 

appointment. 

FOR FURTHER INFORMATION CONTACT: 

Adina Wiley, Air Permits Section (6PD– 

R), telephone (214) 665–2115, email 

wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

the EPA. 

Table of Contents 

I. Background 

II. Recent UARG v. EPA U.S. Supreme Court 

Decision 

A. Overview of the Decision and 

Implications for this Action 

B. Changes to the Transition Process as a 

Result of the UARG v. EPA Decision 

III. Response to Comments 

IV. Effective Date of Final Action 

V. Final Action 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 


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66642 Federal Register / Vol. 79, No. 217 / Monday, November 10, 2014 / Rules and Regulations 

1See ‘‘Prevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule; Final Rule.’’ 

75 FR 31514 June 3, 2010. See also our February 

18, 2014, Proposal (79 FR 9123) for a full 

background discussion. 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act (CRA) 

L. Petitions for Judicial Review 

I. Background 

The background for today’s final 

action to rescind the Texas GHG PSD 

FIP, but for three limited circumstances, 

and the background for the separate but 

simultaneous final action also being 

published today to approve the majority 

of revisions to the Texas SIP, are 

discussed in detail in our February 18, 

2014, proposal (79 FR 9123). In that 

document, we proposed to approve 

portions of two revisions to the Texas 

SIP submitted by the TCEQ on October 

5, 2010, and December 2, 2013. The 

December 2, 2013, submittal was a 

request for parallel processing of 

revisions proposed by the TCEQ on 

October 23, 2013. Our February 18, 

2014, proposed approval and 

accompanying Technical Support 

Document provide the EPA’s evaluation 

of the October 5, 2010, and December 2, 

2013, revisions to the Texas SIP that 

would provide for the regulation of GHG 

emissions in the Texas PSD program 

and clarify the applicability of BACT for 

all PSD permit applications. We 

preliminarily determined that the 

revisions were consistent with the CAA 

and the EPA’s regulations and guidance 

for the permitting of GHG emissions in 

the PSD program. Therefore, we 

proposed approval of the SIP revisions 

and simultaneously proposed to rescind 

the GHG PSD Federal Implementation 

Plan (FIP) for Texas with the exception 

of the three limited circumstances for 

retained federal permitting authority. 

The December 2, 2013, submittal was 

a request for parallel processing; 

meaning that the EPA proposed a 

rulemaking action on a proposed SIP 

revision concurrently with the State’s 

public review process. As discussed in 

our separate but simultaneous final 

approval action on the Texas SIP 

revisions published elsewhere in this 

issue of the Federal Register, the EPA 

evaluated the April 16, 2014, final Texas 

SIP submittal and determined that the 

changes made by the TCEQ at adoption 

are not material changes to the 

regulations that we proposed to 

approve; and therefore do not alter our 

rationale presented in the February 18, 

2014 proposed approval. By extension, 

the underlying rationale for the 

proposed rescission of the majority of 

the Texas GHG PSD FIP remains 

unchanged from proposal. However, as 

discussed in Section II of this final FIP 

rescission and the separate but 

simultaneous final SIP approval, the 

EPA is not acting on certain sections of 

the April 16, 2014, submittal that are no 

longer necessary after the recent United 

States Supreme Court decision, UARG 

v. EPA. 

In this action, the EPA is finalizing 

only the rescission of the majority of the 

Texas GHG PSD FIP. We are also 

finalizing in a separate but simultaneous 

action published elsewhere in this issue 

of the Federal Register the approval of 

the majority of the above referenced 

revisions to the Texas PSD SIP. 

Therefore, as of the effective date of this 

final action, the TCEQ becomes the 

primary permitting authority for GHGs, 

except in the three limited 

circumstances described this final 

action. As explained in our separate but 

simultaneous final SIP action, we 

explain in the final notice the recent 

United States Supreme Court decision, 

Utility Air Regulatory Group (UARG) v. 

Environmental Protection Agency (EPA) 

(No. 12–1146). We discuss in that notice 

that we are finalizing the majority of the 

proposed approval of the Texas SIP 

revisions but are not acting on certain 

sections of the submittal that appear no 

longer necessary after the decision. 

Please see that notice for further 

discussion. 

II. Recent UARG v. EPA U.S. Supreme 

Court Decision 

A. Overview of the Decision and 

Implications for This Action 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of stationary 

source permitting requirements to GHGs 

in Utility Air Regulatory Group (UARG) 

v. Environmental Protection Agency 

(EPA) (No. 12–1146). The Supreme 

Court held that the EPA may not treat 

GHGs as an air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit, 

but that the EPA could continue to 

require that PSD permits, otherwise 

required based on a source’s emissions 

of conventional pollutants (‘‘anyway’’ 

sources), contain limitations on GHG 

emissions based on the application of 

the BACT. 

The Supreme Court reversed in part 

and affirmed in part the decision of the 

D.C. Circuit Court that upheld several 

EPA actions addressing PSD permitting 

requirements for greenhouse gases 

including the Tailoring Rule.1 Although 

the Supreme Court concluded that ‘‘EPA 

exceeded its statutory authority when it 

interpreted the Clean Air Act to require 

PSD and Title V permitting for 

stationary sources based on their 

greenhouse gas emissions,’’ 134 S.Ct. at 

2449, it did not specifically identify 

particular provisions of the EPA 

regulations it was striking down. Thus, 

pending further action by the United 

States Court of Appeals for the District 

of Columbia Circuit (the D.C. Circuit) 

and EPA action to revise the regulations 

in accordance with a more specific 

remedy ordered by the D.C. Circuit, the 

provisions of 40 CFR 51.166 that 

provide criteria for EPA approval of 

state PSD permit programs remain in the 

Code of Federal Regulations. This 

includes 40 CFR 51.166(b)(48)(v), which 

addresses permitting of ‘‘Step 2’’ 

sources that emit greenhouse gases in 

excess of 100,000 tons per year and no 

other pollutants over the major source 

thresholds. In light of UARG, the EPA is 

not requiring PSD permits, either 

directly or through state implementation 

plans for sources emitting greenhouse 

gases at any level unless a source emits 

a regulated pollutant other than 

greenhouse gases above the statutory 

major source thresholds. That means 

that the EPA will not apply or enforce 

regulations that would require states to 

include in their SIPs a requirement that 

‘‘Step 2’’ sources obtain PSD permits. 

Thus, despite the fact that 40 CFR 

51.166(b)(48)(v) remains in the Code of 

Federal Regulations at this time, in light 

of the Supreme Court’s decision the 

EPA is not taking action on the 

provisions of the Texas SIP that would 

require a stationary source to obtain a 

PSD permit if GHGs are the only 

pollutant (i) that the source emits or has 

the potential to emit above the major 

source thresholds, or (ii) for which there 

is a significant emissions increase and a 

significant net emissions increase from 

a modification. 

The Supreme Court also affirmed the 

lower court’s decision that the BACT 

requirement applies to GHG emissions 

from new and modified sources that 

trigger PSD permitting obligations on 

the basis of their emissions of air 

pollutants other than GHG (also known 

as ‘‘Step 1’’ or ‘‘anyway’’ sources). The 

Court concluded that ‘‘EPA may 

continue to treat greenhouse gases as a 

‘pollutant subject to regulation under 

[the Clean Air Act]’ for purposes of 

requiring BACT for ‘anyway’ sources.’’ 

134 S.Ct. at 2449. Accordingly, the PSD 

BACT requirement continues to apply to 

greenhouse gas emissions from any new 


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2On October 1, 2014, the TCEQ sent EPA Region 

6 a clarification letter in light of the UARG v. EPA 

decision. That letter is also posted in the public 

docket to this rulemaking. 

or modified source that is otherwise 

subject to PSD requirements as a result 

of its emissions of a criteria pollutant 

(i.e. to an ‘‘anyway’’ source), and EPA 

will continue to implement existing 

regulations that limit application of the 

statutory BACT requirement to 

greenhouse gases where the 

construction project to be completed 

would emit at or above a level of 75,000 

tpy of CO2e as provided in 40 CFR 

51.166(b)(48)(iv). 

