United States Environmental Protection Agency, Region 9

Air Division

Technical Support Document

EPA's Notice of Proposed Rulemaking

Revision to the California State Implementation Plan for:

Feather River Air Quality Management District

Rule 10.10 – Prevention of Significant Deterioration

Great Basin Unified Air Pollution Control District

Rule 221 – Prevention of Significant Deterioration (PSD) Permit Requirements for New 

Major Facilities or Major Modifications in Attainment or Unclassifiable Areas

Butte County Air Quality Management District

Rule 1107 – Prevention of Significant Deterioration (PSD) Permits

Santa Barbara County Air Pollution Control District

Rule 810 – Federal Prevention of Significant Deterioration (PSD)

San Luis Obispo County Air Pollution Control District

Rule 220 – Federal Prevention of Significant Deterioration 

July 2015
Table of Contents

Section Page

1. Introduction 1

2. PSD Program SIP Revision Submittal 1

3. What are the General Requirements for a SIP-Approved PSD Program? 3

4. Rule Summary 4

5. Rule Evaluation 7

6. Program Transfer and Implementation Issues 18

7. Sections 110(a), 110(l), and 193 of the Act 19

8. Recommendations 19

9. Attachments 19
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1. Introduction

This technical support document (TSD) addresses certain preconstruction permitting requirements, also called 

“New Source Review” or “NSR”, in title I of the Clean Air Act (CAA or the Act) and the implementing regulations at 

title 40 of the Code of Federal Regulations (CFR) part 51, subpart I. Specifically, this TSD will address those NSR 

requirements found in part C of title I of the Act, and the implementing regulations at 40 CFR 51.166, governing the 

requirement for State Implementation Plans (SIPs) to establish preconstruction permitting programs for the 

prevention of significant deterioration of air quality (PSD) in areas designated as “attainment” or “unclassifiable” 

for the national ambient air quality standards (NAAQS). The PSD program requirements under part C apply to “major 

stationary sources” and “major modifications”, as those terms are defined in 40 CFR part 51, subpart I, at sources 

that would be located within areas designated as “attainment” or “unclassifiable”. The PSD requirements apply to 

all “regulated NSR pollutants,” except those pollutants for which an area has been designated as “nonattainment.” 

This TSD will not address part D of title I of the Act, and the implementing regulations at 40 CFR 51.165, which 

contain the requirements for areas designated “nonattainment” for a NAAQS. The requirements under part D and 

its implementing regulations, commonly referred to as “nonattainment NSR,” apply to nonattainment pollutants at 

major stationary sources and major modifications at sources located in nonattainment areas. 

This TSD also does not address the CAA requirements governing the construction and modification of minor 

stationary sources and minor modifications at major sources, to assure that the NAAQS are achieved and/or 

maintained. These preconstruction program requirements are commonly referred to as “minor NSR” (40 CFR 

51.160-164).

2. PSD Program SIP Revision Submittal

Table 1 below identifies five PSD rule packages adopted by local air districts in California (the Districts) that were 

submitted by the California Air Resources Board (ARB) to Region 9 of the United States Environmental Protection 

Agency (EPA) as a revision to California’s SIP. The ARB is the California governor’s designee for submitting official 

revisions of the California SIP to the EPA. These Districts currently do not have a SIP-approved PSD program. EPA’s 

approval of the ARB’s SIP submittal packages into the California SIP would transfer authority and responsibility for 

implementation of the PSD permitting program from the EPA to these Districts for sources within their respective 

jurisdictions. 

Table 1 List of Rule Submittals Addressed in this Action

Agency Rule Date Adopted or 

Amended

Date Submitted 

by ARB

Feather River Air 

Quality Management 

District

Rule 10.10 – Prevention of Significant 

Deterioration

August 1, 2011 April 22, 2013

Great Basin Unified 

Air Pollution Control 

District

Rule 221 – Prevention of Significant 

Deterioration (PSD) Permit 

Requirements for New Major Facilities 

or Major Modifications in Attainment or 

Unclassifiable Areas

September 5, 2012 February 6, 2013
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Agency Rule Date Adopted or 

Amended

Date Submitted 

by ARB

Butte County Air 

Quality Management 

District

Rule 1107 – Prevention of Significant 

Deterioration (PSD) Permits

June 28, 2012 February 6, 2013

Santa Barbara County 

Air Pollution Control 

District

Rule 810 – Federal Prevention of 

Significant Deterioration (PSD)

