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82536 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2009-0517; FRL-9244-9]

RIN 2060-AQ62

Limitation of Approval of Prevention of

Significant Deterioration Provisions

Concerning Greenhouse Gas EmittingSources in State Implementation

Plans; Final Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final Rule.

SUMMARY: This action is another in a

series of steps EPA is taking to

implement the Prevention of Significant

Deterioration (PSD) program for

greenhouse gas (GHG)-emitting sources.

EPA is finalizing its proposed

rulemaking to narrow its previous

approval of State Implementation Plan

(SIP) PSD programs in 24 states that

apply to GHG-emitting sources.

Specifically, EPA is withdrawing its

previous approval of those programs to

the extent they apply PSD to GHGemitting sources below the thresholds in

the final Tailoring Rule, which EPA

promulgated by Federal Register notice

dated June 3, 2010. Having narrowed its

prior approval, EPA asks that each

affected state withdraw from EPA

consideration the part of its SIP that is

no longer approved. The states for

whose SIPs EPA is narrowing approval

are: Alabama, California, Colorado,

Georgia, Indiana, Iowa, Louisiana,

Maine, Maryland, Mississippi, Missouri,

New Hampshire, New Mexico, North

Carolina, Ohio, Oklahoma, Rhode

Island, South Carolina, South Dakota,

Tennessee, Utah, Vermont, Virginia, and

Wisconsin.

DATES: This action is effective on

December 30, 2010.

ADDRESSES: EPA has established a

docket for this rulemaking under Docket

ID No. EPA-HQ-OAR-2009-0517. All

documents in the docket are listed in

the http://www.regulations.gov index.

Although listed in the index, some

information is not publicly available,

e.g., 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.

Publicly available docket materials are

available either electronically in http://

www.regulations.gov or in hard copy at

the EPA Docket Center EPA/DC, EPA

West, Room 3334, 1301 Constitution

Avenue, Northwest, Washington, DC.

The Public Reading Room is open from

8:30 a.m. to 4:30 p.m., Monday through

Friday, excluding legal holidays. The

telephone number for the Public

Reading Room is (202) 566-1744, and

the telephone number for the EPA

Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr.

Michael S. Brooks, Air Quality Policy

Division, Office of Air Quality Planning

and Standards (C504-01),

Environmental Protection Agency,

Research Triangle Park, NC 27711;

telephone number: (919) 541-3539; fax

number: (919) 541-5509; e-mail

address: brooks.michaels@epa.gov.

SUPPLEMENTARY INFORMATION: For

information related to a specific state,

local, or tribal permitting authority,

please contact the appropriate EPA

regional office:

EPA regional office Contact for regional office (person, mailing address, tele- Permitting authority phone number)

I ................................... Dave Conroy, Chief, Air Programs Branch, EPA Region 1, Connecticut, Massachusetts, Maine, New Hampshire,

5 Post Office Square, Suite 100, Boston, MA 02109- Rhode Island, and Vermont.

3912, (617) 918-1661.

II .................................. Raymond Werner, Chief, Air Programs Branch, EPA Re- New Jersey, New York, Puerto Rico, and Virgin Islands.

gion 2, 290 Broadway, 25th Floor, New York, NY

10007-1866, (212) 637-3706.

III ................................. Kathleen Anderson, Chief, Permits and Technical Assess- District of Columbia, Delaware, Maryland, Pennsylvania,

ment Branch, EPA Region 3, 1650 Arch Street, Phila- Virginia, and West Virginia.

delphia, PA 19103-2029, (215) 814-2173.

IV ................................. Lynorae Benjamin Chief, Regulatory Development Sec- Alabama, Florida, Georgia, Kentucky, Mississippi, North

tion, Air, Pesticides and Toxics Management Division, Carolina, South Carolina, and Tennessee.

EPA Region 4, Atlanta Federal Center, 61 Forsyth

Street, SW, Atlanta, GA 30303-3104, (404) 562-9040.

V .................................. J. Elmer Bortzer, Chief, Air Programs Branch (AR-18J), Illinois, Indiana, Michigan, Minnesota, Ohio, and WisEPA Region 5, 77 West Jackson Boulevard, Chicago, IL consin.

60604-3507, (312) 886-1430.

VI ................................. Jeff Robinson, Chief, Air Permits Section, EPA Region 6, Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.

Fountain Place 12th Floor, Suite 1200, 1445 Ross Avenue, Dallas, TX 75202-2733, (214) 665-6435.

VII ................................ Mark Smith, Chief, Air Permitting and Compliance Branch, Iowa, Kansas, Missouri, and Nebraska.

EPA Region 7, 901 North 5th Street, Kansas City, KS

66101, (913) 551-7876.

VIII ............................... Carl Daly, Unit Leader, Air Permitting, Monitoring & Mod- Colorado, Montana, North Dakota, South Dakota, Utah,

eling Unit, EPA Region 8, 1595 Wynkoop Street, Den- and Wyoming.

ver, CO 80202-1129, (303) 312-6416.

IX ................................. Gerardo Rios, Chief, Permits Office, EPA Region 9, 75 Arizona, California, Hawaii and the Pacific Islands, Indian

Hawthorne Street, San Francisco, CA 94105, (415) Country within Region 9 and Navajo Nation, and Ne972-3974. vada.

X .................................. Nancy Helm, Manager, Federal and Delegated Air Pro- Alaska, Idaho, Oregon, and Washington.

grams Unit, EPA Region 10, 1200 Sixth Avenue, Suite

900, Seattle, WA 98101, (206) 553-6908.
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

I. General Information Entities potentially affected by this meet the applicability thresholds set

A. Does this action apply to me? rule also include sources in all industry forth in the Tailoring Rule. The majority

groups, which have a direct obligation of entities potentially affected by this

Entities potentially affected by this under the Clean Air Act (CAA) to obtain action are expected to be in the

rule include states, local permitting a PSD permit for GHGs for projects that following groups:

authorities, and tribal authorities.

Industry Group NAICSa

A g riculture , fishing , and hunting ............................................................... 11.

M in in g ....................................................................................................... 2 1 . Utilities (electric, natural gas, other systems) .......................................... 2211, 2212, 2213.

Manufacturing (food, beverages, tobacco, textiles, leather) .................... 311, 312, 313, 314, 315, 316.

W ood product, paper m anufacturing ........................................................ 321, 322.

Petroleum and coal products manufacturing ........................................... 32411, 32412, 32419.

Chem ical manufacturing ........................................................................... 3251, 3252, 3253, 3254, 3255, 3256, 3259.

Rubber product m anufacturing ................................................................. 3261, 3262.

Miscellaneous chemical products ............................................................. 32552, 32592, 32591, 325182, 32551.

Nonmetallic mineral product manufacturing ............................................. 3271, 3272, 3273, 3274, 3279.

Primary and fabricated metal manufacturing ........................................... 3311, 3312, 3313, 3314, 3315, 3321, 3322, 3323, 3324, 3325, 3326,

3327, 3328, 3329.

Machinery manufacturing ......................................................................... 3331, 3332, 3333, 3334, 3335, 3336, 3339.

Computer and electronic products manufacturing ................................... 3341, 3342, 3343, 3344, 3345, 4446.

Electrical equipment, appliance, and component manufacturing ............ 3351, 3352, 3353, 3359.

Transportation equipment manufacturing ................................................. 3361, 3362, 3363, 3364, 3365, 3366, 3366, 3369.

Furniture and related product manufacturing ........................................... 3371, 3372, 3379.

M iscellaneous m anufacturing ................................................................... 3391, 3399.

Waste management and remediation ...................................................... 5622, 5629.

Hospitals/Nursing and residential care facilities ....................................... 6221, 6231, 6232, 6233, 6239.

Personal and laundry services ................................................................. 8122, 8123.

R esidential/private households ................................................................. 8141.

Non-Residential (Commercial) ................................................................. Not available. Codes only exist for private households, construction,

and leasing/sales industries.

aNorth American Industry Classification System.

B. How is this preamble organized?

The information presented in this

preamble is organized as follows:

Outline

I. General Information

A. Does this action apply to me?

B. How is this preamble organized?

II. Overview of the Final Rule

III. Proposed Rule

IV. Final Rule

A. Action

B. Legal Basis

C. Legal Mechanisms for EPA Action

V. Comments and Responses

A. Comments Regarding the Legal

Mechanism for the Current Action

B. Comments on Potential Triggering of

Anti-Backsliding Provisions

C. Comments on Persisting Practical

Difficulties at the State Level

D. Comments on Preferred Alternative

Courses of Action

VI. Effective Date

VII. Statutory and Executive Orders Reviews

A. Executive Order 12866-Regulatory

Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132-Federalism

F. Executive Order 13175-Consultation

and Coordination With Indian Tribal

Governments

G. Executive Order 13045-Protection of

Children From Environmental Health

and Safety Risks

H. Executive Order 13211-Actions That

Significantly Affect Energy Supply,

Distribution, or Use

I. National Technology Transfer and

Advancement Act

J. Executive Order 12898-Federal Actions

To Address Environmental Justice in

Minority Populations and Low-Income

Populations

K. Congressional Review Act

L. Judicial Review

VIII. Statutory Language

II. Overview of the Final Rule

This action finalizes EPA's proposal

to narrow the approval of SIPs that we

included in what we call the proposed

Tailoring Rule, "Prevention of

Significant Deterioration and Title V

Greenhouse Gas Tailoring Rule:

Proposed Rule," 74 FR 55292, 55340

(October 27, 2009). EPA finalized the

Tailoring Rule by Federal Register

notice dated June 3, 2010, "Prevention

of Significant Deterioration and Title V

Greenhouse Gas Tailoring Rule: Final

Rule, 75 FR 31,514. The Tailoring Rule,

which followed a series of actions by

EPA that will trigger PSD applicability

to GHG-emitting sources as of January 2,

2011, limits PSD applicability for GHG

emissions to larger sources.

The Tailoring Rule accomplished this

purpose by setting thresholds at which

GHG emissions become subject to

regulation for PSD and Title V

purposes.' Under the Tailoring Rule, a

source becomes subject to PSD

requirements based on its GHG

emissions only if it both emits GHGs at

or above the Tailoring Rule thresholds,2

which are calculated on a carbon

dioxide equivalent (CO2 e) basis; and it

emits GHGs at levels above the statutory

100/250 tons per year (tpy) mass-based

threshold generally applicable to all

PSD-regulated pollutants, and-if it is

being modified-has or will have an

emission increase on a mass basis. The

Tailoring Rule thresholds were designed

to relieve the overwhelming

administrative burdens and costs

associated with the dramatic increase in

permitting burden that would have

resulted from applying PSD at the

statutory levels on January 2, 2011.

Instead, the Tailoring rule established a

phasing in of applicability for GHG

sources, starting with the largest GHG

emitters.

However, in proposing the Tailoring

Rule, EPA recognized that even after it

finalized the Tailoring Rule, most of the

SIPs with approved PSD programs

would-until they were revised-

' Only the PSD provisions are relevant for this

action.

2 The Tailoring Rule thresholds establish

applicability of the PSD permitting program to

GHG-emitting sources only if they emit GHG in

amounts above the 75,000/100,000 tpy CO2e.

82537
82538 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

continue to apply PSD at the statutory

thresholds, even though the states

would not have sufficient resources to

implement the PSD program at those

levels. Accordingly, the proposed

Tailoring Rule included a proposal to

narrow EPA's previous approval of SIPs

such that the SIPs would only apply to

GHG emissions at or above the higher

thresholds established in the Tailoring

Rule. When EPA finalized the Tailoring

Rule, EPA did not, however, finalize

that part of the proposal. Instead, EPA

waited to collect more information from

the states to determine whether such

action was necessary, and, if so, for

which states. EPA is now finalizing that

part of the Tailoring Rule proposal in 24

states.

Thus, in this action, EPA is narrowing

its previous approval of those approved

PSD SIP programs that apply PSD to

GHG-emitting sources. Specifically, EPA

is withdrawing their previous approvals

of those programs to the extent the SIPs

apply PSD to increases in GHG

emissions from GHG-emitting sources

with emissions below the Tailoring Rule

thresholds. The portions of the PSD

programs regulating GHGs from GHGemitting sources with emissions at or

above the Tailoring Rule thresholds

remain approved.

The effect of EPA narrowing its

approval in this manner is that the

provisions of previously approved SIPs

that apply PSD to GHG emissions

increases from sources emitting GHGs

below the Tailoring Rule thresholds will

have the status of having been

submitted by the state but not yet acted

upon by EPA. EPA suggests that affected

states take one of two actions to

withdraw these no-longer-approved SIP

PSD provisions. The state may submit a

SIP revision for EPA's approval that

incorporates the Tailoring Rule

thresholds into the SIP. EPA will treat

the approval of such a submission as

removing these no-longer-approved

provisions. Or, a state may submit a

letter to EPA stating that it is

withdrawing these provisions from

EPA's consideration. For any state that

takes neither of these actions, EPA

intends to propose to disapprove those

provisions. The disapproval, if

finalized, will not result in the need to

resubmit another SIP revision,

sanctions, or a federal implementation

plan (FIP). This is because the

provisions of the SIP that would be

disapproved are not required for any

purpose under the CAA or necessary to

meet any CAA standard.

This action ensures that the federal

law applicable in the affected states

does not require PSD permitting for

GHG emissions below the final

Tailoring Rule thresholds as of January

2, 2011. Once the states take action to

amend their state laws, then sources in

the affected states will not be subject to

federal or state requirements to obtain

permits at the lower 100/250 tpy level.

Most, if not all, of the affected states

have already begun taking steps toward

completing these changes at the state

level, and plan to complete changes to

their state law and make those changes

effective by January 2, 2011. In general,

these states are now in the process of (or

have recently completed) incorporating

the state law changes into SIP revisions

to submit to EPA for approval. The

combination of this rule and state

actions will, in the affected states,

eliminate, or at least greatly minimize,

the time during which GHG-emitting

sources that are below the Tailoring

Rule thresholds will be subject to PSD

in the state under either state or federal

law while SIP revisions are being

developed, submitted, and approved.

The states for whose SIPs EPA is

narrowing approval are: Alabama,

California,3 Colorado, Georgia, Indiana,

Iowa, Louisiana, Maine, Maryland,

Mississippi, Missouri, New Hampshire,

New Mexico, 4 North Carolina, Ohio,

Oklahoma, Rhode Island, South

Carolina, South Dakota, Tennessee,

Utah, Vermont, Virginia, and

Wisconsin.

III. Proposed Rule

We assume familiarity here with the

statutory and regulatory background

discussed in the preambles for the

Tailoring Rule proposal and final action,

and will only briefly summarize that

background here.

Under the CAA PSD program, major

stationary sources must obtain a permit

prior to undertaking construction or

modification projects that would result

in specified amounts of new or

increased emissions of air pollutants

that are subject to regulation under

other provisions of the CAA. CAA

sections 165(a)(1), 169(1). The permit

must, among other things, include

emission limitations associated with the

best available control technology

(BACT). CAA section 165(a)(4).

In recent months, EPA completed four

distinct actions related to greenhouse

gases under the Clean Air Act. These

actions include, as they are commonly

called, the "Endangerment Finding" and

"Cause or Contribute Finding," which

3 Specifically, EPA is narrowing its approval of

the SIPs for 3 districts within California:

Mendocino County, North Coast Unified, and

Northern Sonoma County.