The EPA and D.C. Circuit have long 

recognized, and the D.C. Circuit’s 

decision affirmed by the Supreme Court 

further confirmed, that PSD 

requirements apply to emissions of PSD 

pollutants ‘‘by automatic operation of’’ 

the Clean Air Act. Coalition for 

Responsible Regulation v. EPA, 684 F.3f 

102, 115 (D.C. Cir. 2012). The Supreme 

Court rejected ‘‘a greenhouse-gasinclusive interpretation of the PSD and 

Title V triggers,’’ because the CAA does 

not allow the Agency to ‘‘treat 

greenhouse gases as a pollutant for 

purposes of defining a ‘major emitting 

facility’ (or a ‘modification’ thereof) in 

the PSD context.’’ 134 S.Ct. at 2442, 

2449. But the Court did not question the 

longstanding interpretation of the EPA 

and the D.C. Circuit court that the CAA 

PSD permitting requirements 

automatically apply to major source 

emissions of pollutants that are ‘‘subject 

to regulation’’ under the Act. 134 S.Ct. 

at 2442 n. 6. See also UARG, 134 S.Ct. 

at 2435 (‘‘it is unlawful to construct or 

modify a ‘major emitting facility’ in ‘any 

area to which [the PSD program] 

applies’ without first obtaining a 

permit.’’). To the contrary, UARG 

affirmed the portion of the D.C. Circuit’s 

decision holding that the BACT 

requirement clearly applies to 

greenhouse gas emissions from 

‘‘anyway’’ sources and that such PSD 

requirements apply to sources 

automatically by operation of the Clean 

Air Act. Accordingly, the EPA does not 

interpret UARG to alter the settled 

understanding that the BACT 

requirement automatically applies to a 

pollutant (including greenhouse gases) 

once it becomes subject to regulation 

under the Clean Air Act. Thus, 

consistent with the Supreme Court’s 

holding that EPA can ‘‘continue to’’ 

require compliance with the BACT 

requirement in the Clean Air Act, 134 

S.Ct. 2449, the EPA will continue to 

apply the BACT requirement to 

greenhouse gases under its existing 

regulations applicable to EPA’s review 

of state implementation plans, including 

40 CFR 51.166(j), 40 CFR 51.166(b)(12), 

40 CFR 51.166(b)(49), and 40 CFR 

51.166(b)(48)(i)–(iv). 

The Supreme Court noted that the 

EPA could exercise its discretion to 

limit application of BACT to sources 

with the potential to emit greenhouse 

gases above a de minimis threshold, but 

that if EPA wished to do so, it would 

need to justify such threshold for 

application of BACT to GHGs on proper 

grounds. The Court observed that when 

EPA established the existing 75,000 tpy 

threshold the Agency did not 

characterize it as a de minimis level. 134 

S.Ct. at 2449. Rather, that threshold 

represents a level that EPA determined 

to be both administratively feasible for 

permitting authorities to implement and 

reasonable for sources to comply with. 

75 FR 31514, 31560 (June 3, 2010). EPA 

is considering additional action to 

establish a de minimis threshold for 

application of the BACT requirement to 

GHGs. Pending additional action by 

EPA addressing the threshold for 

application of the BACT requirement to 

greenhouse gases, the Agency will 

continue to apply the existing 

regulations that require a state PSD 

program to apply the PSD BACT 

requirement to GHG emissions from 

‘‘anyway’’ sources that emit or have the 

potential to emit 75,000 tons per year 

tpy or more of GHG on a carbon dioxide 

(CO2e) basis. With respect to modified 

‘‘anyway’’ sources, the EPA is presently 

reading its regulations to require that 

state PSD programs apply the PSD 

BACT requirements to GHG if both of 

the following circumstances are present: 

(1) The modification is otherwise 

subject to PSD for a pollutant other than 

GHG; (2) the modification results in a 

GHG emissions increase and a net GHG 

emissions increase equal to or greater 

than 75,000 tpy CO2e and greater than 

zero on a mass basis. 

Based on information submitted by 

TCEQ, EPA concluded in its Notice of 

Proposed Rulemaking that TCEQ had 

provided sufficient assurance that it has 

the legal authority, personnel, and 

funding to implement PSD permitting 

requirements for greenhouse gases. 

Following the UARG decision, the State 

of Texas has argued in litigation before 

the D.C. Circuit that GHGs are not 

presently subject to regulation under the 

PSD program and that EPA must 

conduct additional rulemaking to 

establish a de minimis level before the 

BACT requirement can be applied to 

greenhouse gas emissions in PSD 

permits required for construction at 

anyway sources. Nevertheless, the 

TCEQ has communicated to the EPA 

that it ‘‘continues to pursue EPA 

approval of [its] SIP submittal . . . so 

our agency has the full authority to 

implement the greenhouse gas 

permitting program in Texas.’’ 2 The 

State has further stated that 

‘‘[r]egardless of litigation positions, we 

are currently advocating and might 

pursue in the future, we think it is 

necessary for TCEQ to assume this 

permitting role and issue PSD permits 

for greenhouse gas emissions.’’ Based on 

information supplied by TCEQ before 

the proposed rule and this additional 

assurance, EPA concludes that Texas 

intends to implement the PSD 

permitting requirements for greenhouse 

gases consistent with EPA’s 

understanding of those requirements, as 

articulated above, and that TCEQ 

continues to have sufficient legal 

authority to do so. Furthermore, TCEQ 

has provided sufficient assurance that it 

will commit the personnel and funding 

necessary to issue PSD permits 

addressing greenhouse gases, 

notwithstanding the State’s ongoing 

efforts to persuade the court that such 

permits are not required under the 

Clean Air Act until EPA conducts 

further rulemaking. EPA’s rescission of 

the majority of the FIP and its approval 

of the majority of the Texas GHG SIP are 

predicated on the understanding that 

the State of Texas will implement the 

PSD program requirements for 

greenhouse gases in accordance with 

TCEQ’s representations. 

In sum, therefore, the EPA is taking 

no action on the portion of the Texas 

SIP submittal requiring sources to 

obtain PSD permits based solely on their 

emissions of GHGs, but is otherwise 

finalizing its rescission of the majority 

of the FIP and its approval of the 

majority of the Texas SIP submittals as 

discussed in the separate final SIP 

action published elsewhere in this issue 

of the Federal Register. 

B. Changes to the Transition Process as 

a Result of the UARG v. EPA Decision 

The EPA must also consider how the 

July 23, 2014, Supreme Court decision 

in UARG v. EPA will impact our final 

FIP rescission and simultaneous SIP 

actions. In our February 18, 2014, 

proposed rulemaking we identified the 

following three possible circumstances 

for retaining federal GHG PSD 

permitting authority: (1) The EPA would 

retain permitting authority for any 

pending permit application where the 

permit applicant submitted a written 

request to remain with EPA for permit 

issuance, (2) the EPA would retain 

permitting authority for any pending 

permit applications where the permit 


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applicant did not submit a written 

request regarding permit authority and 

the EPA had made a proposed 

determination through a public-noticed 

draft permit upon the signature date of 

the EPA’s rescission of the GHG PSD 

FIP, and (3) the EPA would retain 

permitting authority over any permit 

that was issued but had not yet 

completed the administrative and 

judicial review process. In conjunction 

with our February 18, 2014, proposal we 

issued the ‘‘Transition Process for 

Pending GHG PSD Permit Applications 

and Issued GHG PSD Permits Upon 

Rescission of the GHG PSD FIP’’ (the 

Transition Process). As specified in this 

Transition Process, the EPA sent letters 

to each existing pending permit 

applicant requesting a written response 

by May 15, 2014, regarding whether 

EPA should retain responsibility for 

processing the permitting application or 

transfer it to the TCEQ. We received 

such a response by the May 15, 2014 

deadline from all of the initial GHG PSD 

permit applicants. 

Since the time of our proposed 

rulemaking, we have received 

additional GHG PSD permit 

applications. For the purposes of the 

Transition Process and our final action 

today rescinding the Texas GHG PSD 

FIP, these GHG permit applicants would 

be considered pending permit 

applications. According to our February 

18, 2014, proposed action, the EPA 

would retain authority over any of these 

permit applications where we had not 

proposed a draft permit at the time of 

final signature on the FIP rescission. 