June 20, 2013 February 10, 2014

San Luis Obispo 

County Air Pollution 

Control District

Rule 220 – Federal Prevention of 

Significant Deterioration 

January 22, 2014 May 13, 2014

In a letter dated December 18, 2014, the Feather River Air Quality Management District (Feather River or 

FRAQMD) provided certain clarifications and further discussion regarding Feather River Rule 10.10 – Prevention of 

Significant Deterioration – and how Feather River would implement its rule to ensure that its PSD program 

satisfies the requirements of 40 CFR 51.166 for SIP-approved PSD programs. We provide a detailed discussion of

the clarification and information Feather River provided in Sections 5.4-5.5, 5.7, 5.9, and 6 of this TSD. Feather 

River’s SIP submittal package was determined complete on June 26, 2013. 

In letters dated November 13, 2014 and April 15, 2015, the Great Basin Unified Air Pollution Control District 

(Great Basin or GBUAPCD) provided certain clarifications and further discussion regarding Great Basin Rule 221 –

Prevention of Significant Deterioration (PSD) Permit Requirements for New Major Facilities or Major Modifications 

in Attainment or Unclassifiable Areas – and how Great Basin would implement its rule to ensure that its PSD 

program satisfies the requirements of 40 CFR 51.166 for PSD programs. We provide a detailed discussion of the 

clarification and information Great Basin provided in Sections 5.4, 5.7, 5.9, and 6 below. Great Basin’s SIP 

submittal package was determined complete on April 9, 2013. 

In letters dated November 13, 2014 and April 8, 2015, the Butte County Air Quality Management District (Butte or 

BCAQMD) provided certain clarifications and further discussion regarding Butte Rule 1107 – Prevention of 

Significant Deterioration (PSD) Permits – and how Butte would implement its rule to ensure that its PSD program 

satisfies the requirements of 40 CFR 51.166 for PSD programs. We provide a detailed discussion of the clarification 

and information Feather River provided in Sections 5.4, 5.7, 5.9, and 6 below. Butte’s SIP submittal package was 

determined complete on April 9, 2013. 

In a letter dated November 25, 2014, the Santa Barbara County Air Pollution Control District (Santa Barbara or 

SBAPCD) provided certain clarifications and further discussion regarding Santa Barbara Rule 810 – Federal 

Prevention of Significant Deterioration (PSD) – and how Santa Barbara would implement its rule to ensure that its 

PSD program satisfies the requirements of 40 CFR 51.166 for PSD programs. We provide a detailed discussion on 

the clarification and information Santa Barbara provided in Sections 5.4, 5.9, and 6 below. Santa Barbara’s SIP 

submittal package was determined complete on May 5, 2014. 

In a letter dated December 16, 2014, the San Luis Obispo County Air Pollution Control District (San Luis Obispo or 

SLOAPCD) provided certain clarifications and further discussion regarding San Luis Obispo Rule 220 – Federal 

Prevention of Significant Deterioration – and how San Luis Obispo would implement its rule to ensure that its PSD 

program satisfies the requirements of 40 CFR 51.166 for PSD programs. We provide a detailed discussion of the
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clarification and information San Luis Obispo provided in Sections 5.9 and 6 below. San Luis Obispo’s SIP submittal 

package was determined complete on June 30, 2014.

In a letter dated June 1, 2015, ARB requested to withdraw its request for approval into the SIP for the portions of 

the five District PSD rules that incorporate 40 CFR 52.21(b)(49)(v) by reference. See the discussion in Section 5.9

below.

3. What are the General Requirements for a SIP-Approved PSD Program?

CAA sections 110(a)(2)(C) and 165 establish the general statutory requirements for the PSD program. As noted 

above, 40 CFR 51.166 sets forth EPA’s regulatory requirements for SIP-approved PSD programs. The PSD program 

applies to any regulated NSR pollutant (as defined in 40 CFR 51.166), except for pollutants designated 

nonattainment for a NAAQS. The CAA defines “nonattainment areas” as air quality planning areas that exceed the 

national primary or secondary NAAQS for a given criteria pollutant (or that contribute to ambient air quality in a 

nearby area that does not meet the NAAQS). In some instances the emission increases of a particular pollutant 

may be subject to both the PSD program and the NA-NSR program. For example, nitrogen oxides (NOx) from a 

major stationary source in an area designated as attainment for the nitrogen dioxide (NO2) NAAQS and 

nonattainment for the ozone NAAQS could be subject to both permitting programs because, in such cases, NOx

would be a PSD pollutant as well as a precursor to ozone, a nonattainment pollutant.