4 EPA is narrowing its approval of both the SIP

for New Mexico, as well as the SIP for Albuquerque.

we issued in a single final action, 5 the

"Johnson Memo Reconsideration (also

called the "Timing Decision")," 6 the

"Light-Duty Vehicle Rule (LDVR)," 7 and

the "Tailoring Rule." 8 In the

Endangerment Finding, which is

governed by CAA § 202(a), the

Administrator exercised her judgment,

based on an exhaustive review and

analysis of the science, to conclude that

"six greenhouse gases taken in

combination endanger both the public

health and the public welfare of current

and future generations." 74 FR at 66,496.

The Administrator also found "that the

combined emissions of these

greenhouse gases from new motor

vehicles and new motor vehicle engines

contribute to the greenhouse gas air

pollution that endangers public health

and welfare under CAA section 202(a)."

Id. The Endangerment Finding led

directly to promulgation of the Vehicle

Rule, also governed by CAA § 202(a), in

which EPA set standards for the

emission of greenhouse gases for new

motor vehicles built for model years

2012-2016. 75 FR 25,324. The other two

actions, the Johnson Memo

Reconsideration and the Tailoring Rule,

governed by the PSD and Title V

provisions in the CAA, were issued to

address the automatic statutory

triggering of these programs for

greenhouse gases due to the Vehicle

Rule establishing the first controls for

greenhouse gases under the Act. More

specifically, the Johnson Memo

Reconsideration provided EPA's

interpretation of a pre-existing

definition in its PSD regulations

delineating the "pollutants" that are

taken into account in determining

whether a source must obtain a PSD

permit and the pollutants each permit

must control. Regarding the Vehicle

Rule, the Johnson Memo

Reconsideration stated that such

regulations, when they take effect on

January 2, 2011, will, by operation of

the applicable CAA requirements,

subject GHG-emitting sources to PSD

5"Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under Section

202(a) of the Clean Air Act." 74 FR 66,496

(December 15, 2009).

6 "Interpretation of Regulations that Determine

Pollutants Covered by Clean Air Act Permitting

Programs." 75 FR 17,004 (April 2, 2010). This action

finalizes EPA's response to a petition for

reconsideration of "EPA's Interpretation of

Regulations that Determine Pollutants Covered by

Federal Prevention of Significant Deterioration

(PSD) Permit Program" (commonly referred to as the

"Johnson Memo"), December 18, 2008.

7 "Light-Duty Vehicle Greenhouse Gas Emission

Standards and Corporate Average Fuel Economy

Standards; Final Rule." 75 FR 25,324 (May 7, 2010).

8 "Prevention of Significant Deterioration and

Title V Greenhouse Gas Tailoring Rule; Final Rule."

75 FR 31,514 (June 3, 2010).
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

requirements. 75 FR 17,004. The

Tailoring Rule established a series of

steps by which PSD and Title V permit

requirements for greenhouse gases are

phased in, starting with the largest

sources of greenhouse gas emissions. 75

FR 31,514. In addition, by Federal

Register notice dated September 2,

2010, EPA proposed to find that the

SIPs for 13 states with approved PSD

programs are substantially inadequate to

meet CAA requirements because they

fail to apply their PSD program to GHGemitting sources, and EPA proposed to

issue a "SIP call" under CAA section

110(k)(5) for those states that would

require submission of a corrective SIP

revision. 75 FR 53,892. At the same

time, EPA proposed a FIP, under CAA

§ 110(c), for those states. 75 FR 53,883.

In the proposed Tailoring Rule, EPA

proposed a major stationary source

threshold of 25,000 tpy for GHG on a

CO 2e basis, for at least a specified

period. EPA recognized that even so,

many SIPs with approved PSD programs

would require PSD permitting of GHGemitting sources at the 100/250 tpy

statutory major source threshold

generally applicable to regulated New

Source Review (NSR) pollutants, as well

as at the "any increase" level for

modifications, and that these SIPs

would remain in place even after we

finalized the Tailoring Rule. Thus, in

those states, until states revised those

SIPs, sources would remain subject to

these thresholds as a matter of both state

and federal law even after we finalized

the Tailoring Rule. This would result in

the same problems of overwhelming

administrative burdens and costs that

we designed the Tailoring Rule to

address.

EPA also recognized that the solution

to these problems lay in the form of SIP

revisions that EPA would approve to

raise the thresholds in approved state

PSD permitting programs to conform to

the Tailoring Rule (or, in the alternative,

in the form of increased state resources).

Until the states could develop and

submit for approval such SIP revisions,

and EPA could approve them, EPA

proposed to narrow its approval of the

existing EPA-approved SIPs that would

regulate GHG emissions at levels below

the Tailoring Rule thresholds.

Specifically, EPA proposed to narrow its

approval of the permitting threshold

provisions, including the significance

threshold provisions in the SIPs, to the

extent those provisions required PSD

permits for sources whose GHG

emissions fall below the proposed

Tailoring Rule thresholds. EPA based its

proposed narrowing of approval on the

fact that while the SIPs would require

PSD to apply at the 100/250 tpy levels

(and at the any mass increase level for

modifications), the states do not have

the resources to implement the program

at that level, and thus the SIPs were

inconsistent with CAA section

110(a)(2)(E)(i), which requires that states

provide necessary assurances that they

have adequate funding and personnel to

implement their SIPs. EPA proposed to

rely, as the legal mechanisms for the

proposed narrowing of approval, on

CAA section 301(a), which provides the

EPA Administrator with general

regulatory authority to issue regulations

necessary to carry out her CAA

functions; and on the authority of an

agency to reconsider its actions inherent

in the Administrative Procedures Act

(APA) section 553. In the alternative,

EPA proposed to rely on the error

correction provision of CAA section

110(k)(6). EPA did not propose to issue

a SIP call under CAA section 110(k)(5)

for these SIP provisions.

In the final Tailoring Rule, EPA

established a schedule to phase-in

threshold levels of GHG emissions

below which a source will not be

required to obtain a PSD permit. 9 EPA

established the initial levels (which are

higher than those in the proposed

Tailoring Rule) in the first two steps of

the phase-in schedule, committed the

agency to take future steps addressing

smaller sources, and excluded the

smallest sources from PSD permitting

for GHG emissions until at least April

30, 2016.

In addition, in the final Tailoring

Rule, EPA chose revision of the

definition of the term "subject to

regulation" as the mechanism to revise

the PSD thresholds for GHG. Under the

PSD program, a major stationary source

is subject to PSD. A major stationary

source is defined as a source that emits

100/250 tpy on a mass basis of a

regulated NSR pollutant, and a

regulated NSR pollutant, in turn, is

defined as, among other things, a

pollutant that is subject to regulation

under the CAA. In the final Tailoring

Rule, EPA defined the term "subject to

regulation" so that GHG emissions from

sources at or above specified thresholds

(depending on the circumstances,

75,000 and/or 100,000 tpy on a CO 2e

9 The final Tailoring Rule also established a

threshold of 100,000 tpy CO 2e for when a source

would be considered a "major source" subject to

title V permitting under 40 CFR part 70 and part

71. This rule addresses issues related to adoption

of the Tailoring Rule thresholds for state PSD

programs only. EPA will promulgate a separate rule

to address issues related to the adoption of the

Tailoring Rule threshold for approved state

operating permit programs. EPA notes, however,

that some state title V programs are incorporated

into SIPs and that further corrections of the SIP may

be necessary in such cases.

basis) are treated as subject to

regulation. Thus, sources that emit that

amount are subject to PSD as long as

that amount of GHG also exceeds 100/

250 tpy on a mass basis and with

respect to modifications there is a

defined emissions increase. 10

Some states advised EPA that it is

likely they would be able to implement

the Tailoring Rule thresholds by

interpreting the term "subject to

regulation" in their SIPs. A state's

implementation of the Tailoring Rule in

this manner, or in any other manner,

prior to January 2, 2011, obviates the

need for EPA to narrow its approval of

the state's SIP. Thus, in the final

Tailoring Rule, EPA delayed final action

on its proposal to narrow approval for

any SIP-approved PSD programs. EPA

deferred making any decision regarding

whether to narrow its approval of any

SIPs until after learning the process and

time-line for states to implement the

Tailoring Rule. Based on information it

had received, EPA expected that many

states would quickly adopt the

interpretation of the term "subject to

regulation" used in the final Tailoring

Rule, and thereby obviate the need for

EPA to narrow its approval or take any

other action with respect to the SIP.

Thus, EPA asked states to submit

information-in the form of letters due

within 60 days of publication of the

Tailoring Rule (which we refer to as the

60-day letters)-that would help EPA

determine whether it needed to narrow

its approval of any SIPs.

Almost all states submitted 60-day

letters. The letters, in conjunction with

other information EPA received,

indicate that the states, localities, and

other jurisdictions may be divided into

three categories. The first, which

includes 7 states, 35 subsections of

states, the District of Columbia,

American Samoa, Guam, Puerto Rico,

the U.S. Virgin Islands, and Indian

Territory, does not have an approved

SIP PSD permitting program. Instead,

federal requirements apply. Thus, in

these jurisdictions, the thresholds in the

Tailoring Rule will apply without

further action.

The second category includes the

states (or districts within states) whose

SIPs do not appear to apply the PSD

program to GHG-emitting sources. As a

result, EPA proposed a SIP call and FIP

for these states by notice dated

September 2, 2010. 75 FR 53892. Based

on the 60-day letters, letters EPA

received in response to the proposed

SIP call and FIP (which we refer to as

10 Unlike the proposed Tailoring Rule, the final

Tailoring Rule did not set significance levels for

GHG emissions.

82539
82540 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

the 30-day letters), and additional

information EPA has received, EPA

finalized (at about the same time as this

action) a SIP call in 13 states, including

4 districts within states.

The remaining 30 states and 6

districts within states, the third

category, have approved SIPs that apply

their PSD program to GHG-emitting

sources. In those states, absent further

action, sources emitting GHGs at or

above the 100/250 tpy levels will be

subject to PSD requirements as of

January 2, 2011, if they construct or

modify. Of these localities, 6 states and

4 districts within states have indicated

that they would interpret their SIPs to

regulate GHG emissions only above the

Tailoring Rule thresholds, and no

further action was needed to do so. EPA

approved a SIP for 1 state-New Yorkfor the first time in November 2010, and

that original approval itself was limited

to exclude the part of the PSD program

that applies to GHG emissions below the

Tailoring Rule thresholds. All or part of

twenty-four states, including 4 districts,

indicated that they would need to

submit SIP revisions to EPA in order to

incorporate the Tailoring Rule

thresholds. Some of these states

indicated, however, that they would not

be able to complete these changes prior

to January 2, 2011. Some states have

completed their SIP revisions and

submitted them to EPA, and EPA

expects to take final action on them

promptly. EPA has only signed SIP

revision approvals for two states,

Alabama and Mississippi, though

neither of these approvals has yet been

published as of the signing of this rule.

These states-including those that have

indicated that they would submit SIP

revisions to EPA to incorporate the

Tailoring Rule thresholds, but for which

EPA has not approved such SIP revision

as of the date of this rule-are included

in this rule.

It should be noted that this rule

focuses on eliminating the PSD

obligations under federal law for

sources below the Tailoring Rule

thresholds in states in the third

category, those with approved SIPs that

do not incorporate the Tailoring Rule.

The sources in those states also have

permitting obligations under state law.

EPA has strongly encouraged states to

eliminate the state law obligations by

revising their state law as promptly as

possible. Such a revision to state law

can eliminate those sources' state

obligations, even before the state is able

to process the revision as a SIP revision

and submit it to EPA for approval. In

almost all cases, states are proceeding to

revise their state law to reflect the

Tailoring Rule thresholds and will have

done so by January 2, 2011, or very soon

thereafter.

In their 60-day letters, none of the

states indicated either that they

intended to regulate GHG-emitting

sources at a level below the Tailoring

Rule thresholds, or that they could or

would increase their permitting

resources to do so.

IV. Final Rule

A. Action

EPA is taking final action to narrow

its approval of the SIPs for certain

states. In the final Tailoring Rule, EPA

established levels of GHG emissions

below which PSD provisions do not

apply. However, some SIPs currently

apply the PSD program to a source that

emits GHGs below the Tailoring Rule

thresholds, at levels at which, under the

Tailoring Rule, GHGs are not a pollutant "subject to regulation" under the CAA,

so that the emitting source is not a major

stationary source subject to PSD on

account of its GHG emissions. Thus,

EPA is now narrowing its approval of

some approved SIPs so that the PSD

programs under those SIPs are approved

to apply to GHG-emitting sources only

if those sources emit GHGs at or above

Tailoring Rule thresholds. EPA is

accomplishing this narrowing by

withdrawing its previous approval of

those PSD programs to the extent they

apply to GHG-emitting sources that emit

below the Tailoring Rule thresholds.

Those provisions of SIPs from which

EPA is withdrawing its approval will be

treated as submitted by the state for

approval and not yet acted upon by

EPA. If a state submits a SIP revision for

EPA's approval that incorporates the

Tailoring Rule thresholds into the SIP,

EPA will treat the approval of the

submission as removing these nolonger-approved provisions. We note

that once SIP revisions incorporating

the Tailoring Rule thresholds are

approved after the issuance of this rule,

they will supersede the changes made in

this rule. That is, this rule amends the

regulatory language in the Code of

Federal Regulations (CFR) approving

each of the relevant SIPs. When EPA

approves a SIP revision, EPA will

remove from the CFR the regulatory

language added by this rule.

Alternatively, EPA suggests that the

affected states may withdraw those

provisions from EPA's consideration

through a letter to the EPA Regional

Administrator. EPA offers the following

as model language that the state should

feel free to use, but is not required to

use:

In its final rule entitled "Limitation of

Approval of Prevention of Significant

Deterioration Provisions Concerning

Greenhouse Gas Emitting-Sources in State

Implementation Plans" and published on

[DATE OF PUBLICATION IN THE FEDERAL

REGISTER], EPA amended the Code of

Federal Regulations at [LOCATION OF CFR

AMENDMENT RELEVANT TO STATE/

DISTRICT] and withdrew EPA's approval of

that portion of [STATE]'s SIP that would

require sources to seek PSD permitting for

emissions of GHGs in amounts below the

thresholds specified in the Tailoring Rule, 74

FR 55292 (October 27, 2009). [STATE] now

acts to withdraw from EPA's consideration

that portion of [STATE['s SIP from which

EPA withdrew its approval in that action.

These provisions are no longer intended for

inclusion in the SIP, and are no longer before

EPA for its approval or disapproval.

If a state does not withdraw the SIP

provisions for which EPA is rescinding

approval, and does not submit a SIP

revision incorporating the Tailoring

Rule thresholds that would supercede

this rule, EPA intends to propose to

disapprove the relevant provisions in

the near future. Any disapproval of such

SIP provisions-again, those applying

PSD to GHG-emitting sources that emit

GHGs below the Tailoring Rule

threshold-will not, if finalized, result

in the need to resubmit another SIP

revision, in sanctions, or in a FIP. This

is because the relevant provisions are

not necessary to meet any applicable

CAA requirement. See CAA sections

110(k)(3) (requirements for SIP

disapproval), 179(a)(2) (sanctions).

In the proposed Tailoring Rule, EPA

proposed to narrow its approval for all

50 states, as well as the District of

Columbia, Guam, Puerto Rico, the U.S.

Virgin Islands, and American Samoa.