However, because of the Supreme 

Court’s UARG v. EPA, this has created 

some delay in the issuance of a final 

action on the proposed Texas SIP 

approval and FIP rescission. As such, 

these pending permit applicants were 

not afforded the same opportunity to 

communicate with the EPA that was 

provided to the other permit 

applications, submitted to the EPA, at 

the time of our February 18, 2014, 

proposed approval. We believe it is 

appropriate to modify our retained FIP 

authorities such that the EPA will retain 

permitting authority for any pending 

permit application submitted after our 

February 18, 2014, proposal that did not 

respond in writing to the EPA by May 

15, 2014, regardless of whether the EPA 

has published public notice of a 

proposed permit. We will retain the 

permitting authority and proceed with 

our evaluation and processing of the 

permit application until the applicant 

submits a written request to be 

transferred to the TCEQ, withdraws its 

application, or the EPA issues a final 

and effective permit. 

In this circumstance, the EPA will 

consider a request for transfer to be a 

withdrawal of the application that 

removes the application from review 

and further action by EPA Region 6. As 

discussed in our February 18, 2014, 

proposed rulemaking, the EPA’s 

permitting authority ‘‘will cease upon 

an applicant’s written request to the 

EPA withdrawing the pending permit 

application before a final determination 

is made.’’ See 79 FR 9123, 9133. For 

those applications transferred to the 

TCEQ for which the EPA has not 

proposed a draft permit, the Texas SIPapproved public notice process will 

involve two opportunities for public 

comment under 30 TAC Sections 39.418 

and 39.419 for the Notice of Receipt of 

Application and Intent to Obtain Permit 

(NORI) and the Notice of Application 

and Preliminary Decision (NAPD). In 

the instances where a permit applicant 

requests that EPA transfer the permit 

application to the TCEQ and Region 6 

has already public noticed a draft 

permit, an additional public notice will 

be necessary to initiate and complete 

the permitting process in accordance 

with the process required under Texas 

procedures approved in the SIP. If the 

EPA has received any public comments 

on its draft permit, the EPA intends to 

contact each commenter to advise them 

to resubmit comments to the TCEQ 

pursuant to 30 TAC Sections 39.412 and 

55.152. 

The EPA’s Region 6 will consider 

such a request to transfer a permit 

application until the time that Region 6 

issues a final permit decision under 40 

CFR 124.15(b) of the EPA’s regulations. 

After this point in the permitting 

process, interested parties who 

commented on the draft permit will 

have 30 days to request an 

administrative appeal of the permit 

before the EPA Environmental Appeals 

Board (EAB) under 40 CFR 124.19. 

During this 30 day period, the EPA will 

retain authority over the permit and will 

no longer consider any requests to 

transfer a permit application. If no party 

petitions the EAB for review, the permit 

will become final and effective under 40 

CFR 124.15(b). At this point, Region 6 

will transfer administration of the final 

and effective permit to TCEQ. If a party 

petitions the EAB for review of a final 

permit decision by Region 6, the EPA 

will retain authority over the permit 

until administrative and judicial review 

proceedings are exhausted with one 

exception. If a petition for review has 

been filed with the EAB, the permit 

does not become final and effective, and 

EPA Region 6 will still have the 

opportunity to withdraw the permit or 

request that the EAB grant a voluntary 

remand under 40 CFR 124.19(j). An 

applicant that wishes to withdraw a 

permit under EAB review must provide 

written notice to the EAB that it is doing 

so. If an applicant wishes for Region 6 

to initiate this withdrawal process while 

administrative review of a permit is 

pending before the EAB, the applicant 

will need to communicate with Region 

6 in writing that it seeks to withdraw its 

permit application. The applicant may 

submit a new permit application to 

TCEQ after withdrawing its application 

from the EPA in this manner, but the 

EPA will not transfer a permit 

application at this point in the process. 

If a permit decision is remanded to 

Region 6 by the EAB, the permit 

applicant may also request withdrawal 

of its permit application prior to Region 

6 issuing a final permit after remand, 

but Region 6 will also not transfer a 

permit application at this point in the 

process. Once the final permit decision 

is issued under 40 CFR 124.19(i)(2), the 

EPA would retain authority under the 

FIP until the period for seeking judicial 

review has expired or any judicial 

review proceedings are completed. 

Under the UARG v. EPA decision, the 

U.S. Supreme Court stated that the EPA 

may not treat GHG as an air pollutant 

for purposes of determining whether a 

source is a major source required to 

obtain a PSD permit. Therefore, 

consistent with our understanding of 

the Supreme Court’s decision, the EPA 

will no longer process pending permit 

applications for ‘‘non-anyway’’ sources 

or modifications. The EPA will also not 

transfer the permitting authority for 

‘‘non-anyway’’ sources or modifications 

or any issued ‘‘non-anyway’’ permits to 

the TCEQ. After the completion of the 

GHG litigation in the D.C. Circuit, the 

EPA will determine the best course of 

disposition of these issued ‘‘nonanyway’’ permits. 

In summary, the EPA is finalizing 

retained permitting authority in the 

following circumstances: 

(1) The EPA will continue to be the 

permitting authority for a pending 

permit application for an ‘‘anyway’’ 

source or ‘‘anyway’’ modification where 

the permit applicant submitted a written 

request by May 15, 2014, that the EPA 

remain as the permitting authority. 

(2) The EPA will continue to be the 

permitting authority for any pending 

permit applications for ‘‘anyway’’ 

sources or ‘‘anyway’’ modifications 

submitted after the February 18, 2014, 

rulemaking. The EPA will continue to 

evaluate and process the pending permit 

applications unless the applicant 

submits a written request to transfer 


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permitting authority to TCEQ prior to 

Region 6 issuing a final permit decision 

under 40 CFR 124.15(b). 

(3) The EPA will retain authority over 

any permit for ‘‘anyway’’ sources or 

‘‘anyway’’ modifications that was issued 

by the EPA or for ‘‘anyway’’ permit 

applications denied by the EPA for 

which either the time for filing an 

administrative appeal has not expired or 

all administrative and judicial appeals 

processes have not been completed. 

Except that, the EPA will not retain 

authority over a permit if an applicant 

submits a written request to the EPA to 

withdraw the permit application while 

an administrative appeal is pending and 

Region 6 then withdraws the permit 

under 40 CFR 124.19(j) or the EAB 

grants a voluntary remand under 40 CFR 

124.19(j) or another appropriate remedy. 

III. Response to Comments 

We received comments from Air 

Alliance Houston, the Greater Houston 

Partnership (GHP), the House Bill 788 

Working Group (HB 788 Working 

Group), Sierra Club, Texas Chemical 

Council (TCC), Texas Commission on 

Environmental Quality (TCEQ), Texas 

Industry Project (TIP), the Texas Oil and 

Gas Association (TXOGA), the Texas 

Pipeline Association (TPA), and public 

citizens on our February 18, 2014 

proposal. All comments received on the 

February 18, 2014, proposed action are 

available in the public docket to this 

rulemaking. Following is our summary 

of each comment relating to the FIP 

action and our response. The EPA notes 

that the comments and our responses to 

comments that relate solely to the SIP 

action are in the separate but 

simultaneous final approval notice of 

those revisions. Comments and 

responses that relate to both actions are 

found in both final documents. 

Comment 1: The TCEQ, GHP, HB 788 

Working Group, TCC, TIP, and TPA 

submitted comments supportive of our 

proposed action and urge the EPA to 

proceed with final approval and rescind 

the associated FIP. 

Response 1: The EPA appreciates the 

support of the commenters. No changes 

have been made to the final FIP action 

as a result of these comments. 

Comment 2: The TCC encouraged the 

EPA to make the FIP rescission effective 

immediately upon approval of the SIP. 

As support, the commenters referenced 

the EPA’s final approval action of the 

Wyoming GHG PSD Program at 78 FR 

69998, November 22, 2013. 

Response 2: The EPA interprets the 

comment as a request that the EPA make 

the final approval of the rescission of 

the GHG PSD FIP and final approval of 

the GHG PSD SIP effective immediately 

upon publication in the Federal 

Register pursuant to the Administrative 

Procedure Act Section (APA), 5 U.S.C. 

Section 553(d). As explained more fully 

in Section IV of this document and in 

Comment/Response 3, the EPA finds 

that today’s final FIP action and the 

separate but simultaneous final SIP 

approval action be made effective 

immediately upon publication in the 

Federal Register. 