The applicability of PSD to a particular source must be determined in advance of construction or modification and 

is pollutant-specific. The primary criterion is whether the proposed project is sufficiently large (in terms of its 

emissions) to be a major stationary source or major modification, terms which are defined as described below. 

Section 169 of the CAA specifies the emissions threshold, depending on source category, that is used to determine 

whether a source is a “major emitting facility” and subject to PSD. For PSD purposes, a “major stationary source” 

is any source belonging to a specified list of 28 source categories1 that emits or has the potential to emit (PTE) 

100 tons per year (tpy) or more of any air pollutant subject to regulation under the CAA, or belonging to any other 

source category that emits or has the PTE for such pollutants in amounts equal to or greater than 250 tpy. A new 

source with a PTE at or above the applicable “major stationary source threshold” is also subject to PSD for any 

other regulated NSR pollutant emitted in “significant” amounts. These significance levels, which EPA has 

promulgated for criteria pollutants and certain other pollutants, represent a threshold for a de minimis 

contribution to air quality problems. When EPA has not set a significance level for a pollutant, PSD applies to an 

increase of the regulated pollutant in any amount (that is, in effect, the significance level is treated as zero).

PSD also applies to existing major stationary sources that undertake a “major modification,” which occurs when: 

(1) there is a physical change, or change in the method of operation, at a “major stationary source;” (2) the 

change results in a “significant” emissions increase of a pollutant subject to PSD regulation (at or above the 

significance level that EPA has set for the pollutant); and (3) there is a “significant net emissions increase” of a 

pollutant subject to PSD regulation that is at or above the significance level (as defined in 40 CFR 51.166(b)(23)). 

The PSD program also applies to certain greenhouse gas (GHG) emissions when they are “subject to regulation,” 

as defined in 40 CFR 51.166(b)(48). See our additional discussion below in Section 5.9 of the applicability of the 

PSD program to GHG emissions in light of a June 23, 2014 U.S. Supreme Court decision regarding the same 

subject. 

 

1 See 40 CFR 51.166(b)(1)(i) for the 28-source category list.
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Sources subject to PSD review must demonstrate compliance with a number of approval criteria in order to 

qualify for a PSD pre-construction permit. The most significant of these requirements are the application of the 

best available control technology (BACT) to the source and the requirement that the source demonstrate that it 

will not cause or contribute to a violation of the NAAQS or applicable PSD increments. 

4. Rule Summary

Below we provide a summary of each rule under review in this action.

4.1 Feather River Rule 10.10

Feather River Rule 10.10 applies to major sources and major modifications emitting pollutants designated as 

attainment or unclassifiable in the FRAQMD, as well as other regulated NSR pollutants. Consistent with the 

requirements for a PSD program, Feather River Rule 10.10 does not apply to nonattainment pollutants. Currently, 

the District is either attainment or unclassifiable for the PM10, PM2.5, NO2, SO2, CO, and lead NAAQS and

nonattainment for the ozone (partial area) NAAQS.

Feather River Rule 10.10 essentially incorporates by reference the federal PSD program as codified in 40 CFR

52.21, which is the Federal Implementation Plan (FIP) used by EPA to implement the required PSD program in 

areas that do not have a SIP-approved PSD program. Feather River Rule 10.10 is composed of seven sections: 

A – Purpose

B – Applicability

C – Incorporation by Reference

D – Exemption, Greenhouse Gas Air Quality Analysis

E – Definitions

F – Requirements

G – Administrative Requirements

Section A indicates that the intent of this rule is to adopt a PSD program by incorporating the federal PSD program 

by reference. Section B contains an applicability provision that establishes that the rule is applicable to any source 

(and source owner and operator) subject to any requirement in 40 CFR 52.21 as incorporated into Feather River

Rule 10.10. With some minor revisions and exceptions, Section C incorporates by reference the provisions of 40 

CFR 52.21 as in effect on August 1, 2011. Section D contains an exemption from the requirements of paragraphs 

(k) and (m) of 40 CFR 52.21 for greenhouse gas emissions. Section E revises terms and definitions incorporated 

from 40 CFR 52.21 to help Feather River administer the program. Section F lists certain key requirements 

necessary to administer the program. Last, Section G includes public notice and comment procedures for issuing 

PSD permits.