EPA now finalizes this narrowing of

approval for only the SIPs with PSD

programs that will apply to GHG

emissions as of January 2, 2011, and for

which the states have not either said

that they interpret their SIPs to

incorporate the Tailoring Rule

thresholds for GHG emissions without

the need for further action, or completed

taking any further action necessary to

incorporate the Tailoring Rule

thresholds. This rule does not include

final action on the proposal to narrow

EPA's approval of SIPs for states that do

not have approved PSD SIP programs

(the first category previously described),

and states that have approved PSD SIP

programs that do not apply to GHGs (the

second category previously described).

This rule also does not take final action

on the proposal to narrow EPA's

approval of SIPs for states that have PSD

SIP programs that cover GHG emissions,

and that have already incorporated the

Tailoring Rule thresholds via

interpretation, SIP revision, or any other

mechanism. The language being used
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

for this final narrowing rule reflects

changes from the language proposed in

the Tailoring Rule in order to clarify and

reflect the decisions about permitting

thresholds reached in the final Tailoring

Rule.

The states for whom EPA is narrowing

its approval of the SIP PSD program in

this action include: Alabama, California,

Colorado, Georgia, Indiana, Iowa,

Louisiana, Maine, Maryland,

Mississippi, Missouri, New Hampshire,

New Mexico, North Carolina, Ohio,

Oklahoma, Rhode Island, South

Carolina, South Dakota, Tennessee,

Utah, Vermont, Virginia, and

Wisconsin.

B. Legal Basis

EPA is narrowing its previous

approval for each of the affected SIPs

because EPA erred when it approved

each SIP's PSD program. In those

approvals, EPA failed to account for an

important flaw in the SIP. As a result,

EPA is rescinding its previous approval

for the part of the SIP that is flawed, and

EPA is leaving in place its previous

approval for the rest of the SIP. The flaw

is that the applicability provisions of the

PSD program (which determined the

pollutants to which PSD permitting

applies) were phrased so broadly that

they could, under certain

circumstances, sweep in more sources

than the program could accommodate in

light of the resources that, under the

SIP-in accordance with what we refer

to as the "state assurances" provision

under CAA § 110(a)(2)(E)(i)-were

available or for which a plan was in

place to acquire. The part of PSD

applicability that is broader than what

the state assurances covered is the part

that exceeds EPA requirements for PSD

applicability. The following section

discusses this basis in more detail,

beginning with the PSD applicability

provisions; then the state assurances

provisions; and then how the two

provisions, read together, gave rise to

the flaws in the SIPs.

1. PSD Applicability

Each of the states subject to this rule

has an approved PSD SIP program that

applies to sources of pollutants subject

to regulation under the CAA. Some

states' programs meet EPA's PSD

requirements as they read prior to

promulgation of the 2002 NSR

rulemaking, which we refer to as the

NSR Reform rule. These pre-Reform

11 "Prevention of Significant Deterioration (PSD)

and Nonattainment New Source Review (NNSR):

Baseline Emissions Determination, Actual-toFuture-Actuals Methodology, Plantwide

Applicability Limitations, Clean Units, Pollution

SIPs, include a PSD applicability

provision that provides that PSD applies

to "any air pollutant subject to

regulation." 40 CFR 51.166(b)(1)(i)

(2001). Other states subject to this rule

have an approved PSD program that

includes the NSR Reform rule. The

Reform requirements, replaced the term

"any air pollutant subject to regulation"

with the term "regulated NSR

pollutant," 40 CFR 51.166(b)(1)(i), and

defined that latter term to include

pollutants regulated under specified

provisions of the CAA as well as "any

pollutant that is otherwise subject to

regulation under [the CAA]." 40 CFR

51.166(b)(49)(iv). This quoted provision

is similar to the pre-Reform provision,

as both include the phrase "subject to

regulation" in reference to the types of

air pollutants that will be subject to the

PSD program. Thus, each of the states

subject to this rule has an approved PSD

program-whether pre-Reform or

Reform-that applies to any air

pollutant that is "subject to regulation"

under the CAA.

These applicability provisions mean

that under federal law, in each of these

SIPs, PSD will expand to cover

additional sources that emit a pollutant

different than the ones already covered

under the PSD program as soon as EPA

promulgates a rule regulating that

pollutant under any other provision of

the CAA. Depending on the pollutant

and the number and size of sources that

emit it, these applicability provisions

could result in a significant and rapid

expansion of the PSD program. This is

precisely what is happening at present,

now that EPA has promulgated the

LDVR, to take effect on January 2, 2011,

at which time GHGs will become subject

to regulation under CAA section 202(a).

Importantly, the states affected by this

action, while including in their SIPs a

PSD applicability provision that applies

PSD to any pollutant "subject to

regulation," generally do not interpret

their applicability provision, or any

other provision in their SIPs, to

incorporate limits on PSD applicability

with respect to a new pollutant and the

SIPs do not contain any other

mechanism that would allow the State

to interpret applicability more narrowly.

As a result, the affected states'

applicability provisions include no way

to limit the speed or extent of the

expansion a PSD program might be

required to undergo to regulate new

pollutants.

The case of GHGs has highlighted the

potential scale of a PSD program for a

new pollutant under such open-ended

Control Projects," Final Rule, 67 FR 10816

(December 2, 2002).

provisions. As described in the final

Tailoring Rule, EPA promulgated the

LDVR, which is the rule that, upon

January 2, 2011, when it takes effect,

subjects GHGs to regulation. The LDVR

identifies GHGs as the group of six air

pollutants made up of carbon dioxide,

methane, nitrous oxide, sulfur

hexafluoride, hydrofluorocarbons, and

perfluorocarbons. 75 FR 31514, 31519

(June 3, 2010) (Tailoring Rule

discussion); 75 FR 25324 (May 7, 2010)

(LDVR). Accordingly, the SIPs affected

by this action will, as of January 2, 2011,

treat GHGs as a pollutant "subject to

regulation" and therefore apply PSD to

GHG-emitting sources. As previously

discussed, these SIPs will apply PSD to

new GHG-emitting sources at the 100/

250 tpy levels and to modified GHGemitting sources at the any-massincrease levels. None of these SIPs, as

currently approved, permits the

interpretation of the PSD applicability

more narrowly, to apply to only GHGemitting sources at or above the

Tailoring Rule thresholds. In contrast, as

previously noted, several other states

are able to interpret their SIPs more

narrowly and, as a result, are not subject

to this action.

The scale of the administrative

program needed to effectively permit all

sources emitting GHGs at the 100/250

tpy levels has highlighted the

unconstrained nature of the SIPs'

applicability provisions. EPA has

recognized that a PSD program

regulating GHGs at the 100/250 tpy

levels is administratively unmanageable

and creates absurd results that were not

intended by Congress when it passed

the CAA. Thus, in the Tailoring Rule,

EPA phased in GHG PSD applicability,

so that at the outset PSD applies to

GHG-emitting sources only if they also

emit GHG in amounts above the 75,000/

100,000 tpy CO 2e thresholds set out in

that rule.12 EPA included this limit in

its regulations, and through this limit

greatly reduced the extent of PSD

applicability. This limit was set at a

level at which EPA determined states

would have the resources to implement

a PSD program for GHG emissions. By

contrast, each of these SIPs applies GHG

PSD applicability more broadlyindeed, much more broadly, to far more

12 In its first phase, starting January 2, 2011, PSD

requirements for GHGs apply to sources that are

required to seek a PSD permit for non-GHG

pollutants, and that also increase emissions of GHG

by at least 75,000 tpy CO 2e. In its second phase,

starting July 1, 2011, PSD requirements for GHGs

will also apply to new sources that emit or with

potential to emit at least 100,000 tpy CO 2e, and

existing sources that emit or have the potential to

emit 100,000 tpy CO 2e and that undertake a

modification that increases net emissions of GHGs

by at least 75,000 tpy CO2e.

82541
82542 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

sources and to much smaller sourcesthan EPA's regulations do.

We note that there is nothing

inherently problematic about a SIP

imposing PSD applicability, or applying

other control requirements, as broadly

as a state might choose. SIPs may

lawfully do so and EPA may lawfully

approve them in accordance with the

provisions of section 110(a) of the CAA.

Similarly, there is nothing inherently

problematic with a SIP failing to include

any measures to limit the scope of its

control requirements. Even so, the SIP

must provide for adequate resources,

and must do so on the appropriate

schedule, as discussed next.

2. State Assurances of Adequate

Resources

Each of the states subject to this rule

was also required to include in its SIP

adequate state "assurances," in

accordance with CAA section

110(a)(2)(E)(i). This provision requires

the SIP to "provide * * * necessary

assurances that the State * * * will

have adequate personnel, funding, and

authority under State * * * law to carry

out such implementation plan* * *."

EPA has implemented this requirement

in 40 CFR 51.280, which provides,

Each plan must include a description of

the resources available to the State and local

agencies at the date of submission of the plan

and any additional resources needed to carry

out the plan during the 5-year period

following its submission. The description

must include projections of the extent to

which resources will be acquired at l-, 3-,

and 5-year intervals.

These CAA and regulatory requirements

concerning assurances apply to the SIP

as a whole, including the PSD program.

Therefore, at the time that the state

submitted the PSD provisions of the SIP

for EPA approval, the SIP was required

to include assurances that adequate

resources would be available to

implement the SIP in its entirety,

including the PSD program.

As previously noted, the affected SIPs

included expansive PSD applicability

provisions for newly regulated

pollutants, without a means to limit that

applicability. Under these

circumstances, state assurances are

needed to assure adequate resources in

the event of an expansion of the PSD

program to new pollutants, even when

this would require a rapid and sizeable

expansion of the resources dedicated to

the state PSD program, whether due to

the large number of sources emitting the

new pollutant or any other reason. EPA

has the authority to define, under CAA

section 110(a)(2)(E)(i), what assurances

are "necessary" so that the state will

have "adequate" resources. To be sure,

EPA does not read the assurances

requirement to require that the state

should somehow hold in reserve large

amounts of resources to cover the

possibility that the PSD program would

undergo such a large and rapid

expansion. However, EPA does read the

requirement to require that the state

have a plan for acquiring the requisite

additional amount of resources in the

case of an expansion in PSD

applicability. Moreover, that plan

should include an implementation

schedule that would be consistent with

the timing of expansion in PSD

applicability. PSD expansion may occur

quite rapidly because PSD requirements

apply immediately once they are

triggered by subjecting a pollutant to

regulation. This is because of the CAA

requirement that stationary sources may

not construct or modify unless they first

have acquired a permit. CAA section

165(a). That is, as soon as a pollutant is

subject to regulation-as will occur for

GHGs on January 2, 2011-the

pollutant-emitting sources to which PSD

then applies cannot lawfully undertake

construction or modification projects

without first procuring a PSD permit.

It is clear, however, that none of the

SIPs affected by this action include such

a plan among their assurances. In the

proposed Tailoring Rule, EPA stated

that at the time that the LDVR triggers

PSD applicability, if it triggers such

applicability at the 100/250 tpy level,

then far greater numbers of sources will

require permitting than currently do. As

a result, EPA added, the administrative

burdens associated with permitting

small sources for affected state and local

permitting authorities would

overwhelm the authorities. For each

state, EPA proposed to rescind approval

of the part of the SIP that applies PSD

to sources below the Tailoring Rule

thresholds, unless the state

demonstrated that it had adequate

resources to permit at the lower levels.

During the comment period on this

proposal, no authority contested this

understanding of the facts, none stated

that they could administer PSD at the

100/250 tpy levels, and none contested

the proposal on grounds that they have

adequate resources. In the final

Tailoring Rule, EPA refined, on the

basis of comments, the precise extent of

the administrative burden, but

confirmed that the burden was

overwhelming and that states lacked

adequate resources. In the final

Tailoring Rule, EPA requested that

states submit letters within 60 days of

publication of the rule describing how

they intended to implement PSD for

GHG-emitting sources.' 3 In those letters,

none of the states claimed they could,

or intended to, implement the Tailoring

Rule at the statutory levels. From all

this, it is clear that none of the states

had included in their state assurances

an adequate plan to acquire resources to

administer the PSD program for their

GHG-emitting sources at the 100/250

tpy level.

It must be emphasized that there is

nothing inherently problematic with a

SIP whose state assurances do not

include the previously-described plan to

acquire additional resources. Only SIPs

that lack any constraints to limit PSD

applicability for new pollutants to

match their resources must include such

a plan.

3. Flaw in SIP

Based on the previous analysis, it is

clear that the SIPs subject to this action

are flawed. They each are structured in

a manner that may impose PSD

applicability on new pollutants in an

unconstrained manner, and yet they do

not have a plan for acquiring resources

to adequately administer any large new

components of the PSD program, and to

do so on the same schedule that sources

may become subject to PSD. As

previously explained, the SIPs'

unconstrained applicability is not by

itself a flaw. The flaw is the

combination of that unconstrained

applicability and the failure of the SIP

to plan for adequate resources for that

applicability, and do so on the

appropriate time-table. In short, the

SIPs' PSD applicability provisions and

their state assurances are mismatched

and therefore the SIP is flawed. As

previously discussed, EPA's recently

promulgated GHG rules have

highlighted this flaw.

EPA notes that since the enactment of

the PSD provisions, EPA has

periodically subjected pollutants to

control for the first time, thereby

triggering PSD applicability. At the time

the affected SIPs were submitted and

approved, this structural flaw could

have been recognized. That is, it could

have been recognized that (i) the PSD

applicability provisions were essentially

unconstrained, but that the resources

the state assured would be available

were constrained; and (ii) at some point

in time, a pollutant could become newly

regulated that would expand PSD

applicability to a point that would

require resources beyond what the state

assured would be available. It bears

reiterating that EPA has discretion to

interpret the CAA's SIP requirements,

13 The 60-day letters are available at http://

www.epa.goviNSR/2OlOletters.html.
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

including what state assurances are

required. In EPA's view, the breadth of

the affected SIPs' provisions concerning

PSD applicability, combined with the

limited state assurances, constitutes a

flaw.

C. Legal Mechanisms for EPA Action

Because the SIPs were flawed, EPA

approval of them was in error. Two

mechanisms are available for addressing

that error: The error correction

mechanism provided under CAA

section 110(k)(6), 42 U.S.C. section

7410(k)(6), or EPA's inherent general

authority to reconsider its own actions

under CAA section 301(a), 42 U.S.C.

section 7601(a), read in conjunction

with CAA section 110(k) and other

statutory provisions, and case law

holding that an agency has inherent

authority to reconsider its prior actions.

1. Error Correction Under CAA Section

110(k)(6)

CAA section 110(k)(6) provides as

follows:

Whenever the Administrator determines

that the Administrator's action approving,

disapproving, or promulgating any plan or

plan revision (or part thereof), area

designation, redesignation, classification, or

reclassification was in error, the

Administrator may in the same manner as the

approval, disapproval, or promulgation

revise such action as appropriate without

requiring any further submission from the

State. Such determination and the basis

thereof shall be provided to the State and

public.