The EPA also wishes to clarify that 

the Wyoming action, cited in the 

comment as precedent for an immediate 

effective action, does not utilize Section 

553(d) of the APA. The EPA’s November 

22, 2013 final approval of the Wyoming 

GHG PSD Program and FIP rescission 

were both effective 30 days after 

publication in the Federal Register. 

Specifically, the Wyoming action was 

published on November 22, 2013, and 

the SIP approval and FIP rescission 

were effective on December 23, 2013. 

Comment 3: TXOGA requested that 

the final SIP approval and the FIP 

rescission be effective on the date of 

Federal Register publication rather than 

waiting 30 days after publication. TIP 

commented that the EPA should invoke 

the ‘‘good cause’’ exception in the APA 

to make the final approval and FIP 

rescission immediately effective upon 

publication. TIP suggested that using 

the good cause exception would: (1) 

‘‘level the playing field’’ between Texas 

GHG permitting and GHG permitting in 

states with EPA-approved GHG 

permitting programs; (2) provide 

economic benefits by allowing 

consolidation of air permitting for Texas 

GHG sources at the TCEQ; (3) relieve a 

restriction imposed by the FIP; and (4) 

is procedural in nature and does not 

change substantive requirements for 

GHG PSD permitting. 

Response 3: The EPA agrees that this 

is an appropriate circumstance to make 

this rule effective immediately upon 

publication, pursuant to 5 U.S.C. 

Section 553(d) of the APA. As detailed 

in Section III of the final FIP action and 

in Section III of the separate but 

simultaneous final SIP approval, we 

have determined that both the final 

rescission of the GHG PSD FIP and the 

separate but simultaneous approval of 

the GHG PSD SIP be effective 

immediately upon publication in the 

Federal Register. An immediate 

effective date is authorized under the 

APA at 5 U.S.C. Sections 553(d)(1) and 

553(d)(3). Section 553(d)(1) provides 

that rulemaking actions may become 

effective less than 30 days after 

publication if the rule ‘‘grants or 

recognizes an exemption or relieves a 

restriction,’’ and Section 553(d)(3) 

allows an effective date less than 30 

days after publication ‘‘as otherwise 

provided by the agency for good cause 

found and published with the rule.’’ 

First, an immediate effective date is 

authorized for the rescission of the GHG 

PSD FIP under Section 553(d)(1), 

because this rulemaking relieves the 

requirement that sources obtain both a 

federal permit and a state issued permit. 

The immediate effective date helps to 

relieve the restriction on TCEQ’s ability 

to issue single GHG PSD permits and 

will eliminate the dual EPA/TCEQ PSD 

permit system, which in turn, promotes 

a more efficient single permitting 

authority process. Second, we have 

determined there is ‘‘good cause’’ under 

Section 553(d)(3) to make this rule 

effective immediately because it will 

allow Texas to begin processing 

complete PSD GHG applications that 

meet the appropriate federal PSD 

requirements immediately and it will 

allow the regulated community to 

receive PSD permits containing GHG 

limits, issued by Texas, as soon as 

possible. An immediate effective date 

provides Texas with undelayed 

authority to regulate GHG emissions in 

PSD permits issued to ‘‘anyway’’ 

sources and allows Texas to become the 

sole PSD permitting authority in the 

State, except in three limited 

circumstances, as described above. In 

addition, an expedited transition of the 

GHG PSD program from the EPA to 

Texas creates a more efficient use of 

EPA and State resources, and creates 

certainty for the regulated community 

and public. The EPA and the TCEQ 

have worked closely to ensure Texas has 

adequate authority and resources to 

administer the GHG PSD permitting 

program without a 30 day delay, which 

is normally the time required for 

affected parties to adjust their behavior 

and prepare before the final rule takes 

effect. The EPA has determined that 

moving as expeditiously as practicable 

to consolidate GHG PSD permitting with 

the TCEQ PSD permitting program is 

supported here as the State has the 

authority and resources to administer 

the GHG PSD permitting program. The 

EPA finds that the above reasons 

support an effective date prior to 30 

days after the date of publication under 

5 U.S.C. Section 553(d) of the APA for 

both today’s final FIP action and the 

separate but simultaneous final SIP 

approval action. We have revised the 

effective date of our final FIP action as 

a result of these comments. 

Comment 4: The EPA should state for 

the record that GHG permits issued by 

the EPA may be amended by the TCEQ 

once permitting authority is delegated. 

Response 4: As stated in our proposed 

approval, the TCEQ submitted a letter 


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on January 13, 2014, (available in the 

docket for this rulemaking) that 

provided clarity and assurances that the 

TCEQ has the general authority under 

the Texas Clean Air Act to administer 

the EPA-issued GHG PSD permits, 

including revising or amending those 

permits in the future. Specifically, the 

‘‘TCEQ will assume full PSD 

responsibility for the administration and 

implementation of final GHG PSD 

permits issued by the EPA upon 

notification from the EPA that all 

administrative and judicial appeal 

processes have expired or have been 

completed or concluded . . . assuming 

full PSD responsibility includes the 

authority to . . . process and issue any 

and all subsequent PSD permit actions 

relating to such permits (e.g., 

amendments).’’ See 79 FR 9123, 9132. 

February 18, 2014. The EPA addresses 

the commenter’s statement about 

delegation of permitting authority in our 

separate but simultaneous final SIP 

approval also published elsewhere in 

this issue of the Federal Register. No 

changes were made to the final FIP 

action as a result of these comments. 

Comment 5: One commenter found it 

difficult to provide specific comments 

due to the pending Supreme Court 

decision on GHG and asked that the 

EPA discuss the impact, if any, of the 

pending Supreme Court decision 

around GHG. 

Response 5: See Section II of today’s 

final action for a detailed discussion. 

Although not specifically referenced in 

the comment, we believe the 

commenter’s reference to ‘‘pending 

supreme court decision around GHG’’ 

refers to the following case before the 

Supreme Court of the United States: 

Case 121146; Utility Air Regulatory 

Group v. The Environmental Protection 

Agency and consolidated cases. The 

Supreme Court of the United States 

decided this case on June 23, 2014. In 

summary, the Supreme Court affirmed 

in part and reversed in part the lower 

court’s decision on the applicability of 

the PSD Program to GHGs, rejecting the 

application of the PSD program to 

additional sources based only on GHG 

emissions but affirming the applicability 

of BACT to GHGs emitted by sources 

otherwise required to obtain PSD 

permits based on emissions of other 

pollutants. Accordingly, the decision 

has influenced our final action on the 

April 16, 2014 SIP submittal. In our 

separate but simultaneous SIP action, 

the EPA is proceeding with the 

finalization of the majority of the 

revisions to the Texas SIP. However, in 

order to proceed consistent with the 

Court’s decision, the EPA is taking no 

action at this time on portions of the 

April 16, 2014 submittal that provided 

for the permitting of ‘‘Step 2,’’ ‘‘nonanyway’’ sources. Please see our final 

separate but simultaneous SIP final 

notice for a more detailed discussion. 

Comment 6: Public citizens submitted 

several comments regarding the EPA’s 

proposed approval of the GHG PSD SIP, 

the rescission of the GHG PSD FIP, and 

the transition process to be used when 

transferring permitting authority to the 

TCEQ. Specifically, the commenters are 

concerned that the transition process is 

lacking the ‘‘voice’’ of the people on 

whether the public feels it is the right 

of the applicant/company to be able to 

choose the EPA or the TCEQ as the 

permitting authority without the 

public’s input on pending applications. 

The commenters urged the EPA to retain 

the FIP permitting authority in sensitive 

nonattainment areas such as in Brazoria 

County, Texas. Finally, the commenters 

submitted information regarding ozone 

monitor siting and air quality in Clute, 

water quality impacts in the Galveston 

Bay, and maps identifying locations of 

proposed GHG PSD permits. 

