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6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2009-0517; FRL - _________]

RIN 2060-AP86

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 [number] State Implementation Plan (SIP) PSD

programs that apply to GHG-emitting sources. Specifically, EPA 

is withdrawing its previous approval of those programs to the 

extent they apply PSD to GHG-emitting 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: [Note: This list is tentative]: Alabama, California, 

Colorado, Georgia, Indiana, Iowa, Louisiana, Maine, Maryland,
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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 [INSERT DATE OF PUBLICATION

IN THE FEDERAL REGISTER].

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 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 www.regulations.gov or in hard copy at the EPA 

Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution 

Avenue, Northwest, Washington, D.C. 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: Ms. Lynn Hutchinson, Air 

Quality Policy Division, Office of Air Quality Planning and 

Standards (C504-01), Environmental Protection Agency, Research 
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Triangle Park, NC 27711; telephone number: (919) 541-5795; fax 

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

hutchinson.lynn@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, 

telephone number) Permitting authority

I Dave Conroy, Chief, Air 

Programs Branch,

EPA Region 1, 5 Post Office 

Square, Suite 100, Boston, MA 

02109-3912, (617) 918-1661.

Connecticut, 

Massachusetts, Maine, 

New Hampshire, Rhode 

Island, and Vermont.

II Raymond Werner, Chief, Air 

Programs Branch, EPA Region 2, 

290 Broadway, 25th Floor, New 

York, NY 10007-1866, (212) 

637-3706.

New Jersey, New York, 

Puerto Rico, and Virgin 

Islands.

III Kathleen Anderson, Chief, 

Permits and Technical 

Assessment Branch, EPA Region 

3, 1650 Arch Street, 

Philadelphia, PA 19103-2029, 

(215) 814-2173. 

District of Columbia, 

Delaware, Maryland, 

Pennsylvania, Virginia, 

and West Virginia.

IV Lynorae Benjamin Chief, 

Regulatory Development 

Section, Air, Pesticides and 

Toxics Management Divsion, EPA 

Region 4, Atlanta Federal 

Center, 61 Forsyth Street, SW, 

Atlanta, GA 30303-3104, (404) 

562-9040.

Alabama, Florida, 

Georgia, Kentucky, 

Mississippi, North 

Carolina, South 

Carolina, and 

Tennessee.

V J. Elmer Bortzer, Chief, Air 

Programs Branch (AR-18J), EPA 

Region 5, 77 West Jackson 

Boulevard, Chicago, IL 60604-

3507, (312) 886-1430.

Illinois, Indiana, 

Michigan, Minnesota, 

Ohio, and Wisconsin.
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VI Jeff Robinson, Chief, Air 

Permits Section, EPA Region 6, 

Fountain Place 12th Floor, 

Suite 1200, 1445 Ross Avenue, 

Dallas, TX 75202-2733, (214) 

665-6435.

Arkansas, Louisiana, 

New Mexico, Oklahoma, 

and Texas.

VII Mark Smith, Chief, Air 

Permitting and Compliance 

Branch, EPA Region 7, 901 

North 5th Street, Kansas City, 

KS 66101, (913) 551-7876.

Iowa, Kansas, Missouri, 

and Nebraska.

VIII Carl Daly, Unit Leader, Air 

Permitting, Monitoring & 

Modeling Unit, EPA Region 8, 

1595 Wynkoop Street, Denver, 

CO 80202-1129, (303) 312-

6416.

Colorado, Montana, 

North Dakota, South 

Dakota, Utah, and 

Wyoming.

IX Gerardo Rios, Chief, Permits 

Office, EPA Region 9, 75 

Hawthorne Street, San 

Francisco, CA 94105, (415) 

972-3974.

Arizona; California; 

Hawaii and the Pacific 

Islands; Indian Country 

within Region 9 and 

Navajo Nation; and 

Nevada.

X Nancy Helm, Manager, Federal 

and Delegated Air Programs 

Unit, EPA Region 10, 1200 

Sixth Avenue, Suite 900, 

Seattle, WA 98101, (206) 553-

6908.

Alaska, Idaho, Oregon, 

and Washington.

I. General Information

A. Does this action apply to me?

Entities potentially affected by this rule include states, 

local permitting authorities, and tribal authorities. 

Entities potentially affected by this rule also include 

sources in all industry groups, which have a direct obligation 

under the Clean Air Act (CAA) to obtain a PSD permit for GHGs 

for projects that meet the applicability thresholds set forth in 

the Tailoring Rule. The majority of entities potentially 
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affected by this action are expected to be in the following 

groups:

Industry Group NAICSa

Agriculture, fishing, 

and hunting............................ 11

Mining............................................. 21

Utilities (electric, 

natural gas, other 

systems)..........................................