The key provisions are that the

Administrator has the authority to

"determine [ ]" when a SIP approval

was "in error," and when she does so,

she may then revise the SIP approval "as

appropriate," in the same manner as the

approval, and without requiring any

further submission from the state. With

this action, EPA is determining that its

action approving the PSD SIP provisions

was "in error" due to the mismatch,

previously discussed, between the PSD

applicability provisions and the state

assurances. EPA is further determining

that the appropriate action EPA can

take-in light of EPA's proposal as part

of the proposed Tailoring Rule-to

revise that prior action is to rescind

approval of the PSD program to the

extent it applies PSD to GHG-emitting

sources below the Tailoring Rule

threshold. Thus, EPA is narrowing its

approval of the PSD programs as

indicated. EPA may consider further

action in the future.

a. Type of Error

These determinations are authorized

under the CAA. First, approval of the

SIPs in light of the mismatch constitutes

an "error" within the meaning of CAA

section 110(k)(6). As previously quoted,

CAA section 110(k)(6) provides EPA

with the authority to correct its own "error," but nowhere does this provision

or any other provision in the CAA

define what qualifies as "error." Thus,

the term should be given its plain

language, everyday meaning. Webster's

II Dictionary defines an "error" as: "(1)

an act, assertion, or belief that

unintentionally deviates from what is

correct, right or true, (2) the state of

having false knowledge . . . (4) a

mistake . . ." Webster's II New Riverside

University Dictionary 442 (Houghton

Mifflin Co. 1988). Similarly, the Oxford

American College Dictionary 467 (2d

ed. 2007) defines "error" as "a mistake"

or "the state or condition of being wrong

in conduct or judgment." These

definitions are broad, and include all

unintentional, incorrect or wrong

actions or mistakes.

The legislative history of CAA section

110(k)(6) is silent regarding the

definition of error, but the timing of the

enactment of the provision suggests a

broad interpretation. The provision was

enacted shortly after the Third Circuit

decision in Concerned Citizens of

Bridesburgv. U.S. EPA, 836 F.2d 777

(1987). In Bridesburg, the court adopted

a narrow interpretation of EPA's

authority to unilaterally correct errors.

The court stated that such authority was

limited to typographical and other

similar errors, and stated that any other

change to a SIP must be accomplished

through a SIP revision. Id. at 786. In

Bridesburg, EPA determined that it

lacked authority to include odor

regulations as part of a SIP unless the

odor regulations had a significant

relationship to achieving a NAAQS, and

so directly acted to remove 13-year-old

odor provisions from the Pennsylvania

SIP. Id. at 779-80. EPA found the

previous approval of the provisions to

have been an inadvertent error, and so

used its "inherent authority to correct an

inadvertent mistake" to withdraw its

prior approval of the odor regulations

without seeking approval of the change

from Pennsylvania. Id. at 779-80, 785.

After noting that Congress had not

contemplated the need for revision on

the grounds cited by EPA, Id. at 780, the

court found that EPA's "inherent

authority to correct an inadvertent

mistake" was limited to corrections such

as "typographical errors," and that

instead EPA was required to use the SIP

revision process to remove the odor

provision from the SIP. Id. at 785-86.

When the court made its

determination in Bridesburg in 1987,

there was no provision explicitly

addressing EPA's error correction

authority under the CAA. In 1990,

Congress passed CAA section 110(k)(6),

apparently for the purpose of

overturning the Bridesburg opinion.

This is apparent because CAA section

110(k)(6) both (i) authorizes EPA to

correct SIP approvals and other actions

that were "in error," which, as

previously noted, broadly covers any

mistake, and thereby contrasts with the

holding in Bridesburg that EPA's presection 110(k)(6) authority was limited

to correction of typographical or similar

mistakes; and (ii) provides that the error

correction need not be accomplished via

the SIP revision or SIP call process,

which contrasts with the holding of

Bridesburg requiring a SIP revision.

Because Congress apparently intended

CAA section 110(k)(6) to overturn

Bridesburg, the definition of "error" in

that provision should be sufficiently

broad to encompass the error that EPA

asserted it made in its approval action

at issue in Bridesburg, which goes well

beyond typographical or other similar

mistakes.

EPA has used CAA section 110(k)(6)

in the past to correct errors of a nontechnical nature. For example, EPA has

used CAA section 110(k)(6) as authority

to make substantive corrections to

remove a variety of provisions from

federally approved SIPs that are not

related to the attainment or maintenance

of NAAQS or any other CAA

requirement. See, e.g., "Approval and

Promulgation of Implementation Plans;

Kentucky: Approval of Revisions to the

State Implementation Plan," 75 FR 2440

(Jan. 15, 2010) (correcting the SIP by

removing a provision, approved in 1982,

used to address hazardous or toxic air

pollutants); "Approval and

Promulgation of Implementation Plans;

New York," 73 FR 21,546 (April 22,

2008) (issuing a direct final rule to

correct a prior SIP correction from 1998

that removed general duties from the

SIP but neglected to remove a reference

to "odor" in the definition of "air

contaminant or air pollutant");

"Approval and Promulgation of

Implementation Plans; New York," 63

FR 65557 (Nov. 27, 1998) (issuing direct

final rule to correct SIP by removing a

general duty "nuisance provision" that

had been approved in 1984); "Correction

of Implementation Plans; American

Samoa, Arizona, California, Hawaii, and

Nevada State Implementation Plans," 63

FR 34,641 (June 27, 1997) (correcting

five SIPs by deleting a variety of

administrative provisions concerning

variances, hearing board procedures,

and fees that had been approved during

the 1970s).

82543
No. 250/Thursday, December 30, 2010/Rules and Regulations

EPA's approval of the PSD SIP

provisions, in light of the mismatch

between those provisions and the state

assurances, was "in error" within the

meaning of CAA section 110(k)(6).

Under the familiar Chevron two-step

framework for interpreting

administrative statutes, an agency must,

under Chevron step 1, determine

whether "Congress has directly spoken

to the precise question at issue." If so,

"the court, as well as the agency, must

give effect to the unambiguously

expressed intent of Congress." However,

under Chevron step 2, if "the statute is

silent or ambiguous with respect to the

specific issue, the question for the court

is whether the agency's answer is based

on a permissible construction of the

statute." Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837, 842-43 (1984).

As previously discussed, the PSD SIPs

were flawed due to the mismatch

between the PSD applicability

provisions and the state assurances.

EPA's action approving the PSD SIPs in

the face of that flaw was "in error" under

CAA section 110(k)(6) in accordance

with Chevron step 1. As previously

discussed, "error" should be defined

broadly to include any mistake, and

approval of a flawed SIP is a mistake.

Even if the term "error" is not

considered unambiguously to

encompass the mistake that EPA made

in approving the PSD SIPs under

Chevron step 1, and instead is

considered ambiguous on this question,

then under Chevron step 2 EPA has

sufficient discretion to determine that

its approval action meets the definition

of "error." That is, under CAA section

110(k)(6), both the breadth of the term

"error" and the authorization for EPA to

"determine[ ]"-which is a directive

that is inherently discretionary-when

it made an error, point towards EPA

having sufficient discretion to identify

the mismatch in the SIPs as a flaw and

to identify its action in approving the

PSD SIPs in the face of that mismatch

as an error under that provision.

b. Narrowing of Approval

Under CAA section 110(k)(6), once

EPA determines that its action in

approving the PSD SIPs was in error,

EPA has the authority to correct the

error in an "appropriate" manner, and

through the same process as the original

approval, but without requiring any

further state submission. The term

"appropriate" is open-ended, and

therefore confers broad discretion upon

EPA to fashion a reasonable type of

correction. More generally, CAA section

110(k)(6) authorizes EPA to

"determine[ ]" that its action was in

error, and does not direct or constrain

that determination in any manner. That

is, the provision does not identify any

factors that EPA must, or may not,

consider in making the determination.

This further indicates that this provision

confers broad discretion upon EPA.

EPA's action corrects the error by

rescinding EPA's approval of the PSD

threshold provisions to the extent they

apply PSD requirements to sources of

GHG emissions below the final

Tailoring Rule thresholds. Correcting

the error in this fashion is appropriate

because it narrows the approval to the

PSD requirements to the extent they

apply to GHG-emitting sources at or

above the final Tailoring Rule

thresholds. This approach (i) renders

the PSD applicability provisions

consistent with EPA regulations and (ii)

solves the mismatch previously

described by assuring that SIP PSD

applicability to GHG sources is

consistent with EPA's interpretation of

the scope of the state assurances of

adequate resources for PSD

administration.

Correcting the error in this fashionnarrowing the approval of SIPs-is also

consistent with the approach that the

affected states are taking to administer

PSD to GHG-emitting sources. The states

have advised EPA that they are

proceeding to develop SIP revisions to

implement the Tailoring Rule and

thereby narrow their SIP PSD programs

to GHG-emitting sources at or above the

Tailoring Rule thresholds. EPA's record

in the Tailoring Rule indicates that the

states should have adequate resources to

implement their PSD program for GHGemitting sources at the Tailoring Rule

thresholds. In contrast, no state has

informed EPA that it prefers to maintain

its PSD applicability at the 100/250 tpy

level and that it intends to acquire the

additional resources to do so.

At this time, EPA is not further

addressing, and therefore is not

rescinding its approval of, the affected

SIPs' PSD applicability provisions to the

extent they remain unconstrained in the

manner in which they incorporate

newly regulated pollutants in respects

other than PSD applicability to GHGemitting sources below the Tailoring

Rule thresholds. As a procedural matter,

EPA did not propose to do so in the

Tailoring Rule proposal and EPA did

not receive any comments indicating

that it should do so. In addition, CAA

section 110(k)(6) gives EPA the

authority to make corrections "as

appropriate." This language provides

EPA with discretion to choose how to

make corrections. The current problem

resulting from EPA's erroneous

approvals of the SIPs in question is

limited to the regulation of GHG

emissions, and the current rule

addresses this problem. The scope of

this action does not foreclose further

action to address EPA's error in the

future. An agency may properly address

an issue in step-by-step fashion. See,

e.g., Grand Canyon Air Tour Coalition v.

F.A.A., 154 F.3d 455 (DC Cir. 1998), City

of Las Vegas v. Lujan, 891 F.2d 927 (DC

Cir. 1989). 75 FR at 31544.

In accordance with CAA section

110(k)(6), EPA has conducted this

narrowing of approval through noticeand-comment rulemaking, which is the

same manner as EPA conducted the

prior approval.

2. Reconsideration Under CAA Section

301 and Case Law

In the alternative to the error

correction under CAA section 110(k)(6)

discussed above, EPA is using its

authority to reconsider its prior

approval actions in order to narrow its

approval of the SIPs at issue. This

authority lies in CAA section 301(a),

read in conjunction with CAA section

110(k) and other statutory provisions,

and case law holding that an agency has

inherent authority to reconsider its prior

actions.

EPA approved some of the SIP PSD

provisions affected by this rule prior to

1990, under the authority of CAA

section 110 as it read prior to

amendment by the 1990 CAA

Amendments. Prior to the amendments,

CAA section 110(a)(2) authorized EPA

to "approve or disapprove [a SIP], or any

portion thereof." EPA approved the rest

of the SIP PSD provisions affected by

this rule after 1990, i.e., under the

authority of CAA section 110(k)(3)-(4)

as added by the 1990 CAA

Amendments. These sections authorize

EPA to approve a SIP submittal "as a

whole," "approve [the SIP submittal] in

part and disapprove [it] in part," or issue

a "conditional approval" of a SIP

submittal. CAA section 110(k)(3)-(4).

In approving the SIPs under either

CAA section 110(a)(2) as it read prior to

1990 or CAA section 110(k), EPA

retained inherent authority to revise that

action. 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

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reconsider their own decisions, since

the power to decide in the first instance

carries with it the power to reconsider").

Section 301(a) of the CAA, read in

conjunction with CAA section 110 and

the case law just described, provides

statutory authority for EPA's

reconsideration action in this

rulemaking. Section 301(a) of the CAA

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 authority

upon EPA to undertake this rulemaking.

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. This is because EPA may grant

a petition from another person for an

amendment to or repeal of a rule only

if justified under the CAA, and 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.

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. In this

rule, EPA is using its authority to

reconsider and narrow its prior approval

of SIPs generally in the same manner as

it did in connection with California

conformity SIPs.

V. Comments and Responses

In this section, we provide responses

to comments we received on the

proposed Tailoring Rule on narrowing

EPA's approval of some SIPs. Several

industry commenters (4095, 4106, 4118,

4691, 4870, 5083, 5058, 5131, 5133,

5137, 5140, 5179, 5181, 5278, 5317,

5713, 6414, 16411) and state

commenters (2729, 4019, 4866, 4989,

5039, 5084) object to our proposal to

narrow our approval of previously fully

approved SIPs. One industry commenter

(4298) supports our proposal, though

would like EPA to take additional

actions as well. An environmental

commenter (5306) also believes that

EPA should accompany its proposed

actions with a SIP call.

A. Comments Regarding the Legal

Mechanism for the Current Action

Commenters argued that neither CAA

section 110(k)(6) error correction

authority nor EPA's general authority

under CAA 301(a) and APA 553(e)

support the action EPA now takes. The

arguments opposing both legal

mechanisms for this rule include the

following:

e The EPA's CAA section 110(k)(6)

justification is flawed because section

110(k)(6) authority is limited to the

correction of technical or clerical errors

made in a SIP approval and does not

allow any unilateral revision by EPA of

substantive provisions or any changes to

the nature or terms of a SIP that EPA has

approved in the past. (2797, 4019, 4866,

4870, 4989, 5039, 5083, 5133, 5131,

5140, 5179, 5181, 5279, 5317, 6414)

e The type of action EPA wishes to

undertake can only be taken through a

SIP call under section 110(k)(5) of the

CAA, although that section is not

applicable in this situation because SIPs

that incorporate the CAA applicability

thresholds are not inadequate to

"comply with any requirement of the

Act." (4106, 4691, 4870, 5058, 5140,

5181, 5278, 5317, 6414) e The EPA's retroactive limitation on

its prior approval of the SIPs is not

being done to correct a mistake-even

EPA does not claim its approvals were

in error at the time it promulgated them.

Rather, the Agency is trying to change

the SIPs now to avoid substantive and

timing problems it has created by its

own deliberate actions. (4870, 5058,

5131, 5140, 5181, 5278, 5317, 6414)

e The EPA is not proposing to correct

any "error" "in the same manner" as it

made its approval. The proposed

Tailoring Rule in effect proposes a

blanket narrowing on all past approvals;

EPA is not issuing an individualized

new proposed approval (or disapproval)

action for each SIP that had been the

subject of an individual EPA notice-andcomment SIP approval proceeding. A

SIP call is the proper procedure to

address any alleged inadequacies in

state resources. (2797, 4989, 5181, 5317) e In Concerned Citizens of Bridesburg

v. EPA, 836 F.2d 777 (3d Cir. 1987), the

court invalidated EPA's attempt to

rescind approval of a SIP revision that

EPA had approved 13 years earlier on

grounds that EPA's original approval

was in error. The Court explained that

in fact the SIP approval was no longer

consistent with EPA policy due to an

intervening change in that policy, and

that the SIP approval was not an

inadvertent mistake that would justify a

unilateral change in disregard of

procedural requirements for SIP

revisions. Some commenters state that

in order to be a mistake under

Bridesburg, the original SIP approval

must have been contrary to agency

policy at the time of the SIP approval.

One commenter also cited Detroit

Edison Co. v. EPA, 496 F.2d 244, 248-

49 (6th Cir. 1974) in support of its

argument that a substantive change to a

SIP is a change in policy rather than a

correction of an inadvertent mistake,

and EPA cannot implement such a

policy change in a SIP unilaterally (a

proposed clarification by EPA of a SIP

several months after promulgation was

not in fact a clarification but a revision

because it effected substantive change).