Response 6: While the EPA 

appreciates the commenter’s concerns 

about the public having a voice in the 

selection of a permit authority, we 

believe the appropriate regulatory and 

permit transition procedures are in 

place to ensure any GHG PSD permit, 

whether issued by the EPA or the TCEQ, 

complies with all federal PSD 

requirements, including opportunities 

for public input. Further, the EPA 

offered an opportunity for review and 

comment on our proposed 

determination that the TCEQ has the 

requisite authority to address GHGs in 

the PSD program in Texas upon 

approval of the SIP and corresponding 

rescission of the majority of the FIP for 

GHGs. We received no comments on 

this specific issue. In the separate, but 

simultaneous final SIP action published 

elsewhere in this issue of the Federal 

Register, we are approving the majority 

of revisions to the Texas PSD SIP, 

except with the noted exceptions where 

we are taking no action at this time on 

certain revisions that appear to no 

longer be appropriate after the Supreme 

Court’s UARG v. EPA ruling. Because of 

this, the EPA finds the TCEQ has the 

necessary legal and regulatory 

provisions in place to successfully 

implement the appropriate federal 

requirements for GHG PSD permitting. 

Therefore, we are simultaneously 

rescinding the Texas GHG PSD FIP but 

for three limited circumstances for 

retained federal permitting authority, 

and approving the majority of revisions 

to the Texas SIP in a separate but 

simultaneous final action published 

elsewhere in this issue of the Federal 

Register. Upon the effective date of both 

of these actions, the TCEQ will have the 

authority to process applications and 

issue GHG PSD permits except for the 

three limited circumstances where the 

EPA is retaining federal permitting 

authority. As stated in the EPA’s 

February 18, 2014, proposal and 

transition document referenced in that 

action, the EPA contacted each GHG 

PSD permit applicant who had 

submitted an application to the EPA at 

the time of our proposed approval. We 

provided these permit applicants the 

opportunity to elect either the EPA or 

the TCEQ as the issuer of its GHG 

permit by May 15, 2014. All permit 

applicants submitted a request for 

permitting authority by the deadline of 

May 15, 2014. For the permit 

applications that have been submitted 

since the EPA’s proposed approval, the 

EPA is retaining permitting authority 

and will continue evaluating and 

processing these permit applications 

unless and until the applicant submits 

a written request to transfer to the 

TCEQ, the EPA issues a final permit, or 

the applicant withdraws the permit 

application from the EPA’s 

consideration. The EPA Region 6 GHG 

Web site has been updated to identify 

which permit applications have been 

retained by the EPA for processing and 

those which have been transferred to the 

TCEQ. We will continue to update this 

Web site as applicants make their 

decisions regarding permitting 

authority. Upon the effective date of our 

final SIP approval and simultaneous FIP 

rescission, the EPA will no longer 

accept applications for GHG PSD 

permits in Texas. From that point 

forward, the TCEQ will be the only 

permitting authority for GHG PSD 

permits in Texas, with the exception of 

the three limited circumstances where 

the EPA retained authority over a permit 

application or issued permit that has not 

exhausted all administrative and 

judicial appeals. Both the EPA and the 

TCEQ are required to issue GHG PSD 

permits that satisfy federal requirements 

for PSD permitting. In the instances 

where a permit applicant elected to 

transfer the permitting authority to the 

TCEQ and the EPA has already public 

noticed a draft permit and received 

comments, the EPA intends to contact 

each commenter to advise them to 

resubmit comments to the TCEQ 

pursuant to 30 TAC Sections 39.412 and 

55.152. 

Second, in our separate but 

simultaneous final PSD SIP action 

published elsewhere in this issue of the 

Federal Register, we are finding the 


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TCEQ has adopted regulations sufficient 

to regulate emissions of GHGs from 

‘‘anyway’’ major emitting sources under 

the Texas PSD program. As part of the 

Texas PSD SIP approval final action, a 

GHG PSD permit application will be 

subject to the Texas SIP-approved 

public notice and comment procedures 

that are consistent with the EPA’s 

federal PSD public notice requirements 

at 40 CFR 51.166(q). For new GHG PSD 

permit applications processed by the 

TCEQ and those applications transferred 

to the TCEQ for which the EPA has not 

proposed a draft permit, the Texas SIPapproved public notice process will 

involve two opportunities for public 

comment under 30 TAC Sections 39.418 

and 39.419 for the Notice of Receipt of 

Application and Intent to Obtain Permit 

(NORI) and the Notice of Application 

and Preliminary Decision (NAPD). For 

the subset of permit applications that 

are transferred to the TCEQ after the 

EPA has already proposed a draft 

permit, these applications will either 

use the NORI and NAPD or will go 

through a Combined Public Notice 

under 30 TAC Section 39.412. 

Opportunity for public review and 

comment will be provided in all 

instances where the TCEQ is the 

permitting authority for a GHG PSD 

permit application. 

We would like to correct one 

statement from the commenter 

concerning nonattainment permitting, 

which is that the EPA should retain the 

GHG PSD FIP permitting authority in 

sensitive nonattainment areas. There are 

no GHG nonattainment areas; the EPA 

was the permitting authority only for 

GHG PSD permits. The TCEQ has been, 

and continues to be, the permitting 

authority for Nonattainment New 

Source Review (NNSR) permits in 

Texas. In Brazoria County, the EPA was 

the permitting authority for the GHG 

PSD permits but the TCEQ was the 

permitting authority for the NNSR 

permitting program and all other nonGHG PSD pollutants. 

After review and consideration of the 

additional materials submitted by the 

citizens, the EPA has determined that 

the data submitted regarding ozone 

monitors and air quality in Clute, water 

quality in Galveston Bay, and maps 

identifying locations of the proposed 

GHG PSD permit applications, are 

beyond the scope of our review and are 

not relevant to our rescission of the 

GHG PSD FIP. 

No changes were made to the final FIP 

action as a result of these comments. 

Comment 7: Several commenters 

submitted comments regarding the 

EPA’s document titled ‘‘Transition 

Process for Transferring GHG PSD 

Permitting Authority to TCEQ.’’ These 

comments are summarized below: 

A. Comments about notification to 

companies regarding the Transition 

Process: 

Æ TCC suggests that the EPA clarify 

that letters sent to applicants will not be 

mailed until the final rule has been 

published in the Texas Register, on or 

about April 17, 2014. 

Æ TCC requests that the EPA post a 

message or announcement on its Web 

site indicating that letters concerning 

the transition process have been 

submitted to any of the GHG applicants. 

B. Comments about the deadline for 

selecting a permitting authority under 

the Transition Process: 

Æ TCC suggests the EPA not impose a 

firm 30-day decision deadline because 

of concerns that permit applicants 

selecting the TCEQ as the permitting 

authority may experience delay in 

processing of applications if the FIP 

rescission is delayed. 

Æ TCC requests that the EPA clarify 

whether a permit applicant will have 

the opportunity to request additional 

time beyond 30 days to submit a 

response regarding permitting authority. 

C. Comments about the Transition 

Process for Issued Permits: TCC, TIP, 

and TXOGA requested that the EPA 

reconsider the transition process, such 

that permit applications currently being 

reviewed in the Environmental Appeals 

Board (EAB) could be transferred to 

TCEQ. 

Response 7: The EPA appreciates the 

comments on the Transition Process we 

will be using to transfer GHG PSD 

permitting authority to the TCEQ upon 

the effective date of rescission of the 

GHG PSD FIP and our simultaneous 

approval of the majority of the Texas 

GHG PSD SIP. After consideration of the 

comments and in light of the recent 

UARG v. EPA decision, we have 

determined it necessary to amend, in 

part, our Transition Process and EPA’s 

proposed retained authority under the 

FIP. Below are our specific responses to 

the comments raised regarding the 

Transition Process and how the EPA 

finds it necessary to amend, in part, our 

retained authority under today’s final 

FIP rescission. 

Response 7A: For permit applicants 

with applications submitted at the time 

of our February 18, 2014 proposal, we 

are making no changes to the Transition 

Process. The EPA has provided 

adequate notice to those initial permit 

applicants regarding the Transition 

Process. The EPA mailed letters to each 

GHG permit applicant on file with the 

EPA on March 27, 2014, requesting a 

response no later than May 15, 2014. 

Those letters are available for public 

access in the docket for this rulemaking 

action. By communicating with our 

initial permit applicants immediately 

following the March 26, 2014 TCEQ 

Commissioners vote to adopt the GHG 

PSD revisions, we provided our initial 

permit applicants with a reasonable 

amount of time to weigh individual 

business considerations and respond 

with a permitting authority request. The 

letters were delivered to the applicants 

via the U.S. Postal delivery and email, 

ensuring multiple means of 

communication with each applicant. 