4.2 Great Basin Rule 221

Great Basin Rule 221 applies to major sources and major modifications emitting pollutants designated as 

attainment or unclassifiable in the GBUAPCD, as well as other regulated NSR pollutants. Consistent with the 

requirements for a PSD program, Great Basin Rule 221 does not apply to nonattainment pollutants. Currently, the 

District is either attainment or unclassifiable for the PM2.5, NO2, SO2, CO, ozone and lead NAAQS and 

nonattainment for the PM10NAAQS. 
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Great Basin Rule 221 essentially incorporates by reference the federal PSD program as codified in 40 CFR 52.21. 

Great Basin Rule 221 is composed of four sections: 

A – Purpose

B – Applicability

C – Incorporation by Reference

D – Requirements

Section A indicates that the intent of this rule is to adopt a PSD program by incorporating the federal PSD program 

by reference. Section B contains an applicability provision that establishes that the rule is applicable to any source 

(and source owner and operator) subject to any requirement in 40 CFR 52.21 as incorporated into Great Basin

Rule 221. With some minor revisions and exceptions, Section C incorporates by reference the provisions of 40 CFR 

52.21 as in effect on July 1, 2012 and revises terms and definitions incorporated from 40 CFR 52.21 to help Great 

Basin administer the program. Section D lists certain requirements necessary to administer the program and 

includes public notice and comment procedures for issuing PSD permits.

4.3 Butte Rule 1107

Butte Rule 1107 applies to major sources and major modifications emitting pollutants designated as attainment or 

unclassifiable in the BCAQMD, as well as other regulated NSR pollutants. Consistent with the requirements for a 

PSD program, Butte Rule 1107 does not apply to nonattainment pollutants. Currently, the District is either 

attainment or unclassifiable for the PM10, NO2, SO2, CO, and lead NAAQS and nonattainment for the ozone and 

PM2.5NAAQS. 

Butte Rule 1107 essentially incorporates by reference the federal PSD program as codified in 40 CFR 52.21. Butte 

Rule 1107 is composed of five sections: 

1 – Purpose

2 – Applicability

3 – Incorporation by Reference

4 – Requirements

5 – Public Participation

Section 1 indicates that the intent of this rule is to adopt a PSD program by incorporating the federal PSD program 

by reference. Section 1 contains an applicability provision that establishes that the rule is applicable to any source 

(and source owner and operator) subject to any requirement in 40 CFR 52.21 as incorporated into Butte Rule 

1107. With some minor revisions and exceptions, Section 3 incorporates by reference the provisions of 40 CFR 

52.21 as in effect on June 28, 2012 and revises terms and definitions incorporated from 40 CFR 52.21 to help 

Butte administer the program. Section 4 lists certain requirements necessary to administer the program. Last, 

Section 5 includes public notice and comment procedures for issuing PSD permits.

4.4 Santa Barbara Rule 810

Santa Barbara Rule 810 applies to major sources and major modifications emitting pollutants designated as 

attainment or unclassifiable in the SBAPCD, as well as other regulated NSR pollutants. Consistent with the 
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requirements for a PSD program, Santa Barbara Rule 810 does not apply to nonattainment pollutants. Currently, 

the District is either attainment or unclassifiable for all NAAQS.

Santa Barbara Rule 810 essentially incorporates by reference the federal PSD program as codified in 40 CFR 52.21. 

Santa Barbara Rule 810 is composed of five sections: 

A – Purpose

B – Applicability

C – Incorporation by Reference

D – Requirements

E – Public Participation

Section A indicates that the intent of this rule is to adopt a PSD program by incorporating the federal PSD program 

by reference. Section B contains an applicability provision that establishes that the rule is applicable to any source 

(and source owner and operator) subject to any requirement in 40 CFR 52.21 as incorporated into Santa Barbara 

Rule 810. With some minor revisions and exceptions, Section C incorporates by reference the provisions of 40 CFR 

Part 52.21 as in effect on June 20, 2013 and revises terms and definitions incorporated from 40 CFR 52.21 to help 

Santa Barbara administer the program. Section D lists certain requirements necessary to administer the program. 