(4870, 5080, 5140, 5181, 5278, 5317)

e The EPA's invocation of section

110(k)(6) establishes a troubling

precedent that undermines the role of

states under the CAA. The EPA's

approach is unguided by any standards,

criteria, or precedent. States and

regulated sources would no longer have

confidence that they could rely on

approved SIPs, safe from EPA's revision

of those SIPs whenever the Agency

decides-on any grounds it chooses or

no grounds at all-that its prior

approval had been an "error." Under this

interpretation of section 110(k)(6), EPA

could dispense entirely with SIP calls

under section 110(k)(5) and the states'

role in SIP revisions, which was clearly

not what Congress had in mind when it

enacted section 110(k). The EPA's

approach seriously undermines the

carefully crafted federal-state

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partnership the CAA creates, which

assigns states the primary role in

designing SIPs, while giving EPA a more

limited, reviewing role. (4870, 5039,

5140, 5181, 5278, 5317)

e The EPA has overstated its

authority under CAA section 301(a).

The District of Columbia Circuit (DC

Circuit) has observed that CAA section

301(a)(1) "does not provide the

Administrator with carte blanche

authority to promulgate any rules, on

any matter relating to the CAA, in any

manner that the Administrator wishes."

Where the CAA includes express

provisions-such as section 110(k)(5)

(the SIP call provision)-EPA is

required to follow those provisions. If

there was a mistake in prior SIP

approvals as EPA contends, section

110(k)(5) is EPA's sole and exclusive

mechanism for seeking to correct a SIP

that has been determined to be

inadequate. (4019, 4866, 4870, 5058,

5083, 5131, 5140, 5181, 5278, 5317,

5714)

e The EPA's invocation of 5 U.S.C.

553(e) is legally indefensible. The EPA

has mentioned no outstanding petition

for EPA to revisit its PSD SIP approvals,

so section 553(e) appears to be

inapposite. In addition, CAA section

307(d)(1)(B) and the penultimate

sentence of section 307(d)(1) expressly

state that the provisions of section 553

do not apply to "the promulgation or

revision of an implementation plan by

the Administrator" under CAA section

110(c), which, in practical effect, is the

action EPA proposes here. Even where

section 553(e) applies, it merely directs

agencies to allow parties to seek

revisions of rules; it plainly does not

permit agencies to disregard procedural

requirements-whether under the APA

or under organic statutes such as the

CAA-that agencies must follow in

effecting any such revisions. (5317,

5714)

As previously discussed, EPA's error

correction authority under CAA section

110(k) (6) and, in the alternative, CAA

section 301, read in light of EPA's

general authority to reconsider its

actions, support the action EPA now

takes to narrow its prior approval of

some states' SIPs. The SIP call process

is a distinct and separate authority that

Congress has given to EPA 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 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. EPA's

general reconsideration authority also

applies to EPA's reconsideration of its

own actions.

Sections 110(k)(5) and (6) of the CAA

are intended to address different types

of problems with SIPs. Section 110(k)(6)

targets "error[s]" that EPA made at the

time it approved the SIP. Thus, EPA

may rely on CAA section 110(k)(6)

when EPA's own action-e.g., its

original approval of a state's SIP-is

erroneous. In contrast, section 110(k)(5)

targets "substantial [ ] inadequa[cies]"

that prevent the SIP's compliance with

CAA requirements and that exist in the

SIP at the time of the SIP call regardless

of when the substantial inadequacy first

arose. Thus, a SIP whose approval was

appropriate at the time but later may be

shown to contain substantial

inadequacies could be amended by the

state using a SIP call under CAA section

100(k)(5), but could not be corrected by

EPA under CAA section 110(k)(6).

Even so, many circumstances may

arise where either a CAA section

110(k)(6) correction or a section

110(k)(5) SIP call could be appropriate.

These are situations in which EPA erred

in approving a SIP because the SIP was

flawed, and that flaw constitutes a

substantial inadequacy that prevents the

SIP's compliance with a CAA

requirement. Under these

circumstances, EPA may choose

between CAA section 110(k)(6) or

section 110(k)(5), and nothing in either

of those provisions precludes EPA from

choosing to use the other one in the case

of an overlap. Section 110(k)(6) of the

CAA provides that "[w]henever the

Administrator determines that [a

specified action] was in error, the

Administrator may * * * revise such

action* * *." This provision grants

discretion to the Administrator to make

the indicated determination (including

the timing of the determination) and

then grants the Administrator the

discretion ("may") to revise the action.

No other provision in CAA section

110(k)(6), and none in section 110(k)(5),

precludes that discretion in a situation

in which the Administrator could have

instead relied on section 110(k)(5). By

the same token, CAA section 110(k)(5)

provides that "[w]henever the

Administrator finds that the applicable

implementation plan for any area is

substantially inadequate * * * to * * *

comply with any requirement of [the

CAA], the Administrator shall require [a

SIP revision]." This provision also

grants discretion to the Administrator to

make the indicated finding (including

the timing of the finding) that would

trigger the requirement for a SIP

revision. No other provision in CAA

section 110(k)(5) mandates that the

Administrator make the finding (and

thereby trigger the requirement for a SIP

revision) even if the Administrator

could otherwise rely on section

110(k)(6). See also New York Public

Interest Research Group v. Whitman,

321 F.3d 316, 330-31 (2d Cir. 2003)

(finding that opening phrase "Whenever

the Administrator makes a

determination" in CAA section 502(i)(1)

grants EPA "discretion whether to make

a determination"); Her Majesty the

Queen in Right of Ontario v. U.S. E.P.A.,

912 F.2d 1525, 1533 (DC Cir. 1990)

(finding "whenever" in CAA section

115(a) "impl[ied] a degree of discretion"

in whether EPA had to make an

endangerment finding). Indeed, if, as

commenters suggest, section 110(k)(5)

were viewed as predominating over

section 110(k)(6), then there would be

very few circumstances under which

section 110(k)(6) would be available

because in many instances, the type of

error that the Administrator would see

fit to correct under section 110(k)(6)

would be one that would cause a SIP to

be "substantially inadequate" to meet

CAA requirements. Such a narrow role

for section 110(k)(6) is inconsistent with

its plain language, which, again,

authorizes its usage "whenever" the

Administrator "determines" that EPA's

action was in "error." As previously

noted, the term "error" should be

defined broadly to include any

unintentional mistake, and the other

quoted terms inherently provide

discretion.

In addition to Congress's explicit

grant of error correction authority, the

DC Circuit recently affirmed EPA's

inherent authority to reconsider its own

actions in New Jerseyv. EPA, 517 F.3d

574 (DC Cir. 2008), where it explained

that an agency normally can change its

position and reverse a prior decision.

However, the Court added that "when

Congress has provided a mechanism

capable of rectifying mistaken actions

* * * it is not reasonable to infer

authority to reconsider agency action."

New Jersey, 517 F.3d at 583. In that case,

the Court did find that Congress had, in

fact, limited EPA's ability to remove

sources from the list of HAP source

categories, once listed, by requiring EPA

to follow the specific delisting process

at CAA section 112(c)(9).

In the present case, EPA believes that

it has the general authority under the

CAA to reconsider its previous actions.

Congress has also added the specific

provision CAA section 110(k)(6), which

authorizes correction of errors. EPA
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

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.

As previously discussed, EPA finds

support for its general authority to

reconsider under CAA section 301(a).

However, we are not relying on CAA

section 301(a) as carte blanche authority

to promulgate any rules; rather, we are

relying on CAA section 301(a) because

this action carries out EPA's functions,

to reconsider its action under CAA

section 110 in approving SIP revisions,

as authorized under the case law

previously cited. Likewise, EPA finds

some support for its authority in APA

section 553(e). However, EPA is not

relying on APA section 553(e) as direct

authority for this action, under which

EPA is correcting an error. Rather, EPA

considers APA section 553(e) to support

the proposition - also supported by

case law-that EPA has inherent

authority to correct an error. Similarly

to the APA, CAA section 307(b)(1),

which contemplates petitions for

reconsideration by EPA of actions taken

on SIP submissions, supports the

proposition that EPA has inherent

authority to reconsider prior decisions

that were in error.

Commenters' concerns that EPA's

approach to this rule seriously

undermines the CAA federal-state

partnership and the primary role given

the states in the SIP development

process are unfounded. This rule simply

corrects an error in accordance with

CAA section 110(k)(6); the primary role

of states and the nature of the federalstate partnership certainly remains

intact. States remain the developers and

drafters of the SIPs; EPA remains the

arbiter of whether the submitted SIP

provisions meet necessary requirements,

and thus should be part of the SIP. This

federal-state partnership cannot

preclude EPA from correcting errors in

its own SIP approvals, and the

partnership is not threatened by such

error corrections. In addition, in

accordance with CAA section 110(k)(6),

EPA exercises its authority under this

provision through notice and comment

rulemaking, in which states have the

opportunity to comment in order to

shape the outcome. Historically, EPA

has exercised its authority under CAA

section 110(k)(6) very sparingly and

judiciously. In the current case, EPA has

taken this action after close

communication with the states.

As previously discussed, the SIPs

addressed here each contained a

mismatch between their PSD

applicability provisions and their state

assurances of adequate resources. EPA

erred in approving those SIPs. Since this

error recently became apparent, EPA is

now promptly taking steps to correct the

error in a manner it deems appropriate.

We find that use of our CAA section

110(k)(6) authority is appropriate

because we are able to rectify the

problem with the SIP without the need

for state action, and because this

approach provides the most efficient

means for making the correction.

Importantly, however, EPA is not basing

its error correction on a change in its

approach to an old policy, but rather on

a flaw in the SIP that existed at the time

of EPA's action on the SIP but which

has only recently become apparent.

Section 110(k)(6) of the CAA is

available to correct any error in a SIP;

EPA disagrees with the commenters

who state that this provision may only

be used for technical or clerical errors.

As previously discussed, the text of

CAA section 110(k)(6) applies the

provision broadly to any mistake, and

does not limit the provision's

applicability to only technical or

clerical errors. Congress's passage of

CAA section 110(k)(6) in 1990 in fact

indicated Congress's intent to reinforce

EPA's broad authority to unilaterally

correct any errors in SIP approvals,

coming as it did after the Third Circuit

adopted a narrow interpretation of error

correction authority in Concerned

Citizens of Bridesburg v. U.S. EPA, 836

F.2d 777 (1987).

Conversely, commenters' concerns

that this rule sets a troubling precedent

because it is unguided by any standards,

criteria or precedent are unfounded.

This rule is based on a flaw in the

relevant SIPs and EPA's error in

approving the SIPs with that flaw. EPA's

application of CAA section 110(k)(6) is,

by the terms of that provision, limited

to an error correction, and this action

does not go beyond that limit.

EPA conducted notice and comment

on the approval-narrowing for each

relevant SIP. This notice and comment

process, followed by the issuance of the

final rule, corrects the errors in these

SIPs in the same manner that EPA

previously approved the SIPs. EPA also

made an individualized determination

regarding each affected SIP that the SIP

contains a mismatch between its PSD

applicability and state assurances

provisions. For each SIP, this mismatch

has been made evident, as previously

discussed, by (i) EPA's finding in the

Tailoring Rule that under their current

SIPs, the states would be required to

process an enormous number of PSD

permits for small GHG-emitting sources,

which would overwhelm state

resources; and (ii) the fact that no state

has objected to this finding and asserted

that it does have adequate resources, or

that it previously assured EPA it would

have adequate resources, for this

purpose.

EPA's narrowing of approval amounts

to a revision to the federal SIP, but that

is inherent in its ability to correct its SIP

action under CAA section 110(k)(6).

EPA is not changing the state law

component of the SIP, which remains

fully state enforceable.

B. Comments on Potential Triggering of

Anti-Backsliding Provisions

Some commenters expressed concern

that anti-backsliding provisions would

prevent revision of SIPs to increase the

significance threshold for GHG

emissions. Commenters were concerned

that the EPA's approach to ask states to

quickly revise their SIPs to comport

with the increased significance

thresholds is likely to be challenged by

activist groups citing the CAA's antibacksliding provisions, which limit

relaxation in certain rules. Under EPA's

interpretation of PSD applicability, once

the LDVR requires PSD to apply to

GHGs, the existing thresholds contained

in SIPs could be alleged by activist

groups to become binding on GHGs

under the anti-backsliding arguments

that these groups are currently

advancing in various court cases. Thus,

even if a state wanted to revise its

regulations similarly to the federal

Tailoring Rule and thereby relax the

threshold, the anti-backsliding

provision might prevent it. (5140, 5181,

5278). One commenter was also

concerned more generally that antibacksliding rules prevent EPA from

"adjust[ing] greenhouse gas levels"

under the Tailoring Rule. (5713).

None of these comments raised

objections to this action narrowing

EPA's prior approval of SIPs. Thus, it is

not necessary to address these

comments here. However, to the extent

the concern expressed in these

comments could have been raised by

changes to SIPs resulting from EPA's

narrowing of its prior approval, we

choose to address the comments here in

the interest of greater responsiveness.

While many commenters did not

clarify which CAA provisions they

considered "anti-backsliding

provisions", they most likely meant to

refer to CAA sections 110(1), 110(n)(1),

or 193. However, the current rule does

not violate any of these provisions.

82547
82548 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

Under CAA section 193, EPA may

only modify any "control requirement"

applicable to a nonattainment area that

was required or in effect prior to

November 15, 1990 if "the modification

insures equivalent or greater emission

reductions of such air pollutant." These

provisions of section 193 apply to

controls for pollutants for which an area

is designated nonattainment. No area of

the country is designated nonattainment

for GHGs. This rule prevents certain

sources or modification projects that are

not currently subject to PSD

requirements from becoming subject to

PSD due to their emissions of GHGs on

January 2, 2010 when GHGs will

become "subject to regulation" for

purposes of the PSD program. GHGs are

not currently subject to regulation under

the PSD program. Furthermore, the PSD

program does not require emission

offsets for new or modified major

sources, and EPA does not consider the

PSD program to achieve "emissions

reductions" for purposes of section 193.

Rather, the program merely limits future

emissions growth. Thus, section 193

would not limit alteration of a PSD

program because any revised program

would meet the statutory test. Therefore,

the current rule does not violate CAA

section 193.

CAA section 110(1) provides that EPA

shall not approve a SIP revision "if the

revision would interfere with any

applicable requirement concerning

attainment and reasonable further

progress (as defined in [CAA section

171]), or any other applicable

requirement of this chapter." CAA

section 171 defines "reasonable further

progress" as "such annual incremental

reductions in emissions of the relevant

air pollutant as are required by this part

or may reasonably be required by the

Administrator for the purpose of

ensuring attainment of the applicable

national ambient air quality standard by

the applicable date." The current rule

does not approve a SIP revision. The

current rule also would not interfere

with attainment of any NAAQS, or with

any other requirement of the CAA.

CAA section 110(n)(1) states that a

provision that was in a SIP prior to

November 15, 1990 may only be

changed if it is "approved or

promulgated by [EPA] pursuant to this

chapter." The current rule is being

approved by EPA pursuant to this

chapter. The procedure of approval is

pursuant to the CAA, and the rule's

substance does not violate CAA section

110(1) or any other CAA provision.

CAA section 172(e), which was cited

specifically by one commenter, applies

to EPA action to "relax a [NAAQS] after

November 15, 1990." Since GHGs are

not a NAAQS pollutant and this rule

does not change any NAAQS standard,

this provision is not applicable to the

current rule.