.............. 2211, 2212, 2213

Manufacturing (food, 

beverages, tobacco, 

textiles, 

leather).................................. 311, 312, 313, 314, 315, 316 

Wood product, paper 

manufacturing...........................

.............. 321, 322 

Petroleum and coal 

products 

manufacturing......................... 32411, 32412, 32419

Chemical 

manufacturing........................... 3251, 3252, 3253,3254, 3255, 

3256,3259

Rubber product 

manufacturing......................... 3261, 3262

Miscellaneous chemical 

products..........................................

.............. 32552, 32592, 32591, 325182, 

32551

Nonmetallic mineral 

product 

manufacturing......................... 3271, 3272, 3273, 3274, 3279
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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

Miscellaneous 

manufacturing......................... 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

Residential/private 

households.................................. 8141 
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Non-Residential 

(Commercial)............................ Not available. Codes only exist 

for private households, 

construction, and leasing/sales 

industries. 

a North 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
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J. Executive Order 12898 – Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Populations

K. Congressional Review Act

L. Judicial Review

VIII.Statutory Language

II. Overview of the Final Rule

This action finalizes EPA’s proposal to limit the approval 

of state implementation plans (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.1

 1 Only the PSD provisions are relevant for this action.

 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, which are calculated on a carbon dioxide 
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equivalent (CO2e) 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 alleviate the 

overwhelming administrative burdens and costs that regulating 

GHG emissions at the statutory threshold would place on PSD 

permitting authorities and sources. 

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 

–– 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 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 for ##

states.
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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 GHG-emitting 

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-longerapproved 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 
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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 Jan. 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.
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The states for whose SIPs EPA is narrowing approval are: 

[Note: This list is tentative]: 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.

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 we issued in a 
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single final action,2 the "Johnson Memo Reconsideration (also 

called the “Timing Decision”),"3 the "Light-Duty Vehicle Rule

(LDVR),"4 and the "Tailoring Rule."5

 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

 2 "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).

. 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 

3 "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.

4 "Light-Duty Vehicle Greenhouse Gas Emission Standards and 

Corporate Average Fuel Economy Standards; Final Rule." 75 FR 

25,324 (May 7, 2010).

5 "Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule; Final Rule." 75 FR 31,514 (June 3, 2010).
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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 preexisting 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 

requirements. 75 FR 17,004. The Tailoring Rule established a 

series of steps by which PSD and Title V permit requirements for 

greenhouse gases could be 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 

GHG-emitting sources, and EPA proposed to issue a “SIP call” 

under CAA section 110(k)(5) for those states that would require 
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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 CO2e

basis, for at least a specified period.6

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 

 EPA recognized that

even so, many SIPs with approved PSD programs would require PSD 

permitting of GHG-emitting 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. 

 6 The criteria established in the final Tailoring Rule also 

affected when GHG emissions would be subject to permitting under 

title V of the Clean Air Act. However, since the current Rule 

deals only with state SIPs, which address PSD requirements, this 

section will not focus on those provisions affecting title V.
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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 limit 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 

limitations 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 limitations 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. 
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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. 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 CO2e basis) are treated as subject to 
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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.7

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 limit its approval of the state’s SIP. Thus, in the 

final Tailoring Rule, EPA delayed final action on its proposal 

to limit 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 timeline 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 

 

 7 Unlike the proposed Tailoring Rule, the final Tailoring Rule 

did not set significance levels for GHG emissions.
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60-day letters) -- that would help EPA determine whether it 

needed to limit 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 the 30-day letters), and additional 

information EPA has received, EPA is finalizing (at about the 

same time as this action) a SIP call for 12 states and 4 

districts within states.

The remaining 30 states and 6 districts within states have 

approved SIPs that apply their PSD program to GHG-emitting 

sources.In those states, absent further action, sources emitting 
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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 2 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 York –– for 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. Twenty-three states and 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. To date, (##) 

states have completed their SIP revisions and submitted them to 

EPA, and EPA expects to take final action on them promptly. [If 

we have already taken final action to approve the Tailoring Rule 

SIPs of any states, note that here.] All of 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. [If we have 

already taken final action to approve the Tailoring Rule SIP for 
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any state, then say here that this state is not 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.