Section E includes public notice and comment procedures for issuing PSD permits.

4.5 San Luis Obispo Rule 220

San Luis Obispo Rule 220 applies to major sources and major modifications emitting pollutants designated as 

attainment or unclassifiable in the SLOAPCD, as well as other regulated NSR pollutants. Consistent with the 

requirements for a PSD program, San Luis Obispo Rule 220 does not apply to nonattainment pollutants. Currently, 

the District is either attainment or unclassifiable for PM2.5, PM10, NO2, SO2, CO, and lead NAAQS and 

nonattainment for the ozone (partial area) NAAQS.

San Luis Obispo Rule 220 essentially incorporates by reference the federal PSD program as codified in 40 CFR

52.21. San Luis Obispo Rule 220 is composed of five sections: 

A – Purpose

B – Applicability

C – Incorporation by Reference

D – Requirements

E – Public Participation

Section A indicates that the intent of this rule is to adopt a PSD program by incorporating the federal PSD program 

by reference. Section B contains an applicability provision that establishes that the rule is applicable to any source 

(and source owner and operator) subject to any requirement in 40 CFR 52.21 as incorporated into San Luis Obispo 

Rule 220. With some minor revisions and exceptions, Section C incorporates by reference the provisions of 40 CFR 

Part 52.21 as in effect on January 22, 2014 and revises terms and definitions incorporated from 40 CFR 52.21 to 

help San Luis Obispo administer the program. Section D lists certain requirements necessary to administer the 

program. And, Section E includes public notice and comment procedures for issuing PSD permits.
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5. Rule Evaluation

We reviewed each District PSD rule described above to ensure that it meets the requirements of title I of the Act, 

specifically part C (sections 160 through 169B), and current implementing regulations at 40 CFR 51.166. EPA has 

condensed a discussion of the approval criteria contained in these regulations in this TSD, which describes the 

basis for our proposed action on the rule submittals.

The Act requires all states to submit a PSD program consistent with the requirements of 40 CFR 51.166. EPA’s 

evaluation of the submitted PSD rules and how they meet the requirements for a PSD program is included in the 

attached document, Evaluation of 40 CFR 51.166 and Feather River, Great Basin, Butte, Santa Barbara and SLO 

District PSD Rules (Evaluation) (see Attachment 1). In general, the rules under review meet the requirements of 40 

CFR 51.166 by incorporating by reference the specific provisions of 40 CFR 52.21 that are necessary to implement 

a state PSD program. As mentioned above, 40 CFR 52.21 contains the FIP used by EPA to implement the required 

PSD program in areas that do not have a SIP-approved PSD program. EPA considers the provisions of 40 CFR 52.21 

to generally be consistent with the requirements of 40 CFR 51.166. Therefore, only those provisions of these rules 

that warrant additional review are discussed below.

5. 1 Exclusions

Each District rule under consideration in this action excludes the following paragraphs from its incorporation by 

reference of 40 CFR 52.21: 

• (a)(1) – Plan disapproval

• (b)(55-58) and (cc) – equipment replacement program (ERP) provisions which were vacated by the United 

States Circuit Court of Appeals for the District of Columbia on March 17, 2006

• (g) – Redesignation

• (p)(6-8) – Class I variances by the Governor

• (q) – Public participation

• (s) – Environmental impact statements

• (t) – Disputed permits or redesignations

• (u) – Delegation of authority

• (v) – Innovative control technology

• (w) – Permit rescission

• (f), (x), (y), and (z) – “[Reserved]” 

EPA has reviewed these exclusions and, except for paragraph (q), concurs that these excluded paragraphs are not 

necessary to implement a state PSD program. A SIP-approved PSD program is required to include certain public 

participation requirements found in 40 CFR 51.166(q). Instead of incorporating the public participation 

requirements found in 40 CFR 52.21(q), each District rule specifies the applicable public participation 

requirements. The public participation requirements for SIP-approved PSD programs are further discussed in 

Section 5.4 of this TSD.

In addition, Butte Rule 1107 and Santa Barbara Rule 810 exclude the following provisions from the rules’

incorporation by reference of 40 CFR 52.21:

• (i)(1)(i-v, ix-x) and (i)(6-8) – Exemptions
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These provisions are not necessary to implement a State PSD program. 40 CFR 51.166(i) makes clear that, for SIP 

approval purposes, a State “may” adopt these provisions into its PSD program, but States are not required to do

so.