C. Comments on Persisting Practical

Difficulties at the State Level

EPA received comments that raised

concern that EPA is ignoring the fact

that it will take time for the states to

amend their laws and regulations to

accommodate the revised applicability

thresholds. Commenters expressed

concern that it will be of little help for

EPA to quickly amend the relevant SIPs

because states will still be bound to

implement their underlying programs

until corrections can be made. For

sources, this means no relief from the

statutory thresholds for a lengthy time

after GHGs become regulated. (4019,

4095, 4866, 5080, 5083, 5084, 5131,

5133, 5140, 5179, 5278, 5317, 16411)

After this action is published and

becomes effective, federal law will not

require affected states to issue PSD

permits for GHGs emitted at levels

below the Tailoring Rule thresholds.

Thus, sources in these states emitting

GHGs below the Tailoring Rule

thresholds will not be federally required

to obtain a PSD permit for those

emissions.

No action by EPA can amend state

law requirements, or relieve emitters of

responsibilities under state law.

However, most states affected by this

rule have already begun the process of

amending their state regulations to

incorporate the Tailoring Rule

thresholds. As previously noted, almost

all states are on track to have changed

their state law to incorporate the

Tailoring Rule thresholds by January 2,

2011 or very shortly thereafter. EPA

encourages states to continue to pursue

this process. Once states change their

state law to incorporate the Tailoring

Rule thresholds, then both the state law

and federal law permitting requirements

will be resolved. States can then process

their revised state laws into SIP

revisions and submit them for approval.

In the proposed GHG PSD SIP Call

preamble, EPA included

recommendations for some states to

streamline their SIP development

processes; those recommendations

could be used here. In the same

proposal, EPA encouraged states to

submit their SIP revisions for parallel

processing, and thereby speed EPA

approval. EPA recognizes that it may

take some months to receive EPA

approval of the SIP revision, but during

this time, the State and Federal law will

already each have been changed. This

rule thus helps ensure that sources

emitting GHGs at below-Tailoring Rule

levels will have relief from GHG

permitting requirements as early as

possible.

D. Comments on Preferred Alternative

Courses of Action

EPA received comments advocating

alternate courses of action to address

SIPs with the 100/250 tpy thresholds for

GHGs. These comments include the

following:

* If EPA wishes to pursue its current

regulatory strategy, it could amend the

minimum PSD SIP elements in 40 CFR

51.166 and allow states to develop and

submit SIP revisions in accordance with

those new provisions. (5182, 5317)

* The EPA should exercise all

available legal authority to ensure that

SIPs come into conformity with the

Tailoring Rule. Instead of taking no

action other than to limit approval of

SIPs, EPA should mandate or strongly

encourage states to revise their PSD

rules to reflect the higher thresholds.

This could be accomplished through an

expedited SIP call or by conditioning

section 105 grant funding on

appropriate revisions to the PSD rules in

SIP-approved states. (4691)

* An industry commenter (4298)

supports EPA's efforts to narrow or

conform its prior approvals through

CAA sections 301(a)(1) and 110(k)(6)

with respect to applicability thresholds.

However, the commenter believes EPA

should take affirmative steps to ensure

that states immediately either revise

their regulations to raise existing lower

thresholds or demonstrate that they

have adequate resources and funding to

manage their programs utilizing those

existing lower thresholds. The

commenter also believes that EPA

should not finalize any action that

would trigger GHG permitting until each

state program has been amended (4298).

* An environmental group

commenter (5306) believes that EPA and

the states should collaborate on an

expeditious, smooth transition in

carrying out obligations to address

GHGs under the PSD programs. The

commenter believes it is reasonable for

EPA to call for a SIP revision under

section 110(k)(5) with an expeditious

deadline for states to submit corrective

plan revisions. Further, according to the

commenter, EPA can ease state adoption

of PSD permit program revisions and

expedite EPA's own review and

approval of the states' adjustments by

adopting model guidelines to help

inform state rulemaking. The

commenter recommends that EPA

should promptly start the process with

the aim to complete it by the end of

2010.
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

As previously noted, EPA is strongly

encouraging states to amend their SIP

requirements to conform to the PSD

thresholds established in the final

Tailoring Rule, and this rule is

consistent with such action. In fact,

many states have already begun the

process of amending state regulations

and submitting those changes to EPA for

approval. EPA is working closely with

many states to help complete this

process as expeditiously as possible.

This close interaction obviates the need

for guidelines on how states might

amend their laws. EPA's narrowing of

our prior approval of some SIPs is

intended to assure that at least the

federal law component of these SIPs

will, in essence, reflect the Tailoring

Rule thresholds, since not all states

whose SIPs will cover GHGs on January

2, 2011 will be able to amend their SIP

thresholds by that date.

EPA does not feel that a SIP call

would provide any additional benefit

over the current action. Since the

affected states are already making efforts

to change their state laws and amend

their SIPs, and have already informed

EPA about their plans to make these

changes in a time-effective manner, a

SIP call would not spur any action that

is not already occurring.

Neither this action nor the Tailoring

Rule triggered GHG permitting for any

state. The Light Duty Vehicle Rule, in

conjunction with the operation of the

Clean Air Act, has already triggered the

applicability of PSD to GHG emitting

sources.

VI. Effective Date

This rule is being issued under CAA

§ 307(d)(1)(V). CAA section 307(d)

specifies that rules issued under its

provisions are not subject to APA

section 553. Thus, the 30-day delay in

effective date from the date of signature

required under the APA does not apply.

In addition, even if APA section 553

were to apply, APA section 553(d)

provides an exception for any action

that grants or recognizes an exemption

or relieves a restriction. Since the effect

of this rule will be to relieve many small

sources (and permitting authorities)

from certain PSD obligations, EPA

believes that an immediate effective

date is consistent with the purposes

under APA section 553(d). EPA believes

there is good cause for an immediate

effective date due to the regulatory

confusion that would result if states

were federally required to implement

PSD GHG permitting at only the

statutory thresholds starting on January

2, 2010. In addition, since this is not a

major rule under the Congressional

Review Act, the 60-day delay in

effective date required for major rules

under the CRA does not apply. This rule

is thus effective immediately.

VII. Statutory and Executive Orders

A. Executive Order 12866-Regulatory

Planning and Review

Under Executive Order (EO) 12866

(58 FR 51735, October 4, 1993), this

action is a "significant regulatory action"

because it raises novel legal or policy

issues. Accordingly, EPA submitted this

action to the Office of Management and

Budget (OMB) for review under EO

12866 and any changes made in

response to OMB recommendations

have been documented in the docket for

this action.

B. Paperwork Reduction Act

This action does not impose any new

information collection burden. Instead,

this action will significantly reduce

costs incurred by sources and

permitting authorities relative to the

costs that would be incurred if EPA did

not revise this rule. In the final

Tailoring Rule, EPA stated that based on

its GHG threshold data analysis, it

estimated that over 80,000 new and

modified facilities per year, nationally,

would be subject to PSD review based

on applying a GHG emissions threshold

of 100/250 tpy using a CO 2e metric. This

was compared with the 280 PSD permits

currently issued per year. Thus, without

the final Tailoring Rule, the

administrative burden for permitting

GHG emissions would increase 280-

fold, an unmanageable increase. The

current action takes further steps to

implement the burden-reduction

implemented by the final Tailoring

Rule.

In addition, OMB has previously

approved the information collection

requirements contained in the existing

regulations for PSD (see, e.g., 40 CFR

52.21) under the provisions of the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq. and has assigned OMB

control number 2060-0003. The OMB

control numbers for EPA's regulations

in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the APA or any other statute

unless the agency certifies that the rule

will not have a significant economic

impact on a substantial number of small

entities. Small entities include small

businesses, small organizations, and

small governmental jurisdictions.

For purposes of assessing the impacts

of this final action on small entities,

small entity is defined as: (1) A small

business that is a small industrial entity

as defined in the U.S. SBA size

standards (see 13 CFR 121.201); (2) a

small governmental jurisdiction that is a

government of a city, county, town,

school district, or special district with a

population of less than 50,000; or (3) a

small organization that is any not-forprofit enterprise that is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of this final rule on small

entities, I certify that this final action

will not have a significant economic

impact on a substantial number of small

entities. In determining whether a rule

has a significant economic impact on a

substantial number of small entities, the

impact of concern is any significant

adverse economic impact on small

entities, since the primary purpose of

the regulatory flexibility analyses is to

identify and address regulatory

alternatives which "minimize any

significant economic impact of the

* * * rule on small entities." 5 U.S.C.

603 and 604. Thus, an agency may

certify that a rule will not have a

significant economic impact on a

substantial number of small entities if

the rule relieves regulatory burden, or

otherwise has a positive economic effect

on all of the small entities subject to the

rule.

We have therefore concluded that this

final rule will relieve the federal

regulatory burden for most affected

small entities associated with the major

PSD permit programs for new or

modified major sources that emit GHGs,

including small businesses, in the

affected states. This is because this rule

narrows its approval of SIPs in affected

states so as to raise the approved PSD

applicability thresholds for sources that

emit GHGs. As a result, the program

changes provided in this rule are not

expected to result in a significant

economic impact on a substantial

number of small entities.

D. Unfunded Mandates Reform Act

This rule does not contain a federal

mandate that may result in expenditures

of $100 million or more for state, local,

and tribal governments, in the aggregate,

or the private sector in any 1 year. No

state will have an increased burden as

a result of this rule; any burden related

to amending state SIPs to incorporate

different GHG emissions thresholds

resulted from the final Tailoring Rule,

not the current rule. Thus, this rule is

not subject to the requirements of

sections 202 or 205 of Unfunded

Mandates Reform Act (UMRA).

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82550 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

This rule is also not subject to the

requirements of section 203 of UMRA

because it contains no regulatory

requirements that might significantly or

uniquely affect small governments. This

rule is expected to result in cost savings

and an administrative burden reduction

for all permitting authorities and

permittees in the affected states,

including small governments.

E. Executive Order 13132-Federalism

This action does not have federalism

implications. It will not have substantial

direct effects on the states, on the

relationship between the national

government and the states, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. This final rule

will ultimately simplify and reduce the

burden on state and local agencies

associated with implementing the PSD

permit program, by ensuring that, in

affected states, a source whose GHG

emissions are below the final Tailoring

Rule thresholds will not have to obtain

a PSD permit under federal law. Thus,

Executive Order 13132 does not apply

to this action.

In the spirit of Executive Order 13132,

and consistent with EPA policy to

promote communications between EPA

and state and local governments, EPA

specifically solicited comments on the

proposed rule from state and local

officials. EPA has also consulted with

the National Association of Clean Air

Agencies and representatives from some

individual states in developing this rule.

F. Executive Order 13175-Consultation

and Coordination With Indian

Governments

Subject to Executive Order 13175 (65

FR 67249, November 9, 2000) EPA may

not issue a regulation that has tribal

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the federal

government provides the funds

necessary to pay the direct compliance

costs incurred by tribal governments, or

EPA consults with tribal officials early

in the process of developing the

proposed regulation and develops a

tribal summary impact statement.

EPA has concluded that this action

may have tribal implications. However,

it will neither impose substantial direct

compliance costs on tribal government,

nor preempt tribal law. There are no

tribal authorities currently issuing major

NSR permits; however, this may change

in the future.

EPA consulted with tribal officials

early in the process of developing the

final Tailoring Rule regulation, which

the current rule helps to implement, to

allow them to have meaningful and

timely input into its development. Prior

to publishing the proposed Tailoring

Rule, EPA published an advance notice

of proposed rulemaking (ANPR) that

included GHG tailoring options for

regulating GHGs under the CAA. (73 FR

44354, July 30, 2008). As a result of the

ANPR, EPA received several comments

from tribal officials on differing GHG

tailoring options presented in the ANPR

which were considered in the proposed

Tailoring Rule and final Tailoring Rule.

Additionally, EPA also specifically

solicited comment from tribal officials

on the proposed Tailoring Rule (74 FR

55292, October 27, 2009) in which the

actions which EPA now takes were first

proposed.

G. Executive Order 13045-Protection of

Children From Environmental Health

and Safety Risks

EPA interprets Executive Order 13045

(62 FR 19885, April 23, 1997) as

applying only to those regulatory

actions that concern health or safety

risks, such that the analysis required

under section 5-501 of the Executive

492 Order has the potential to influence

the regulation. This action is not subject

to Executive Order 13045 because it

does not establish an environmental

standard intended to mitigate health or

safety risks.

H. Executive Order 13211-Actions

That Significantly Affect Energy Supply,

Distribution, or Use

This action is not a "significant energy

action" as defined in Executive Order

13211 (66 FR 28355 (May 22, 2001)),

because it is not likely to have a

significant adverse effect on the supply,

distribution, or use of energy. Further,

we have concluded that this rule is not

likely to have any adverse energy effects

because this action would not create any

new requirements for sources in the

energy supply, distribution, or use

sectors.

L National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 ("NTTAA"), Public Law

104-113, 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. The NTTAA directs EPA to

provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

This action does not involve technical

standards. Therefore, EPA did not

consider the use of any voluntary

consensus standards.

J. Executive Order 12898-Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Populations

Executive Order 12898 (59 FR 7629

(Feb. 16, 1994)) establishes federal

executive policy on environmental

justice. Its main provision directs

federal agencies, to the greatest extent

practicable and permitted by law, to

make environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies, and activities on minority

populations and low-income

populations in the United States.

EPA has concluded that it is not

practicable to determine whether there

would be disproportionately high and

adverse human health or environmental

effects on minority and/or low income

populations from this rule. This rule is

necessary in order to allow for the

continued implementation of permitting

requirements established in the CAA.

Specifically, without this rule, the

affected states' CAA PSD permitting

programs would become overwhelmed

and unmanageable by the untenable

number of GHG sources that would

become newly subject to them. This

would result in severe impairment of

the functioning of these programs with

potentially adverse human health and

environmental effects nationwide.

Under this rule and the findings under

the final Tailoring Rule, EPA is ensuring

that the affected states' CAA permitting

programs continue to operate by

narrowing their applicability to the

maximum number of sources the

programs can possibly handle. This

approach is consistent with

congressional intent as it phases in

applicability, starting with the largest

sources initially, and then other sources

over time, so as not to overwhelm state

permitting programs. By doing so, this

rule allows for the maximum degree of

environmental protection possible while

providing regulatory relief for the

unmanageable burden that would

otherwise exist. Therefore, we believe it

is not practicable to identify and

address disproportionately high and

adverse human health or environmental

effects on minority populations and low
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

income populations in the United States

under this final rule, though we do

believe that this rule will ensure that

states can continue to issue PSD permits

to significant sources of air pollution.

K. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by SBREFA,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2). This rule

will be effective December 30, 2010.

L. Judicial Review

Section 307(b)(1) of the CAA specifies

which Federal Courts of Appeal have

jurisdiction to hear petitions for review

of which final actions by EPA. This

section provides, in part, that petitions

for review must be filed in the Court of

Appeals for the District of Columbia

Circuit: (i) When the agency action

consists of "nationally applicable

regulations promulgated, or final actions

taken, by the Administrator," or (ii)

when such action is locally or regionally

applicable, if "such action is based on a

determination of nationwide scope or

effect and if in taking such action the

Administrator finds and publishes that

such action is based on such a

determination."