Additionally, our Region 6 GHG Web 

site was updated to indicate the 

availability for review and comment on 

the EPA’s proposed approval of the 

Texas GHG PSD SIP, rescission of the 

Texas GHG PSD FIP, and Transition 

Process. No changes were made to the 

final FIP action as a result of these 

comments. 

The EPA recognizes that since the 

time of our proposed rulemaking, we 

have received additional permit 

applications and those permit 

applicants were not afforded a similar 

opportunity to select a permitting 

authority by the May 15, 2014, deadline 

specified in the Transition Process. For 

these permit applications submitted 

after the February 18, 2014, proposal, 

the EPA is retaining the permitting 

authority until the EPA either issues a 

final permit and all subsequent 

administrative and judicial appeals are 

exhausted, or the applicant submits a 

written request to be transferred to the 

TCEQ, or the applicant withdraws the 

permit application from the EPA’s 

consideration. 

Response 7B: The EPA does not 

believe it is necessary to extend the 

deadline for requesting a transfer of 

permitting authority beyond the May 15, 

2014 deadline, as specified in our 

Transition Process for the initial permit 

applications that were submitted at the 

time of our February 18, 2014 proposed 

action. We received written permit 

authority requests from all permit 

applicants, submitted to the EPA, at the 

time of the proposed notice by the 

specified May 15, 2014, deadline. 

However, in consideration of these 

comments and in light of the UARG v. 

EPA decision, we have decided that for 

any permit application that was 

submitted after our proposed 

rulemaking, the EPA will retain 

permitting authority and continue to 

process and evaluate any pending 

permit application for an ‘‘anyway’’ 

source or modification unless or until 

the applicant submits a written request 

to transfer the authority to the TCEQ or 

the applicant withdraws the application 

from the EPA’s consideration. There is 


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3 ‘‘[W]e interpret the CAA to require an 

opportunity for judicial review of a decision to 

grant or deny a PSD permit, whether issued by EPA 

or by a State under a SIP-approved or delegated 

PSD program. See 61 FR 1880, 1882 (Jan. 24, 1996) 

(EPA’s proposed disapproval of Virginia’s PSD 

program SIP revision due to State law standing 

requirements that limited judicial review); 72 FR 

72617, 72619 (December 21, 2007) (in approving 

South Dakota’s PSD program, EPA stated: ‘‘We 

interpret the statute and regulations to require at 

minimum an opportunity for state judicial review 

of PSD permits’’).’’ 77 FR at 65307. 

4Clarification Letter from Mr. Richard A. Hyde, 

P.E., Executive Director, TCEQ to Mr. Ron Curry, 

Regional Administrator, EPA Region 6 (May 30, 

2014) (hereinafter ‘‘Judicial Review Clarification 

Letter’’. This letter is available in the docket for this 

rulemaking. 

5Tex. Air Control Bd. v. Travis Cnty, 502 SW.2d 

213, 215 (Tex. Civ. App.-Austin 1973, no writ); see 

also, Sproles Motor Freight Line, Inc. v. Smith, 130 

SW.2d 1087, 1088 (Tex. Civ. App.-Austin 1939, writ 

ref d). 

no 30-day time period for decision 

imposed on these permit applicants. 

Rather the applicant can make an 

informed business decision through 

consultation with the EPA and the 

TCEQ, up until the EPA has issued a 

final permit. The EPA’s retained 

authority under the FIP was revised as 

a result of these comments. 

Response 7C: At this time, we intend 

to transfer all initial permit applications 

and related materials to the TCEQ where 

a permit applicant requested the transfer 

in writing by May 15, 2014, as specified 

in the Transition Process. Additionally, 

as discussed above in Responses 6A and 

6B, for any permit application 

submitted after our February 18, 2014, 

proposed rulemaking, the EPA will 

transfer the permit application and 

related materials to the TCEQ where the 

permit applicant submits a written 

request to the EPA to transfer to the 

TCEQ. The EPA will confirm the 

transfer of the permit application by 

providing a letter to the TCEQ and the 

permit applicant wherein we transfer 

the permit application, related 

materials, and state that we consider the 

request for transfer a withdrawal of the 

application that removes the application 

from review and further action by the 

EPA. As discussed in our February 18, 

2014, proposed rulemaking, the EPA’s 

permitting authority ‘‘will cease upon 

an applicant’s written request to the 

EPA withdrawing the pending permit 

application before a final determination 

is made.’’ See 79 FR 9123, 9133. A final 

determination on the permit is made 

when all administrative and judicial 

appeals processes have been exhausted. 

The EPA will retain permitting 

authority for ‘‘anyway’’ GHG PSD 

permits that are issued or for ‘‘anyway’’ 

permit applications denied by the EPA 

for which either the time for filing an 

administrative appeal has not expired or 

all administrative and judicial appeals 

processes have not been completed. As 

stated in our Transition Process, a GHG 

PSD permit applicant has the ability to 

withdraw the permit application before 

the EPA and submit a new application 

to the TCEQ at any time until the permit 

becomes final. Because a permit does 

not become final until agency review 

procedures are exhausted, an applicant 

can withdraw an application while a 

permit is under EAB review. No changes 

were made to the final FIP action as a 

result of these comments, but we have 

modified the authority retained by EPA 

in the FIP for certain permit 

applications for other reasons. 

Comment 8: Sierra Club submitted 

several comments and supporting 

exhibits requesting that the EPA not 

approve the GHG PSD SIP and rescind 

the FIP until the TCEQ submits 

clarifications regarding access to 

judicial review for GHG PSD permits. 

First, Sierra Club commented that if the 

commission acts on a GHG permit, then 

the Texas regulations appear to require 

a party to go through the contested case 

hearing process in order to exhaust 

administrative remedies, which is 

necessary to later seek judicial review. 

However, HB 788 removes the 

opportunity for a contested case hearing 

for GHG permits. As a result, the TCEQ 

has not adequately clarified the process 

to exhaust all administrative remedies 

before seeking judicial review when the 

commission acts on a GHG permit. 

Response 8: Because judicial review 

of PSD permits is important and 

necessary under the Act, we have 

reevaluated the Texas judicial review 

process as it applies to GHG PSD 

permits issued by the TCEQ. 77 FR 

65305, at 65307 (Oct. 26, 2012).3 The 

TCEQ provided a letter to the EPA dated 

May 30, 2014 4 to clarify the judicial 

review process and the associated 

administrative remedies with respect to 

the GHG PSD permits issued by Texas. 

This letter explains the processes to 

exhaust administrative remedies and 

confirms that Texas law provides an 

opportunity for judicial review of all 

GHG PSD permits issued by the TCEQ. 

Texas regulations do not require a party 

to go through the contested case hearing 

process in order to exhaust 

administrative remedies when the 

commission acts on a GHG permit. 

Section 50.119(b) provides that ‘‘[i]f the 

commission acts on an application, 

§ 80.272 [Motion for Rehearing] of this 

title applies.’’ Further, Section 

50.119(c)(3) provides that motions for 

rehearing may be filed on ‘‘the 

commission’s decision on an 

application.’’ Section 80.272 is a 

procedural provision that sets out the 

process for filing a motion for rehearing 

after the commission makes a decision 

on a permit. State law allows the TCEQ 

to establish a motion for rehearing via 

regulation, even when there is no 

statutory right to a contested case 

hearing.5 Section 50.119(c) does not 

require a contested case hearing for a 

motion for rehearing to be available. We 

recognize that the judicial review 

process under Texas law differs from 

the administrative and judicial review 

processes available for PSD permit 

decisions under 40 CFR Part 124 

(opportunity to petition for 

administrative review by the EPA’s 

Environmental Appeals Board (EAB)) 

and section 307(b) of the CAA 

(opportunity to seek review before the 

federal Circuit Court of Appeals) when 

the EPA or a delegated agency under 40 

CFR 52.21 is the PSD permit issuer. 

However, the CAA does not require that 

the process for judicial review of the 

grant or denial of a PSD permit issued 

under a SIP approved PSD program be 

identical to that provided when the EPA 

or a delegated agency is the PSD permit 

issuer under 40 CFR 52.21. 77 FR 65305 

at 65307 (Oct. 26, 2012). No revisions 

were made to the final FIP action as a 

result of this comment. 