It should also be noted that 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
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EPA is taking final action to limit 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 no-longer-approved provisions. We 

note that once SIP revisions incorporating the Tailoring Rule 

thresholds are approved after the issuance of this rule, they 
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will supercede 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
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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 limit 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 limit EPA’s approval of SIPs for 

states that have PSD SIP programs that cover GHG emissions, and 
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that have already incorporated the Tailoring Rule thresholds via 

interpretation, SIP revision, or any other mechanism.

The states for whom EPA is narrowing its approval of the 

SIP PSD program in this action include: [Note: This list is 

tentative]: 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 
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of PSD applicability that is broader than what the state 

assurances covered is the part that exceeds EPA requirements for 

PSD applicability. The following discusses this 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.8

 8

 “Prevention of Significant Deterioration (PSD) and 

Nonattainment New Source Review (NNSR): Baseline Emissions 

Determination, Actual-to-Future-Actuals Methodology, Plantwide 

Applicability Limitations, Clean Units, Pollution Control 

Projects,” Final Rule, 67 FR 10816 (December 2, 2002). 

 These 

pre-Reform 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 
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otherwise subject to regulation under [the CAA].” 40 CFR 

51.166(b)(49)(iv). This quoted provision is similar to the preReform 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 preReform 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 
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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 

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 GHGemitting sources at the 100/250 tpy levels and to modified GHGemitting sources at the any-mass-increase levels. None of these 

SIPs permits the interpretation of the PSD applicability more 

narrowly, to apply to only GHG-emitting sources at or above the 
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Tailoring Rule thresholds. In contrast, as noted elsewhere, 

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 CO2e thresholds set out 

in that rule.9

 9 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 CO2e. 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 

CO2e, and existing sources that emit or have the potential to 

emit 100,000 tpy CO2e and that undertake a modification that 

increases net emissions of GHGs by at least 75,000 tpy CO2e.

 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 broadly –- indeed, much more 
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broadly, to far more sources and to much smaller sources -- than 

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 
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which resources will be acquired at 1-, 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 
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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 
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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. 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 
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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, it could have 

been recognized that at some point in time, a pollutant could be 

newly regulated and as a result expand PSD applicability in a 
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manner that would require a sizeable expansion of resources. It 

bears reiterating that EPA has discretion to interpret the CAA’s

SIP requirements, 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.
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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 
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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 Bridesburg v. 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 
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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 pre-section 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 
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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 non-technical 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 
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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).

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 
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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.
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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 fashion –– narrowing 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 GHG-emitting 

sources at the Tailoring Rule thresholds. In contrast, no state 

has informed EPA that it prefers to maintain its PSD 
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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. In addition, CAA section 110(k)(6) give EPA the 

authority, when making corrections, to do so “as appropriate.” 

This language provides EPA with discretion when addressing an 

error in a SIP. The current problem resulting from EPA’s 

erroneous approvals of the SIPs in question involves the 

regulation of GHG emissions, and the current rule addressing 

this problem. The scope of this action does not foreclose 

further action to address EPA’s error in the future.

In accordance with CAA section 110(k)(6), EPA has conducted 

this limitation of approval through notice-and-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, EPA is using its authority to 

reconsider its prior approval actions in order to narrow its 
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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 
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rectify errors even though the applicable statute and 

regulations do not provide expressly for such reconsideration); 

Trujillo v. General Electric Co., 621 F.2d 1084, 1086 (10th Cir. 

1980) (“Administrative agencies have an inherent authority to 

reconsider their own decisions, since the power to decide in the 

first instance carries with it the power to reconsider”). 

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 
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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 
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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 limit 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 limiting 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 limit 

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: 
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• 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)

• 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)

• 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)
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• 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 limitation 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)

• 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 
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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) 

• 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 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)
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• The EPA has overstated its authority under CAA section

301(a). The District of Columbia Circuit (D.C. 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)

• 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 
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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 limit 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 
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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 
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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 (D.C. Cir. 1990) (finding “whenever” in CAA section 
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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 D.C. Circuit recently affirmed EPA’s 

inherent authority to reconsider its own actions in New Jersey 

v. EPA, 517 F.3d 574 (D.C. 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 
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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 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 
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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 federal-state 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 
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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 100(k)(6) in 

1990 in fact indicated Congress’s intent to reinforce EPA’s 
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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 
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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 anti-backsliding 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.
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(5140, 5181, 5278). One commenter was also concerned more 

generally that anti-backsliding 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 limiting 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(l), 110(n)(1), or 193. 

However, the current rule does not violate any of these 

provisions.