This rule narrowing EPA's previous

approvals of SIPs in 24 states to correct

a flaw in those SIPs is "nationally

applicable" within the meaning of

section 307(b)(1). The circumstances

that have led to this rulemaking are

national in scope and are substantially

the same for each affected state. They

include EPA's promulgation of

nationally applicable GHG requirements

that, in conjunction with the operation

of the CAA PSD provisions, have

resulted in GHG-emitting sources

becoming subject to PSD. Moreover, in

this rule, EPA is applying uniform

principles for each affected state in this

rule. At the core of this rulemaking is

EPA's recognition that when it approved

each of the affected SIPs' PSD

applicability provisions, it did so in the

face of a mismatch-common to each

SIP-between the breadth of those

provisions and the scope of the resource

assurances the states provided. EPA is

now addressing this flaw in numerous

SIPs across the country through the

CAA section 110(k)(6) error correction

provisions. EPA's analytical approach

for each SIP is the same, its

determination that each SIP was flawed

and therefore that EPA erred in its

approval of each SIP is the same, and

EPA's remedial action of rescinding its

previous approval of part of the SIP and

thereby narrowing its approval of the

SIP is the same. This rulemaking action

is supported by a single administrative

record, and does not involve factual

questions unique to the different

affected states. In addition, this rule

applies to multiple States in numerous

judicial circuits across the country.

For similar reasons, this rule is based

on determinations of nationwide scope

or effect. EPA uses a uniform legal

interpretation in all the affected States

across the country; for the same reasons

in each case, EPA is determining that

each SIP was flawed and that EPA

therefore erred in approving it.

Similarly, EPA is determining that the

appropriate remedial action is to rescind

its approval in part and thereby narrow

its approval, and this too is the same for

each state. Because the states are spread

across the nation, each of these

determinations is nationwide in scope

or effect. Moreover, EPA is making these

determinations and promulgating this

action within the context of nationwide

rulemakings and interpretation of the

applicable CAA provisions, as noted

above.

Thus, any petitions for judicial review

of this action must be filed in the United

States Court of Appeals for the District

of Columbia Circuit by February 28,

2011. Any such judicial review is

limited to only those objections that are

raised with reasonable specificity in

timely comments. Filing a petition for

reconsideration by the Administrator of

this final rule does not affect the finality

of this rule 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. Under section 307(b)(2) of the

Act, the requirements of this final action

may not be challenged later in civil or

criminal proceedings brought by us to

enforce these requirements. Pursuant to

section 307(d)(1)(V) of the Act, the

Administrator determines that this

action is subject to the provisions of

section 307(d). Section 307(d)(1)(V)

provides that the provisions of section

307(d) apply to "such other actions as

the Administrator may determine." This

action finalizes elements of a previous

proposed action-the Prevention of

Significant Deterioration and Title V

Greenhouse Gas Tailoring Rule

Proposed Rule (74 FR 55292, October

27, 2009).

VIII. Statutory Authority

The statutory authority for this action

is provided by sections 101, 110, and

301 of the CAA as amended (42 U.S.C.

7401, 7410, and 7601). This action is

also subject to section 307(d) of the CAA

(42 U.S.C. 7407(d)).

List of Subjects in 40 CFR Part 52

Administrative practice and

procedure, Air pollution control, Carbon

dioxide, Carbon dioxide equivalents,

Environmental protection, Greenhouse

gases, Hydrofluorocarbons,

Incorporation by reference,

Intergovernmental relations, Methane,

Nitrous oxide, Perfluorocarbons,

Reporting and recordkeeping

requirements, Sulfur hexafluoride.

Dated: December 23, 2010.

Lisa P. Jackson,

Administrator.

* For the reasons stated in the preamble,

title 40, chapter I of the Code of Federal

Regulations is amended as set forth

below.

PART 52-[AMENDED]

m 1. The authority citation for part 52

continues to read as follows:

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

Subpart B-Alabama

* 2. Section 52.53 is revised to read as

follows:

§ 52.53 Approval Status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

Alabama's plans for the attainment and

maintenance of the national standards

under section 110 of the Clean Air Act.

Furthermore, the Administrator finds

the plans satisfy all requirements of Part

D, Title I, of the Clean Air Act as

amended in 1977. In addition,

continued satisfaction of the

requirements of Part D for the ozone

portion of the SIP depends on the

adoption and submittal of RACT

requirements by July 1, 1980 for the

sources covered by CTGs issued

between January 1978 and January 1979

and adoption and submittal by each

subsequent January of additional RACT

requirements for sources covered by

CTGs issued by the previous January.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

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(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in EPA-approved Alabama

Department of Environmental

Management (ADEM) Rules 335-3-14-

.04(1)(d) thru (i) and 335-3-14-

.04(2)(u)) and a significant net emissions

increase (as defined in EPA-approved

Alabama Department of Environmental

Management (ADEM) Rules 335-3-14-

.04(2)(c) and 335-3-14-.04(2)(w)) occur.

For the pollutant GHGs, an emissions

increase shall be based on tpy CO 2 e, and

shall be calculated assuming the

pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2e instead of applying the

value in Alabama Department of

Environmental Management (ADEM)

Rules 335-3-14-.04(2)(w).

Subpart F-California

* 3. Section 52.223 is amended by

adding paragraphs (f), (g), and (h) to

read as follows:

§52.223 Approval status.

(f)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in North Coast Unified

Air Quality Management District's

approved plan apply to stationary

sources of greenhouse gas (GHGs)

emissions, the Administrator approves

that application only to the extent that

GHGs are "subject to regulation", as

provided in this paragraph (b), and the

Administrator takes no action on that

application to the extent that GHGs are

not "subject to regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in the EPA-approved North

Coast Unified Air Quality Management

District rules at R1-1-130(s2)) and a

significant net emissions increase (as

defined in the North Coast Unified Air

Quality Management District rules at

Ri-1-130(nl)) occur. For the pollutant

GHGs, an emissions increase shall be

based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in

the EPA-approved North Coast Unified

Air Quality Management District rules

at Ri-1-130(s2).

(g)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in Northern Sonoma

County Air Pollution Control District's

approved plan apply to stationary

sources of greenhouse gas (GHGs)

emissions, the Administrator approves

that application only to the extent that

GHGs are "subject to regulation", as

provided in this paragraph (b), and the

Administrator takes no action on that

application to the extent that GHGs are

not "subject to regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in the EPA-approved

Northern Sonoma County Air Pollution

Control District rules at R1-1-130(s2))

and a significant net emissions increase

(as defined in the Northern Sonoma

County Air Pollution Control District

rules at Ri-1-130(nl)) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in

the EPA-approved Northern Sonoma

County Air Pollution Control District

rules at R1-1-130(s2).

(h)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in Mendocino County

Air Quality Management District's

approved plan apply to stationary

sources of greenhouse gas (GHGs)

emissions, the Administrator approves

that application only to the extent that

GHGs are "subject to regulation", as

provided in this paragraph (b), and the

Administrator takes no action on that

application to the extent that GHGs are

not "subject to regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in the EPA-approved

Mendocino County Air Quality

Management District rules at R1-1-

130(s2)) and a significant net emissions

increase (as defined in the Mendocino

County Air Quality Management District

rules at Ri-1-130(ml) (1982)) occur.

For the pollutant GHGs, an emissions

increase shall be based on tpy CO 2e, and

shall be calculated assuming the

pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2e instead of applying the

value in the EPA-approved Mendocino

County Air Quality Management District

rules at R1-1-130(s2).

Subpart G-Colorado

* 4. Section 52.323 is revised to read as

follows:

§ 52.323 Approval status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

Colorado's plan for the attainment and

maintenance of the national standards

under section 110 of the Clean Air Act.

Furthermore, the Administrator finds

that the plan satisfies all requirements

of Part D, Title 1, of the Clean Air Act

as amended in 1977, except as noted

below.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) the term greenhouse gas shall mean

the air pollutant defined in 40 CFR

86.1818-12(a) as the aggregate group of

six greenhouse gases: Carbon dioxide,

nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) the term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

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No. 250/Thursday, December 30, 2010/Rules and Regulations

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) the term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in paragraphs I.A.2. through

I.A.3, and I.B of Part D of Colorado's Air

Quality Commission's Regulation

Number 3) and a significant net

emissions increase (as defined in

paragraphs II.A.26 and II.A.42.a of Part

D of Colorado's Air Quality

Commission's Regulation Number 3)

occur. For the pollutant GHGs, an

emissions increase shall be based on tpy

CO 2e, and shall be calculated assuming

the pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2e instead of applying the

value in paragraph II.A.42.b of Part D of

Colorado's Air Quality Commission's

Regulation Number 3.

Subpart L-Georgia

0 5. Section 52.5 72 is revised to read as

follows:

§52.572 Approval status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

Georgia's plans for the attainment and

maintenance of the national standards

under section 110 of the Clean Air Act.

Furthermore, the Administrator finds

the plans satisfy all requirements of Part

D, Title I, of the Clean Air Act as

amended in 1977, except as noted

below.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 40 CFR 52.21(a)(2)(iv)

(2006) and the EPA-approved Georgia

Environmental Protection Division

(EPD) Rules 391-3-1-.02(7)(a)2.(I) thru

(IV) (2006)) and a significant net

emissions increase (as defined in 40

CFR 52.21(b)(3) and (b)(23)(i) (2006))

occur. 40 CFR 52.21 (2006) is presently

incorporated by reference into Georgia's

approved plan at EPA-approved Georgia

EPD Rule 391-3-1-.02(7). For the

pollutant GHGs, an emissions increase

shall be based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in 40

CFR 52.21(b)(23)(ii).

Subpart P-Indiana

* 6. Section 52.773 is amended by

adding paragraph (k) to read as follows:

§ 52.773 Approval status.

(k)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (k), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (k)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(k)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (k)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

82554 Federal Register/Vol. 75,
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

procedures in [326 IAC-2-2-2(d) of

Indiana's Administrative Code) and a

significant net emissions increase (as

defined in 326 IAC-2-1, paragraphs (ii)

and (ww) of Indiana's Administrative

Code) occur. For the pollutant GHGs, an

emissions increase shall be based on tpy

CO 2e, and shall be calculated assuming

the pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2e instead of applying the

value in paragraph 326 IAC 2-2-

1(ww)(1)(V) of Indiana's Administrative

Code.

Subpart Q-Iowa

* 7. Section 52.822 is amended by

adding paragraph (b) to read as follows:

§52.822 Approval status.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 40 CFR 52.21(a)(2)(iv))

and a significant net emissions increase

(as defined in 40 CFR 52.21(b)(3) and

(b)(23)(i)) occur. For the pollutant

GHGs, an emissions increase shall be

based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and "significant" is defined as 75,000 tpy

CO 2e instead of applying the value in 40

CFR 52.21(b)(23)(ii) of this section.

Subpart T-Louisiana

* 8. Section 5 2.986 is amended by

adding paragraph (c) to read as follows:

§52.986 Significant deterioration of air

quality.

(c)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in Louisiana's

approved plan apply to stationary

sources of greenhouse gas (GHGs)

emissions, the Administrator approves

that application only to the extent that

GHGs are "subject to regulation", as

provided in this paragraph (c), and the

Administrator takes no action on that

application to the extent that GHGs are

not "subject to regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (c)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy C0 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy C0 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy C0 2e or more.

(4) For purposes of this paragraph

(c)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (c)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in the EPA-approved

Louisiana Administrative Code (LAC),

Title 33, Part III, Chapter 5, Section 509,

Subsection B) and a significant net

emissions increase (as defined in LAC

33:III.509.B) occur. For the pollutant

GHGs, an emissions increase shall be

based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in

the EPA-approved definition of

"significant" at LAC 33:111.509.B.

Subpart U-Maine

0 9. Section 52.1022 is revised to read

as follows:

§ 52.1022 Approval status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

Maine's plan, as identified in § 52.1020,

for the attainment and maintenance of

the national standards under section

110 of the Clean Air Act.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

82555
82556 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy C0 2 equivalent

emissions (C0 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy C0 2e.

(iii) the term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 06-096 1. of Chapter 100

of Maine's Bureau of Air Quality

Control regulations) and a significant

net emissions increase (as defined in

06-096, paragraphs 89 and 144 A of

Chapter 100 of Maine's Bureau of Air

Quality Control regulations) occur. For

the pollutant GHGs, an emissions

increase shall be based on tpy C0 2e, and

shall be calculated assuming the

pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy C02e instead of applying the

value in 06-096, paragraphs 143 and

144 D of Chapter 100 of Maine's Bureau

of Air Quality Control regulations.

Subpart V-Maryland

* 10. Section 52.1073 is amended by

adding paragraph (h) to read as follows:

§52.1073 Approval status.

(h)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (h), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (h)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(h)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (h)(4)(ii)(A) of this section for

each gas to compute a tpy C0 2e.

(iii) The term emissions increase shall

mean that a net significant emissions

increase (as defined in 40 CFR part

52.21(b)(3)(i) (2000) and the EPAapproved Maryland rules at COMAR

26.11.06.14 (state effective date 10/10/

2001)). For the pollutant GHGs, a net

emissions increase shall be based on tpy

CO 2e, and shall be calculated assuming

the pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2e instead of applying the

value in 40 CFR 52.21(b)(23)(ii) (2000).

Subpart Z-Mississippi

* 11. Section 52.1272 is revised to read

as follows:

§ 52.1272 Approval status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

Mississippi's plan for the attainment

and maintenance of national standards

under section 110 of the Clean Air Act.

Furthermore, the Administrator finds

the plans satisfy all requirements of Part

D, Title I, of the Clean Air Act as

amended in 1977.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation," as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy C0 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy C0 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy C0 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 40 CFR 52.21(a)(2)(iv)

(2007)) and a significant net emissions

increase (as defined in paragraphs 40

CFR 52.21(b)(3) and (b)(23)(i) (2007))

occur. 40 CFR 52.21 (2007) is presently

incorporated by reference into

Mississippi's plan at EPA-approved

Mississippi Commission on

Environmental Quality Rule APC-S-5.

For the pollutant GHGs, an emissions

increase shall be based on tpy CO 2e, and

shall be calculated assuming the

pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2e instead of applying the

value in 40 CFR 52.21(b)(23)(ii)(2007).

Subpart AA-Missouri

* 12. Section 52.1323 is amended by

adding paragraph (n) to read as follows:

§52.1323 Approval status.

(n)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation," as provided in this

paragraph (n), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (n)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(n)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (n)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 40 CFR 52.21(a)(2)(iv))

and a significant net emissions increase

(as defined in 40 CFR 52.21(b)(3) and

(b)(23)(i)) occur. For the pollutant

GHGs, an emissions increase shall be

based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2 e instead of applying the value in 40

CFR 52.21(b)(23)(ii).

Subpart EE-New Hampshire

* 13. Section 52.1522 is amended by

adding paragraph (c) to read as follows:

§52.1522 Approval status.

(c)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (c), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (c)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(c)-

(i) the term greenhouse gas shall mean

the air pollutant defined in 40 CFR

86.1818-12(a) as the aggregate group of

six greenhouse gases: Carbon dioxide,

nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

82557
82558 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (c)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2 e.

(iii) the term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 40 CFR 52.21(a)(2)(iv))

and a significant net emissions increase

(as defined in paragraphs 40 CFR

52.21(b)(3) and (b)(23)(i)) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in 40

CFR 52.21(b)(23)(ii).

Subpart GG-New Mexico

* 14. Section 52.1634 is amendedby

adding paragraphs (d) and (e) to read as

follows:

§52.1634 Significant deterioration of air

quality.