IV. Effective Date of Final Action 

The EPA has determined that today’s 

final FIP action and the separate but 

simultaneous final approval of the 

majority of the Texas GHG PSD SIP are 

effective immediately upon publication 

under 5 U.S.C. Section 553(d) of the 

APA. The expedited effective date for 

this final FIP action and the separate but 

simultaneous SIP approval action is 

authorized under both 5 U.S.C. Section 

553(d)(1) and 553(d)(3) of the APA. 

Section 553(d)(1) allows an effective 

date less than 30 days after publication 

if a substantive rule relieves a 

‘‘restriction.’’ Section 553(d)(3) allows 

an effective date less than 30 days after 

publication ‘‘as otherwise provided by 

the agency for good cause found and 

published with the rule.’’ The EPA has 

determined that it is appropriate to 

make both final actions effective upon 

publication because the final removal of 

the Texas GHG PSD FIP and the 

separate but simultaneous final 

approval of the majority of Texas GHG 

PSD SIP will both relieve a permitting 

restriction and there is ‘‘good cause’’ to 

allow Texas to begin processing PSD 

GHG applications that meet the 

appropriate federal PSD requirements 

immediately. Final immediate action 

relieves a restriction by promoting an 

efficient single GHG permit process, 

supports an efficient use of EPA and 


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State resources, and creates certainty for 

the regulated community and public. It 

provides Texas with undelayed 

authority to regulate major GHG 

emitting sources, and the EPA and 

TCEQ have worked closely to ensure the 

State has adequate authority and 

resources to administer the GHG 

permitting program without a 30 day 

delay, which is normally the time 

required for affected parties to adjust 

their behavior and prepare before a final 

rule takes effect. The EPA has 

determined that moving as 

expeditiously as practicable to 

consolidate GHG PSD permitting with 

the TCEQ is consistent with the State’s 

authority and resources to administer 

the GHG PSD permitting program. The 

EPA finds that the above reasons 

support an effective date prior to thirty 

days after the date of publication under 

5 U.S.C. Section 553(d) for both today’s 

final FIP action and the separate but 

simultaneous final SIP approval action 

by establishing good cause for making 

the rule immediately effective and 

demonstrating that the rule relieves a 

restriction. 

V. Final Action 

The EPA is rescinding the GHG PSD 

FIP for Texas at 40 CFR 52.2305(a) and 

(b), with three limited circumstances for 

retained authority for ‘‘anyway’’ source 

permit applications as specified in the 

new section of 40 CFR 52.2305(d). First, 

the EPA retains GHG PSD permitting 

authority for any pending ‘‘anyway’’ 

permit applications where the permit 

applicant submitted a written request to 

remain with the EPA for permit 

issuance by the deadline specified in 

our Transition Process. Second, the EPA 

will retain GHG PSD permitting 

authority for ‘‘anyway’’ source permit 

applications submitted after February 

18, 2014, unless or until the applicant 

submits a written request transferring 

the permitting authority to the TCEQ. 

Finally, the EPA will retain GHG PSD 

permitting authority for any issued 

‘‘anyway’’ permit or ‘‘anyway’’ permit 

application denied by the EPA for 

which either the time for filing an 

administrative appeal has not expired or 

all administrative and judicial appeals 

processes have not been completed by 

the publication date of the EPA’s final 

actions to rescind the GHG FIP and 

simultaneously approve the TCEQ’s 

PSD SIP submittal. Note, even for those 

cases where the EPA announces it will 

retain GHG PSD permitting authority 

over an ‘‘anyway’’ application, this 

authority will cease upon an applicant’s 

written request to the EPA withdrawing 

the pending permit application before a 

final determination is made. The EPA 

Region 6 GHG Web site identifies the 

permit applications where the EPA 

retains GHG permitting authority. We 

intend to update this Web site as we 

process the pending permit applications 

and transfer the issued permits to the 

TCEQ for implementation. When all 

permit applications have been 

processed and transferred to the TCEQ, 

the EPA will, in a separate action, revise 

40 CFR 52.2305 to remove the 

remaining GHG PSD FIP authority at 

§ 52.2305(a) and (b). 

Consistent with the UARG v. EPA 

decision, the EPA does not find it 

appropriate at this time to act on 

revisions to the Texas SIP providing the 

authority to regulate and permit non- 

‘‘anyway’’ sources and modifications of 

GHGs. Therefore, the EPA will not 

transfer issued non-‘‘anyway’’ source 

permits to the TCEQ. The EPA will also 

not continue to process or evaluate 

pending permit applications for ‘‘nonanyway’’ sources or modifications. 

Our final action today also finds that 

through a letter dated January 13, 2014, 

the TCEQ has provided necessary and 

adequate assurances that the Texas PSD 

program will be revised in the future to 

address pollutants that become newly 

regulated under the CAA after January 

2, 2011, and that the TCEQ has the 

adequate authority under State law to 

regulate any new PSD pollutants. 

Therefore, the EPA rescinds the PSD FIP 

for Newly Regulated Pollutants for 

Texas at 40 CFR 52.2305(c). 

As explained in our February 18, 2014 

proposal (see 79 FR 9123), this action is 

made possible because of our separate 

but simultaneous final action being 

published elsewhere in this issue of the 

Federal Register to approve the majority 

of the Texas PSD SIP revisions, which 

updates the Texas SIP to provide for the 

regulation of GHG emissions for 

‘‘anyway’’ sources, and clarifies the 

applicability of BACT for all PSD permit 

applications. The EPA has made the 

determination that the majority of 

revisions to the Texas SIP are 

approvable because the revisions meet 

all applicable requirements of the CAA, 

and EPA implementing regulations that 

were not affected by the recent U.S. 

Supreme Court decision in UARG v. 

EPA. We noted that we are taking no 

action at this time other certain 

revisions that appear to no longer be 

needed in light of that decision. The 

EPA also has determined under the 

authority of 5 U.S.C. Section 553(d) of 

the APA, to make this final FIP action 

and the separate but simultaneous final 

PSD SIP approval action effective upon 

November 10, 2014. Upon the effective 

date of today’s final FIP action and the 

separate but simultaneous final PSD SIP 

approval, the TCEQ will immediately 

assume responsibility for GHG PSD 

permitting, with the exception of the 

three limited circumstances where the 

EPA is retaining GHG PSD permitting 

authority under the FIP, as described 

this final FIP action. As such, all new 

GHG PSD permit applications will be 

submitted to and processed by the 

TCEQ. 

The EPA is finalizing this action 

under Section 110 and Part C of the Act. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This FIP withdrawal action is not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866 (58 

FR 51735, October 4, 1993) and is 

therefore not subject to review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011). 

B. Paperwork Reduction Act 

This FIP withdrawal action does not 

impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. because this partial FIP 

rescission under Section 110 and Part C 

of the CAA will not in-and-of itself 

create any new information collection 

burdens but simply transfers the 

permitting authority from EPA to the 

State. Burden is defined at 5 CFR 

1320.3(b). Because this final action does 

not impose an information collection 

burden, the Paperwork Reduction Act 

does not apply. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. This rule will transfer the 

majority of GHG PSD permitting 

responsibility from the EPA to the State 

of Texas. This final rule applies to large 

emitters of GHGs that tend to be large 

sources. The result of this final action, 

however, simply is to transfer the 

majority of authority to administer the 

PSD program for GHGs from EPA to the 

State of Texas and does not create any 

new requirements. The substantive 

requirement for a source to obtain a PSD 

permit prior to construction of a new 

major source of GHGs or modification of 

an existing major source that will 

significantly increase GHGs is not 

changed by this final FIP action. This 


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66650 Federal Register / Vol. 79, No. 217 / Monday, November 10, 2014 / Rules and Regulations 

final FIP action will not impose any 

new requirements on small entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. This action removes the 

majority of a Federal plan and transfers 

most permitting responsibility of GHG 

emissions from the EPA to the State of 

Texas. Small governments are not 

impacted. 