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.” In other words, this provision prevents 

EPA from approving some changes to a SIP for a given pollutant 

if the SIP applies to an area that is in nonattainment for that 

pollutant. GHGs are not a NAAQS pollutant or a pollutant with 
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other set attainment criteria. No areas of any states have been 

deemed to be nonattainment areas for GHGs. Thus, the current 

rule does not violate CAA section 193.

CAA section 110(l) 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(l) or any 

other CAA provision. 
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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, 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, 
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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 belowTailoring Rule levels will have relief from GHG permitting 

requirements as early as possible.

D. Comments on Preferred Alternative Courses of Action
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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 SIPapproved states. (4691)

• An industry commenter (4298) supports EPA’s efforts to 

limit 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 
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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. 

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 
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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 limiting 

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 
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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. 

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 
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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 CO2e 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 burdenreduction 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 
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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-for-profit 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 
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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 

limits 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).

This rule is also not subject to the requirements of 

section 203 of UMRA because it contains no regulatory 
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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.
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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 
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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 
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requirements for sources in the energy supply, distribution, or 

use sectors.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 ("NTTAA"), Public Law No. 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 
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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 limiting 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 
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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 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 [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].

L. Judicial Review
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Section 307(b)(1) of the CAA indicates which Federal Courts 

of Appeal have venue for petitions of review of 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 limiting EPA’s previous approvals of 24 SIPs to 

correct a flaw in those SIPs is “nationally applicable” within 

the meaning of section 307(b)(1). At the core of this 

rulemaking is EPA’s approval of the affected SIPs’ PSD 

applicability provisions in the face of a mismatch between the 

breadth of those provisions and the scope of the resource 

assurances the states provided. EPA is now recognizing and 

addressing this flaw in numerous SIPs across the country through 

the CAA section 110(k)(6) error correction provisions. 

The Administrator is determining that the error corrections 

are of nationwide scope and effect for the purposes of section

307(b)(1). This is particularly appropriate because, in the 

report on the 1977 Amendments that revised section 307(b)(1) of 
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the CAA, Congress noted that the Administrator’s determination 

that an action is of “nationwide scope or effect” would be 

appropriate for any action that has a scope or effect beyond a 

single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, 

reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and 

effect of this rulemaking extends to numerous judicial circuits 

since the error corrections apply to SIPs across the country. 

In these circumstances, section 307(b)(1) and its legislative 

history calls for the Administrator to find the rule to be of 

“nationwide scope or effect” and for venue to be in the D.C. 

Circuit.

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 [INSERT DATE 60 DAYS FROM DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. 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 
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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)).
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Page 81 of 142 - Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning Greenhouse Gas 

Emitting-Sources in State Implementation Plans; Final Rule

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, 

Intergovernmental relations, Methane, Nitrous oxide, 

Perfluorocarbons, Reporting and recordkeeping requirements, 

Sulfur hexafluoride.

___________________________________________ 

Dated: 

___________________________________________ 

Lisa P. Jackson, 

Administrator.
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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]

1. The authority citation for part 52 continues to read as 

follows: 

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

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 (GHGs) emissions, the 
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Administrator approves that application only to the extent that 

GHGs are “subject to regulation", as provided in this subsection 

(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.
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(4) For purposes of this subsection (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 CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 
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the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section. 

3. Section 52.223 is amended by adding paragraph (f) to 

read as follows:

§ 52.223 Approval status.

* * * * *

(f)(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 subsection 

(f), 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 CO2e 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 CO2e or more; and, 
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(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (f)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (f) –

(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 CO2 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 (f)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 
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(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section. 

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 subsection 
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(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (b) –
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(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 CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.
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5. Section 52.572 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 subsection 

(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 CO2e or more; 

or 

(ii) The stationary source is an existing major stationary 

source for a regulated NSR pollutant that is not GHGs, and also 
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will have an emissions increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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.
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(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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 subsection 

(k), and the Administrator takes no action on that application 

to the extent that GHGs are not “subject to regulation.”
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(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (k)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 
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greenhouse gases: Carbon dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

(ii) the term tpy CO2 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 (k)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

7. Section 52.822 is amended by adding paragraph (b) to 

read as follows:
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§ 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 subsection 

(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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
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(ii) At an existing stationary source that emits or has the 

potential to emit 100,000 tpy CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 
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of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

8. Section 52.986 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 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 subsection 

(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 CO2e or more; 

or 
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(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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (c)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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 
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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 CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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 (GHGs) emissions, the 
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Administrator approves that application only to the extent that 

GHGs are “subject to regulation", as provided in this subsection 

(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.
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(4) For purposes of this subsection (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 CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 
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the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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 subsection 

(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 CO2e 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 CO2e or more; and, 
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(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (h)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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 CO2e. 
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(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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 subsection 
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(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (b) –
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(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 CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.
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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 subsection 

(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (n)(2) of this subsection, the pollutant GHGs shall 

also be subject to regulation: 
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(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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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 (n)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e.

