1 MEMORANDUM TO THE DOCKET

SUBJECT: Proposed Regulatory Text Language for PSD Thresholds

DATE: May 8, 2012

The purpose of this memorandum is to ma ke available potential regulatory text language to make clear that th e prevention of significant dete rioration (PSD) applicability thresholds for greenhouse gases (GHG) establ ished in the Tailoring Rule would continue to apply were EPA to regulate GHGs under th e proposed “Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units,” 77 Fed. Reg. 22392 (April 13, 2012). It is EP A’s position that the proposed preamble contains sufficient description of th e intended regulatory changes to make clear that the Tailoring Rule applicability thres holds would continue to apply, so that regulatory text is not required as part of the proposal. Nevertheless, EPA made reference in the preamble to the inclus ion of regulatory text but none was provided. Pending the receipt of public comment, therefore, this memo includes rule language that could be included in the final rule on this point.

1. Background

In section VI of this proposed rulema king, entitled “Implications for PSD and Title V Programs,” EPA explains that alt hough this rulemaking would, for the first time, regulate GHGs under Clean Air Act (CAA) s ection 111, and although EPA’s regulations for the PSD program provide that regula tion of GHGs under CAA section 111 triggers PSD applicability, “today’s proposal s hould not require any additional [state implementation plan (SIP)] revisions to make clear that the Tailoring Rule thresholds ... continue to apply to the PSD program.” 77 Fed. Reg. 22,428/2.

This preamble further states, “in toda y’s proposal, the EPA is including a provision in the CAA section 111 regulations that confirms this interpretation.” Id. The preamble adds:

To clarify and confirm that the Tailo ring Rule thresholds apply to the section 111 prong of the definition of regulated NSR pollutant, in this proposed rulemaking, the EPA is proposing to revise the NSPS regulations, although not the PSD regulati ons, to explicitly make clear that the NSPS trigger provision in the PS D regulations incorporate[s] the Tailoring Rule thresholds.

However, the text of this proposed revisi on to the NSPS regulations was inadvertently omitted from the notice of proposed rulemaking.

2. Text of draft regulatory text2 The following is the text of this pr oposed revision to the NSPS regulations:

Subpart A of 40 CFR part 60 is prop osed to be revised by adding the following at the end thereof:

Section 60.19A. PSD Thres holds for Greenhouse Gases.

(a). For purposes of 40 CFR 51.166(b)( 49)(ii), with respect to greenhouse gas emissions from new electric utility generating units, the “pollutant that is subject to the standard promulga ted under section 111 of the Act” shall be considered to be the pollutant th at otherwise is subject to regulation under the Act as defined in 40 CFR 51.166(b)(48) and in any State Implementation Plan approved by the EPA that is interpreted to incorporate, or specifically incorporates, 40 CFR 51.166(b)(48).

(b). For purposes of 40 CFR 52.21(b)( 50)(ii), with respect to greenhouse gas emissions from new electric utility generating units, the “pollutant that is subject to the standard promulga ted under section 111 of the Act” shall be considered to be the pollutant th at otherwise is subject to regulation under the Act as defined in 40 CFR 52.21(b)(49).