E. Executive Order 13132: Federalism 

This FIP withdrawal action does not 

have federalism implications. It will not 

have substantial direct effects on Texas, 

on the relationship between the national 

government and the State of Texas, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between the 

EPA and State and local governments, 

the EPA specifically solicited comment 

on the proposed action from State and 

local officials. The EPA received no 

adverse comments from state or local 

governments on this rulemaking but 

only comments in support from the 

State. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). In this action, the EPA is not 

addressing any Tribal Implementation 

Plans. This action is limited to the 

withdrawal of the majority of the Texas 

GHG PSD FIP. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because the EPA is withdrawing the 

majority of the federal GHG PSD FIP in 

Texas as authorized by the CAA. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

This final rule does not provide the 

EPA with the discretionary authority to 

address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898 (59 FR 7629, 

February 16, 1994). 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. The CRA allows the issuing 

agency to make a rule effective sooner 

than otherwise provided by the CRA if 

the agency makes a good cause finding 

that notice and comment rulemaking 

procedures are impracticable, 

unnecessary or contrary to the public 

interest (5 U.S.C. 808(2)). The EPA has 

made a good cause finding for this rule 

as discussed in Section IV (Effective 

Date of Final Action), including the 

basis for that finding. 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by January 9, 2015. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2); 5 U.S.C. 7607(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: October 30, 2014. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency amends 40 CFR Part 52 as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart SS—Texas 

■ 2. Section 52.2305 is amended by 

removing and reserving paragraph (c) 

and by adding paragraph (d) to read as 

follows. 

§ 52.2305 What are the requirements of the 

Federal Implementation Plan (FIP) to issue 

permits under the Prevention of Significant 

Deterioration requirements to sources that 

emit greenhouse gases? 

* * * * * 

(d) The authority provided in 

paragraphs (a) and (b) of this section is 

rescinded except in the three limited 

circumstances described in paragraphs 

(d)(1) through (3) of this section: 

(1) The EPA will retain permitting 

authority for all GHG PSD permit 

applications for major sources and 

major modifications required to obtain 

PSD permits because of emissions of 

pollutants other than GHGs submitted to 

the EPA where the permit applicant 

submitted a written request by May 15, 

2014, that the EPA continue processing 

the application. 

(2) The EPA will retain permitting 

authority for all GHG PSD permit 

applications for major sources and 

major modifications required to obtain 

PSD permits because of emissions of 

pollutants other than GHGs submitted to 

the EPA after February 18, 2014, unless 

and until the applicant submits to the 

EPA a written request to transfer the 

permitting authority to TCEQ (or 

withdraws the application) prior to 

issuance of a final permit decision 

under 40 CFR 124.15(b). 

(3) The EPA will retain permitting 

authority for GHG PSD permits issued 

by the EPA for major sources and major 

modifications required to obtain PSD 

permits because of emissions of 

pollutants other than GHGs and GHG 

PSD permit applications denied by the 

EPA for major sources and major 


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Federal Register / Vol. 79, No. 217 / Monday, November 10, 2014 / Rules and Regulations 66651 

modifications required to obtain PSD 

permits because of emissions of 

pollutants other than GHGs for which 

either the time for filing an 

administrative appeal has not expired or 

all administrative and judicial appeals 

processes have not been completed by 

November 10, 2014. Except that the EPA 

will not retain authority over a permit 

if an applicant submits a written request 

to the EPA to withdraw the permit 

application while an administrative 

appeal is pending and the Regional 

Administrator then withdraws the 

permit under 40 CFR 124.19(j) or the 

Environmental Appeals Board grants a 

voluntary remand under 40 CFR 

124.19(j) or another appropriate remedy. 

[FR Doc. 2014–26315 Filed 11–7–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2014–0140, FRL–9918–97– 

Region 10] 

Approval and Promulgation of 

Implementation Plans; Alaska: 

Infrastructure Requirements for the 

1997 and 2006 Fine Particulate Matter 

and 2008 Ozone National Ambient Air 

Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is approving the 

Alaska State Implementation Plan (SIP) 

as meeting specific infrastructure 

requirements of the Clean Air Act (CAA) 

for the National Ambient Air Quality 

Standards (NAAQS) promulgated for 

fine particulate matter (PM2.5) on July 

18, 1997 and October 17, 2006, and for 

ozone on March 12, 2008. Whenever a 

new or revised NAAQS is promulgated, 

the CAA requires states to submit a plan 

for the implementation, maintenance 

and enforcement of such NAAQS. The 

plan is required to address basic 

program elements, including but not 

limited to regulatory structure, 

monitoring, modeling, legal authority, 

and adequate resources necessary to 

implement, maintain, and enforce the 

standards. These elements are referred 

to as infrastructure requirements. 

DATES: This final rule is effective on 

December 10, 2014. 

ADDRESSES: The EPA has established a 

docket for this action under Docket 

Identification No. EPA–R10–OAR– 

2014–0140. All documents in the docket 

are listed on the http://

www.regulations.gov Web site. Although 

listed in the index, some information 

may not be publicly available, i.e., 

Confidential Business Information or 

other information the disclosure of 

which is restricted by statute. Certain 

other material, such as copyrighted 

material, is not placed on the Internet 

and will be publicly available only in 

hard copy form. Publicly available 

docket materials are available either 

electronically through http://

www.regulations.gov or in hard copy at 

EPA Region 10, Office of Air, Waste, 

and Toxics, AWT–150, 1200 Sixth 

Avenue, Seattle, Washington 98101. The 

EPA requests that you contact the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kristin Hall at: (206) 553–6357, 

hall.kristin@epa.gov, or the above EPA, 

Region 10 address. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us’’ or ‘‘our’’ is used, it is 

intended to refer to the EPA. 

Information is organized as follows: 

Table of Contents 

I. Background 

II. Response to Comment 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

Section 110 of the CAA specifies the 

general requirements for states to submit 

SIPs to implement, maintain and 

enforce the NAAQS and the EPA’s 

actions regarding approval of those SIPs. 

On July 9, 2012 and March 29, 2011, 

Alaska made SIP submissions to the 

EPA demonstrating that the Alaska SIP 

meets the infrastructure requirements of 

the CAA for the 1997 PM2.5, 2006 PM2.5, 

and 2008 ozone NAAQS. On July 16, 

2014, we proposed approval of the 

Alaska SIP as meeting the following 

CAA section 110(a)(2) infrastructure 

elements for the 1997 PM2.5, 2006 PM2.5, 

and 2008 ozone NAAQS: (A), (B), (C), 

(D)(ii), (E), (F), (H), (J), (K), (L), and (M) 

(79 FR 41496). We also proposed 

approval of the Alaska SIP as meeting 

the requirements of CAA section 

110(a)(2)(D)(i)(II) as it applies to 

prevention of significant deterioration 

and visibility for the 2006 PM2.5 and 

2008 ozone NAAQS. In addition, we 

proposed approval of the Alaska SIP as 

meeting the requirements of CAA 

section 110(a)(2)(G) for the 2008 ozone 

NAAQS. 

An explanation of the CAA 

requirements and implementing 

regulations that are met by these SIP 

submissions, a detailed explanation of 

the submissions, and the EPA’s reasons 

for the proposed action were provided 

in the notice of proposed rulemaking on 

July 16, 2014, and will not be restated 

here (79 FR 41496). Below we address 

a recent court decision related to the 

application of PSD permitting 

requirements to greenhouse gases 

(GHGs) and why we believe the decision 

does not impact this action. 

With respect to CAA section 

110(a)(2)(C) and (J), the EPA interprets 

the CAA to require each state to make 

an infrastructure SIP submission for a 

new or revised NAAQS that 

demonstrates that the state has a 

complete PSD permitting program 

meeting the current requirements for all 

regulated NSR pollutants. The 

requirements of CAA section 

110(a)(2)(D)(i)(II) may also be satisfied 

by demonstrating the state has a 

complete PSD permitting program 

correctly addressing all regulated NSR 

pollutants. Alaska has shown that it 

currently has a PSD program in place 

that covers all regulated NSR pollutants, 

including GHGs. 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S.Ct. 2427. The Supreme Court said 

that the EPA may not treat GHGs as an 

air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit. 

The Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

the EPA is not continuing to apply the 

EPA regulations that would require that 

SIPs include permitting requirements 

that the Supreme Court found 

impermissible. Specifically, the EPA is 

not applying the requirement that a 

state’s SIP-approved PSD program 

require that sources obtain PSD permits 

when GHGs are the only pollutant (i) 

that the source emits or has the 

potential to emit above the major source 

thresholds, or (ii) for which there is a 

significant emissions increase and a 

significant net emissions increase from 

a modification (e.g. 40 CFR 

51.166(b)(48)(v)). 

The EPA anticipates a need to revise 

federal PSD rules in light of the 


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