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 
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section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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 subsection 

(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 
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emit or will have the potential to emit 75,000 tpy CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (c)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 equivalent emissions (CO2e) shall 

represent an amount of GHGs emitted, and shall be computed as 

follows:
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(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 CO2e.

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

14. Section 52.1622 is revised to read as follows:

§ 52.1622 Approval status.

(a) With the exceptions set forth in this subpart, the 

Administrator approves New Mexico’s plan for the attainment and 

maintenance of the national standards under section 110 of the

Clean Air Act. Further, the Administrator finds that the plan
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satisfies all requirements of Part D 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 subsection 

(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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
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(ii) At an existing stationary source that emits or has the 

potential to emit 100,000 tpy CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e.

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 
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of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

15. Section 52.1772 is amended by adding paragraph (c) to 

read as follows:

§ 52.1772 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 subsection 

(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 CO2e or more; 

or 
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(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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (c)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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 
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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 CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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 
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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 subsection 

(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 CO2e 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 CO2e or more; and, 
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(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 
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(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

17. Section 52.1922 is revised to read as follows:

§ 52.1922 Approval status.

(a) With the exceptions set forth in this subpart, the 

Administrator approves Oklahoma’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 subsection 
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(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (b) –
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(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 CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.
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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 subsection 

(b), and the Administrator takes no action on that application 

to the extent that GHGs are not “subject to regulation.”
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(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 
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greenhouse gases: Carbon dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

(ii) the term tpy CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

19. Section 52.2122 is amended by adding paragraph (c) to 

read as follows:
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§ 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 subsection 

(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (c)(2) of this subsection, 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
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(ii) At an existing stationary source that emits or has the 

potential to emit 100,000 tpy CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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 (c)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 
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of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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 subsection 

(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:
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(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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.
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(ii) the term tpy CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

21. Section 52.2222 is amended by adding paragraph (d) to 

read as follows:

§ 52.2222 Approval status.

* * * * *
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(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 subsection 

(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (d)(2) of this subsection, 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 CO2e, when such stationary source 
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undertakes a physical change or change in the method of 

operation that will result in an emissions increase of 75,000 

tpy CO2e or more.

(4) For purposes of this subsection (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 CO2 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 (d)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) occur. For the pollutant GHGs, an emissions 

increase shall be based on tpy CO2e, and shall be calculated 
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assuming the pollutant GHGs is a regulated NSR pollutant, and 

“significant” is defined as 75,000 tpy CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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 subsection 

(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 
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emit or will have the potential to emit 75,000 tpy CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 equivalent emissions (CO2e) shall 

represent an amount of GHGs emitted, and shall be computed as 

follows:
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(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 CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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
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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 subsection 

(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 CO2e or more; 

or 

(ii) The stationary source is an existing major stationary 

source for a regulated NSR pollutant that is not GHGs, and also 
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will have an emissions increase of a regulated NSR pollutant, 

and an emissions increase of 75,000 tpy CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 CO2 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.
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(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

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 subsection 

(t), and the Administrator takes no action on that application 

to the extent that GHGs are not “subject to regulation.”
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(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (t)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 
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greenhouse gases: Carbon dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

(ii) the term tpy CO2 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 (t)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.

25. Section 52.2572 is revised to read as follows:

§ 52.2572 Approval status.
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(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 subsection 

(b), and the Administrator takes no action on that application 

to the extent that GHGs are not “subject to regulation.”
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(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 CO2e 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 CO2e or more; and, 

(3) Beginning July 1, 2011, in addition to the provisions 

in paragraph (b)(2) of this subsection, 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 CO2e, 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 CO2e or more.

(4) For purposes of this subsection (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 
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greenhouse gases: Carbon dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

(ii) the term tpy CO2 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 (b)(4)(ii)(A) of 

this section for each gas to compute a tpy CO2e. 

(iii) the term emissions increase shall mean that both a 

significant emissions increase (as calculated using the 

procedures in [cite the analogue to 51.166(a)(7)(iv)] of this 

section) and a significant net emissions increase (as defined in 

paragraphs [cite the state analogue to 51.166(b)(3) and (b)(23)] 

of this section) 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 CO2e instead of applying 

the value in paragraph [cite the analogue to 51.166(b)(23)(ii)]

of this section.