Finally, Great Basin Rule 221, Butte Rule 1107, and San Luis Obispo Rule 220 also exclude paragraph (k)(2) from 

the rules’ incorporation by reference of 40 CFR 52.21 – the PM2.5 significant impact levels (SILs). As further 

discussed in Section 5.7 of this TSD, the PM2.5 SILs are appropriate for exclusion because they were vacated by the

D.C. Circuit Court of Appeals, and EPA later revised its regulations consistent with the Court’s ruling.

5.2 Revised Terms and Definitions

5.2.1 Definitions in 40 CFR 52.21(b)

Section E of Feather Rule 10.10 revises the definitions incorporated by reference from 40 CFR 52.21(b), as follows:

• The definition of “potential to emit” in 40 CFR 52.21(b)(4) is revised so that the phrase “is federally 

enforceable” instead reads “is federally enforceable or enforceable as a practical matter.”

• The definition of “allowable emissions” in 40 CFR 52.21(b)(16) is revised so that the language reading 

“unless the source is subject to federally enforceable limits which restrict the operating rate, or hours 

of operation, or both” instead reads “unless the source is subject to enforceable limits which restrict 

the operating rate, or hours of operation, or both.”

• Paragraph (iii) of the definition for “allowable emissions” is revised to read: “The emissions rate 

specified as an enforceable permit condition, including those with a future compliance date.”

SIP-approved PSD programs must use the definitions provided in 40 CFR 51.166(b), except that deviations are 

approvable if demonstrated to be more stringent, or at least as stringent, as the definition provided. The revisions 

made by Feather River to the definitions described above further clarify “federally enforceable.” We find these 

revisions to be at least as stringent as the definitions in 40 CFR 51.166(b). The four other District PSD rules do not 

contain these or analogous revisions.

5.2.2 Administrator

Each of the five District rules revises the term “administrator” incorporated by reference from 40 CFR 52.21, as 

follows:

• Each District rule defines the term “administrator” to mean “Federal administrator”, “EPA 

administrator”, or “Environmental Protection Agency administrator” in 40 CFR 52.21(b)(17), (b)(37)(i), 

(b)(43), (b)(48)(ii)(c), (b)(50)(i), (b)(51), (l)(2), and (p)(2).

• Each District rule otherwise defines the term “administrator” to mean “Air Pollution Control Officer 

(APCO)” or “Control Officer”, as defined in other District rules.

Because 40 CFR 52.21 was written to provide a framework for EPA to administer the PSD program in areas that do 

not have a SIP-approved PSD program, the term “Administrator” as used in section 52.21 refers to the EPA 

Administrator. Upon EPA’s approval of the Districts’ PSD SIP submittals, the Districts will be administering the PSD 
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program within each District, but certain authorities are retained for the EPA Administrator, per 40 CFR 51.166. 

Therefore, the Districts’ revisions described above are intended to differentiate between those provisions that will 

apply to the District as the entity that will administer the PSD program and those that will continue to refer to 

EPA. We find these revisions acceptable.

Except for Great Basin Rule 221, each PSD rule refers to paragraph (b) of 40 CFR 52.21 when revising the term 

“administrator.” However, instances of the term “administrator” are also revised with respect to paragraphs (l) 

and (p) of Subsection 52.21. This reference to paragraph (b) of 40 CFR 52.21 appears to be a typographical error,

and we recommend that the four Districts other than Great Basin (Feather River, Butte, Santa Barbara, and San 

Luis Obispo) revise their rules to remove the specific reference to “paragraph (b)” of 40 CFR 52.21 the next time 

the rule is revised.

5.2.3 References to 40 CFR 52.21(q)

As noted above, each District PSD rule excludes from its incorporation by reference 40 CFR 52.21(q), the public 

participation provision that applies when EPA is the PSD permitting agency. 40 CFR 52.21(q), in turn, directs EPA 

to follow the applicable procedures of 40 CFR part 124 when EPA processes PSD permit applications. In place of 

the federal public participation procedures applicable to EPA, the District rules adopt their own generally 

analogous public participation procedures. However, paragraphs (l)(2) and (p)(1) of 40 CFR 52.21, which the 

Districts’ rules incorporate by reference, cross-reference 40 CFR 52.21(q). Accordingly, the District PSD rules 

change the cross-references in the incorporated 52.21 provisions from “paragraph (q) of this section” to “the 

public notice and comment provisions of [the particular PSD rule or another SIP-approved rule],”with the 

exceptions described below.