(d)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in New Mexico's

approved plan apply to stationary

sources of greenhouse gas (GHGs)

emissions, the Administrator approves

that application only to the extent that

GHGs are "subject to regulation", as

provided in this paragraph (b), and the

Administrator takes no action on that

application to the extent that GHGs are

not "subject to regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or (ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy Ctze or more.

(4) For purposes of this paragraph

(b)-

(i) the term greenhouse gas shall mean

the air pollutant defined in 40 CFR

86.1818-12(a) as the aggregate group of

six greenhouse gases: Carbon dioxide,

nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) the term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in the EPA-approved New

Mexico Environment Department

(NMED) rules at New Mexico

Administrative Code (NMAC)

20.2.74.200, Subsection D) and a

significant net emissions increase (as

defined in the EPA-approved NMED

rules at NMAC 20.2.74.7, paragraphs

(AK), (AV), and (AW)) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in

the EPA-approved NMED rules at Table

2 of NMAC 20.2.74.502.

(e)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in Bernallilo County/

City of Albuquerque's approved plan

apply to stationary sources of

greenhouse gas (GHGs) emissions, the

Administrator approves that application

only to the extent that GHGs are "subject

to regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2 e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2 e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2 e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) the term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in the EPA-approved

Bernallilo County/City of Albuquerque

rules at NMAC 20.11.61.11, Subsection

D) and a significant net emissions

increase (as defined in the EPAapproved Bernanillo County/City of

Albuquerque rules at NMAC 20.11.61.7,

paragraphs (00), (YY), and (ZZ)) occur.

For the pollutant GHGs, an emissions

increase shall be based on tpy CO 2e, and

shall be calculated assuming the

pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2e instead of applying the

value in the EPA-approved Bernallilo

County/City of Albuquerque rules at

Table 2 of NMAC 20.11.61.27.

Subpart Il-North Carolina

* 15. Section 52.1772 is amendedby

adding paragraph (c) to read as follows:

§ 52.1772 Approval status.

(c)(1) Insofar as the Prevention of

Significant Deterioration (PSD)
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (c), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (c)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(c)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (c)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that a significant net emissions

increase (as defined in paragraphs 40

CFR 51.166(b)(3) (1996) and 40 CFR

51.166(b)(23)(i) (1996)) occurs. 40 CFR

51.166 (1996) is presently incorporated

by reference into North Carolina's plan

at EPA-approved North Carolina Rule

15A NCAC 02D-.544. For the pollutant

GHGs, an emissions increase shall be

based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in 40

CFR 51.166(b)(23)(ii) (1996).

Subpart KK-Ohio

* 16. Section 52.1873 is revised to read

as follows:

§52.1873 Approval status.

(a) With the exceptions set forth in

this subpart the Administrator approves

Ohio's plan for the attainment and

maintenance of the National Ambient

Air Quality Standards under section 110

of the Clean Air Act. Furthermore, the

Administrator finds the plan satisfies all

the requirements of Part D, Title 1 of the

Clean Air Act as amended in 1977,

except as noted below. In addition,

continued satisfaction of the

requirements of Part D for the ozone

portion of the SIP depends on the

adoption and submittal of RACT

requirements by January 1, 1981 for the

sources covered by CTGs between

January 1978 and January 1979 and

adoption and submittal by each

subsequent January of additional RACT

requirements for sources covered by

CTGs issued by the previous January.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) the term greenhouse gas shall mean

the air pollutant defined in 40 CFR

86.1818-12(a) as the aggregate group of

six greenhouse gases: Carbon dioxide,

nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2 e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 3745-31-01(III)(4) of

Ohio's Administrative Code) and a

significant net emissions increase (as

defined in paragraphs 3745-31-01,

paragraphs (SSS) and (LLLLL)(1) of

Ohio's Administrative Code) occur. For

the pollutant GHGs, an emissions

increase shall be based on tpy CO 2e, and

shall be calculated assuming the

pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2 e instead of applying the

value in paragraph 3745-31-

01(LLLLL)(2) of Ohio's Administrative

Code.

Subpart LL-Oklahoma

* 17. Section 52.1929 is amendedby

adding paragraph (c) to read as follows:

§52.1929 Significant deterioration of air

quality.

(c)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in Oklahoma's

approved plan apply to stationary

sources of greenhouse gas (GHGs)

emissions, the Administrator approves

that application only to the extent that

GHGs are "subject to regulation", as

provided in this paragraph (b), and the

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82560 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

Administrator takes no action on that

application to the extent that GHGs are

not "subject to regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) the term greenhouse gas shall mean

the air pollutant defined in 40 CFR

86.1818-12(a) as the aggregate group of

six greenhouse gases: Carbon dioxide,

nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy C0 2 equivalent

emissions (C0 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy C0 2e.

(iii) the term emissions increase shall

mean that both a significant emissions

increase (as calculated using EPAapproved procedures in Oklahoma Air

Pollution Control Regulation 1.4.4(b))

and a significant net emissions increase

(as defined in the EPA-approved

Oklahoma Air Pollution Control

Regulation 1.4.4(b)(3) and (22),

definitions for "net emissions increase"

and "significant) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and "significant" is defined as 75,000 tpy

CO 2e instead of applying the value in

1.4.4(b)(22) of the EPA-approved

definition for "significant" of

Oklahoma's Air Pollution Control

Regulations.

Subpart 00-Rhode Island

* 18. Section 52.2072 is revised to read

as follows:

§52.2072 Approval status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

Rhode Island's plan, as identified in

§ 52.2070 of this subpart, for the

attainment and maintenance of the

national standards under section 110 of

the Clean Air Act. Furthermore, the

Administrator finds the plan satisfies all

requirements of Part D, Title I, of the

Clean Air Act, as amended in 1977,

except as noted below. In addition,

continued satisfaction of the

requirements of Part D for the ozone

portion of the SIP depends on the

adoption and submittal of RACT

requirements by January 1, 1981 for the

sources covered by CTGs issued

between January 1978 and January 1979

and adoption and submittal by each

subsequent January as additional RACT

requirements for sources covered by

CTGs issued by the previous January.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) the term greenhouse gas shall mean

the air pollutant defined in 40 CFR

86.1818-12(a) as the aggregate group of

six greenhouse gases: Carbon dioxide,

nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy C0 2 equivalent

emissions (C0 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy C0 2e.

(iii) the term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 9.1.1 of Rhode Island's

Air Pollution Control Regulation No. 9)

and a significant net emissions increase

(as defined in 9.1.24 and 9.1.34 of

Rhode Island's Air Pollution Control

Regulation No. 9) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy C0 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

C0 2e instead of applying the value for

"any other pollutant" in 9.1.34 of Rhode

Island's Air Pollution Control

Regulation No. 9.

Subpart PP-South Carolina

* 19. Section 52.2122 is amended by

adding paragraph (c) to read as follows:

§52.2122 Approval status.

(c)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (c), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (c)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(c)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (c)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in South Carolina Air

Pollution Control Regulations and

Standards (South Carolina Regulations)

61-62.5, Standard No. 7, paragraph

(a)(2)(iv)) and a significant net

emissions increase (as defined in South

Carolina Air Pollution Control

Regulations and Standards (South

Carolina Regulations) 61-62.5, Standard

No. 7, paragraphs (b)(34) and (b)(49)(i))

occur. For the pollutant GHGs, an

emissions increase shall be based on tpy

CO 2e, and shall be calculated assuming

the pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2e instead of applying the

value in South Carolina Air Pollution

Control Regulations and Standards

(South Carolina Regulations) 61-62.5,

Standard No. 7, paragraph (b)(49)(ii).

Subpart QQ-South Dakota

* 20. Section 52.2172 is revised to read

as follows:

§52.2172 Approval status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

South Dakota's plan as meeting the

requirements of section 110 of the Clean

Air Act, as amended in 1977.

Furthermore, the Administrator finds

that the plan satisfies all requirements

of Part D of the Clean Air Act, as

amended in 1977.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 40 CFR 52.21(a)(2)(iv))

and a significant net emissions increase

(as defined in paragraphs 40 CFR

52.21(b)(3) and (b)(23)(i)) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in 40

CFR 52.21(b)(23)(ii).

Subpart RR-Tennessee

* 21. Section 52.2222 is amended by

adding paragraph (d) to read as follows:

§52.2222 Approval status.

(d)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (d), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (d)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

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82562 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(d)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (d)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in Tennessee Air Pollution

Control Regulation 1200-03-09-

.01(4)(c)(4) and a significant net

emissions increase (as defined in

Tennessee Air Pollution Control

Regulation 1200-03-09-.01, paragraphs

(4)(b)(4) and (4)(b)(24)(i)) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy CO2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in

Tennessee Air Pollution Control

Regulation 1200-03-09-.01, paragraph

(4)(b)(24)(ii).

Subpart TT-Utah

* 22. Section 52.2323 is revised to read

as follows:

§52.2323 Approval status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

Utah's plan as meeting the requirements

of section 110 of the Clean Air Act as

amended in 1977. Furthermore, the

Administrator finds that the plan

satisfies all requirements of Part D, Title

1, of the Clean Air Act as amended in

1977, except as noted below.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) the term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 40 CFR 52.21(a)(2)(iv))

and a significant net emissions increase

(as defined in paragraphs 40 CFR

52.21(b)(3) and (b)(23)(i)) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in 40

CFR 52.21(b)(23)(ii).

Subpart UU-Vermont

* 23. Section 52.2372 is revised to read

as follows:

§ 52.2372 Approval status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

Vermont's plan as identified in

§ 52.2370 for the attainment and

maintenance of the national standards

under section 110 of the Clean Air Act.

Furthermore, the Administrator finds

the plans satisfy all requirements of Part

D, Title I, of the Clean Air Act, as

amended in 1977, except as noted

below. In addition, continued

satisfaction of the requirements of Part

D for the ozone portion of the SIP

depends on the adoption and submittal

of RACT requirements by July 1, 1980

for the sources covered by CTGs issued

between January, 1978 and January,

1979 and adoption and submittal by

each subsequent January of additional

RACT requirements for sources covered

by CTGs issued by the previous January.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO2e; or
Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in the definitions for "actual

emissions" and "allowable emissions"

under section 5-101 of Chapter 5,

subchapter I of Vermont's Air Pollution

Control Environmental Protection

regulations) and a significant net

emissions increase (as defined in the

definitions for "significant" under

section 5-101 of Chapter 5, subchapter

I of Vermont's Air Pollution Control

Environmental Protection regulations)

occur. For the pollutant GHGs, an

emissions increase shall be based on tpy

CO 2e, and shall be calculated assuming

the pollutant GHGs is a regulated NSR

pollutant, and "significant" is defined as

75,000 tpy CO 2e instead of applying the

value in the definition of "major

modification" under section 5-101 of

Chapter 5, subchapter I of Vermont's Air

Pollution Control Environmental

Protection regulations.

Subpart VV-Virginia

* 24. Section 52.2423 is amended by

adding paragraph (t) to read as follows:

§52.2423 Approval status.

(t)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (t), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (t)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(t)-

(i) the term greenhouse gas shall mean

the air pollutant defined in 40 CFR

86.1818-12(a) as the aggregate group of

six greenhouse gases: Carbon dioxide,

nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (t)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in 9 VAC 5-80-1605 G of

the Commonwealth of Virginia's

Administrative Code) and a significant

net emissions increase (as defined in the

definitions for "net emissions increase," "significant" subparagraph a., and

"significant emissions increase" under

9 VAC 5-80-1605 C of the

Commonwealth of Virginia's

Administrative Code) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value

specified in the definition for

"significant" subparagraph b. under

9 VAC 5-80-1605 C of the

Commonwealth of Virginia's

Administrative Code.

Subpart YY-Wisconsin

* 25. Section 52.2572 is revised to read

as follows:

§ 52.2572 Approval status.

(a) With the exceptions set forth in

this subpart, the Administrator approves

Wisconsin's plans for the attainment

and maintenance of the National

Ambient Air Quality Standards under

section 110 of the Clean Air Act.

Furthermore, the Administrator finds

the plans satisfy all requirements of Part

D, Title I, of the Clean Air Act as

amended in 1977, except as noted

below. In addition, continued

satisfaction of the requirements of Part

D for the Ozone portion of the State

Implementation Plan depends on the

adoption and submittal of RACT

requirements on:

(1) Group III Control Techniques

Guideline sources within 1 year after

January 1st following the issuance of

each Group III control technique

guideline; and

(2) Major (actual emissions equal or

greater than 100 tons VOC per year)

non-control technique guideline sources

in accordance with the State's schedule

contained in the 1982 Ozone SIP

revision for Southeastern Wisconsin.

(b)(1) Insofar as the Prevention of

Significant Deterioration (PSD)

provisions found in this subpart apply

to stationary sources of greenhouse gas

(GHGs) emissions, the Administrator

approves that application only to the

extent that GHGs are "subject to

regulation", as provided in this

paragraph (b), and the Administrator

takes no action on that application to

the extent that GHGs are not "subject to

regulation."

(2) Beginning January 2, 2011, the

pollutant GHGs is subject to regulation

if:

(i) The stationary source is a new

major stationary source for a regulated

NSR pollutant that is not GHGs, and

also will emit or will have the potential

to emit 75,000 tpy CO 2e or more; or

(ii) The stationary source is an

existing major stationary source for a

82563
82564 Federal Register/Vol. 75, No. 250/Thursday, December 30, 2010/Rules and Regulations

regulated NSR pollutant that is not

GHGs, and also will have an emissions

increase of a regulated NSR pollutant,

and an emissions increase of 75,000 tpy

CO 2e or more; and,

(3) Beginning July 1, 2011, in addition

to the provisions in paragraph (b)(2) of

this section, the pollutant GHGs shall

also be subject to regulation:

(i) At a new stationary source that will

emit or have the potential to emit

100,000 tpy CO 2e; or

(ii) At an existing stationary source

that emits or has the potential to emit

100,000 tpy CO 2e, when such stationary

source undertakes a physical change or

change in the method of operation that

will result in an emissions increase of

75,000 tpy CO 2e or more.

(4) For purposes of this paragraph

(b)-

(i) The term greenhouse gas shall

mean the air pollutant defined in 40

CFR 86.1818-12(a) as the aggregate

group of six greenhouse gases: Carbon

dioxide, nitrous oxide, methane,

hydrofluorocarbons, perfluorocarbons,

and sulfur hexafluoride.

(ii) The term tpy CO 2 equivalent

emissions (CO 2e) shall represent an

amount of GHGs emitted, and shall be

computed as follows:

(A) Multiplying the mass amount of

emissions (tpy), for each of the six

greenhouse gases in the pollutant GHGs,

by the gas's associated global warming

potential published at Table A-1 to

subpart A of 40 CFR part 98-Global

Warming Potentials.

(B) Sum the resultant value from

paragraph (b)(4)(ii)(A) of this section for

each gas to compute a tpy CO 2e.

(iii) The term emissions increase shall

mean that both a significant emissions

increase (as calculated using the

procedures in NR 405.025 of

Wisconsin's Administrative Code) and a

significant net emissions increase (as

defined in NR 405.02, paragraphs (24),

(27)(a), and (27m) of Wisconsin's

Administrative Code) occur. For the

pollutant GHGs, an emissions increase

shall be based on tpy CO 2e, and shall be

calculated assuming the pollutant GHGs

is a regulated NSR pollutant, and

"significant" is defined as 75,000 tpy

CO 2e instead of applying the value in

NR 405.02(27)(c) of Wisconsin's

Administrative Code.

[FR Doe. 2010-32766 Filed 12-29-10; 8:45 am]

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