Feather River Rule 10.10 revises the cross-reference to paragraph (q) only in 40 CFR 52.21(p)(1) as incorporated 

by reference, and this revision does not refer to paragraph (l)(2) of 40 CFR 52.21. This appears to be a minor 

oversight and we recommend that Feather River revise Section E.3 of Rule 10.10 accordingly the next time the 

rule is revised, to make this cross-reference clearer. In addition, San Luis Obispo Rule 220.C.2.b appears to include 

a typographical error concerning this provision, as it refers to section “(1)(2)” rather than “(l)(2)” of 40 CFR 52.21 

when revising this cross-reference. We recommend that San Luis Obispo revise Section C.2.b of Rule 220 

accordingly the next time the rule is revised, to make this cross-reference clearer.

In addition, Section E.3 of Feather Rule 10.10 revises the cross-references to paragraph (q) to refer to the public 

notice and comment provisions in its other SIP-approved NSR rule, Rule 10.1 – New Source Review. We find this 

reference acceptable because Rule 10.1 contains many of the notice and comment procedures in 40 CFR 

51.166(q), and Section G of Rule 10.10 already requires all PSD permits to follow the notice and comment 

procedures in Rule 10.10, which are generally consistent with 40 CFR 51.166(q). See further discussion in Section 

5.4 below. However, for greater clarity, we recommend that Feather River also add to Section E.3 a reference to 

the Section G.1 of Rule 10.10 the next time the rule is revised.

5.3 Additional Requirements

Within the “Requirements” section in each of the District PSD rules under consideration in this action, the Districts 

have included additional rule provisions beyond the language incorporated from 40 CFR 52.21 that the Districts

find necessary and appropriate to include in their PSD programs. These provisions include: 
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• PSD permits shall be issued pursuant to each PSD rule prior to beginning actual construction of a new 

major stationary source, a major modification, or a plant wide applicability limitation (PAL) major 

modification, as defined in 40 CFR 52.21(b); 

• The air pollution control officer (APCO) shall require compliance with the PSD rule prior to issuing a 

PSD permit; and

• Applicants shall pay the applicable fees specified.

EPA has reviewed these requirements and determined they are consistent with the requirements of 40 CFR 

51.166.

5.4 Public Participation

EPA’s Evaluation provides an analysis of how each District meets the requirements of 40 CFR 51.166(q) for public 

participation (see Attachment 1). Each PSD rule contains a section that requires the District to meet certain public 

participation requirements prior to issuing a PSD permit. These requirements are generally consistent with the 

public participation requirements listed in 40 CFR 51.166(q). Only those requirements that warrant additional 

discussion are described below.

5.4.1 Notifying applicants of application completeness

40 CFR 51.166(q)(1) requires: The reviewing authority shall notify all applicants within a specified time period as 

to the completeness of the application or any deficiency in the application or information submitted. In the event 

of such a deficiency, the date of receipt of the application shall be the date on which the reviewing authority 

received all required information. 

While this requirement is not in Feather River Rule 10.10, this requirement already exists in Feather River’s SIPapproved NSR program – in Rule 10.1, Section H.1.

2 Rule 10.1 applies to all new and modified stationary sources 

subject to Feather River’s permitting requirements, which includes sources regulated under the PSD program. 

The other District PSD rules also meet this requirement.

5.4.2 Final action within one year of a complete application

40 CFR 51.166(q)(2) requires that the reviewing authority make a final determination whether construction 

should be approved, approved with conditions, or disapproved within one year after receipt of a complete 

application. While this requirement is not found in Feather River Rule 10.10, this requirement is already met in 

the District’s SIP-approved NSR program in Feather Rule 10.10, Section H.5.a and I.7.a. Rule 10.10 generally 

requires a final determination within 180 days of a complete application. Certain requirements for power plants

allow for additional time, up to 240 days.

The four other District PSD rules also meet this requirement.

 

2 EPA finalized a limited approval and limited disapproval of Feather River Rule 10.1 as amended on February 7, 2012 into 

the California SIP, effective October 24, 2013. See 78 Fed. Reg. 58460 (Sept. 24, 2013). References in this TSD to Feather River 

Rule 10.1 refer to this current SIP-approved version of the rule.
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5.4.3 Notifying the public of the opportunity for a public hearing

40 CFR 51.166(q)(2)(iii) requires that the public notification for a preliminary determination include notice of the 

opportunity for comment at a public hearing. And, each rule includes the requirement in 40 CFR 51.166(q)(2)(v) to 

provide an opportunity for a public hearing. However, it is not entirely clear in Feather River Rule 10.10, Great 

Basin Rule 221, Butte Rule 1107, and Santa Barbara Rule 810 that the notice to the public must mention the 

opportunity to request a public hearing. Each of these four Districts confirmed that it interprets its PSD rule as

requiring the public notification to include reference to the opportunity to request a public hearing (in order to 

meet the requirement in their rule to provide an opportunity for a public hearing).

3 We recommend that each of 

these Districts revise its PSD rule, for clarity, the next time the rule is open for revisions.

San Luis Obispo Rule 220 already specifically includes the requirement that the public notification for a 

preliminary determination include notice of the opportunity for comment at a public hearing.

5.5 Notice to EPA – 40 CFR 51.166(p)(1)

40 CFR 51.166(p)(1) requires the reviewing authority to provide notice to the EPA of every action related to the 

consideration of a PSD permit:

Notice to EPA. The plan shall provide that the reviewing authority shall transmit to the Administrator a 

copy of each permit application relating to a major stationary source or major modification and provide 

notice to the Administrator of every action related to the consideration of such permit. 

For Feather River Rule 10.10, Feather River confirmed that this requirement is addressed to a certain extent by its 

incorporation by reference of 40 CFR 52.21(p)(2), which requires:

(2) Federal Land Manager. The Federal Land Manager and the Federal official charged with direct 

responsibility for management of such lands have an affirmative responsibility to protect the air quality 

related values (including visibility) of such lands and to consider, in consultation with the Administrator, 

whether a proposed source or modification would have an adverse impact on such values. (emphasis 

added)

As discussed above in Section 5.3.2, the reference to “Administrator” in 40 CFR 52.21(p)(2) refers to the Federal 

administrator and not the APCO. In its letter dated December 18, 2014, the FRAQMD confirmed that in order to 

ensure the Federal Land Manager (FLM) can work “in consultation with the Administrator”, the District will also 

provide notice to the EPA of the application and preliminary determination information that is already required to 

be provided to the FLM by 40 CFR 52.21(p)(1). Feather River committed to providing the application transmittals 

and notices to EPA required by 40 CFR 51.166(p)(1), and further committed to revising Rule 10.10, for clarity, to 

specifically incorporate the provisions in 40 CFR 51.166(p)(1) the next time Rule 10.10 is open for revisions.

The other District PSD rules also meet this requirement.

 

3 See letters dated November 13, 2014 from Butte, November 13, 2014 from Great Basin, November 25, 2014 from Santa 

Barbara, December 16, 2014 from San Luis Obispo, and December 18, 2014 from Feather River.
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5.6 Revisions to 40 CFR 52.21 and/or 40 CFR 51.166 Following Incorporation by Reference

Each District PSD rule under consideration in this action incorporates the provisions of 40 CFR 52.21 as in effect on 

a specific date. As such, any revisions made to 40 CFR 52.21 that were not in effect on the date specified in each 

rule are not a part of the Districts’ respective PSD rules. We discuss below a number of changes to the 

requirements in 40 CFR 52.21 that took effect after the dates on which the Districts adopted or revised their

PSD rules incorporating 40 CFR 52.21 by reference.

On July 12, 2012, revisions related to PALs for GHG emissions in 40 CFR 52.21 were published in the Federal 

Register and became effective on August 13, 2012 (see 77 Fed. Reg. 41051). Feather River Rule 10.10, Great Basin 

Rule 221, and Butte Rule 1107 do not include these revisions. However, these revisions were added only to 40 CFR 

52.21 and not to 40 CFR 51.166, and thus are not required elements for SIP-approved PSD programs. In addition, 

the PAL provisions are discretionary and not a required portion of the PSD program. We also consider this 

difference to be acceptable.

On December 24, 2012, revisions related to condensable PM became effective in 40 CFR 51.166 and 40 CFR 52.21 

(see 77 Fed. Reg. 65107 (October 25, 2012)). These revisions corrected an error where EPA inadvertently 

identified particulate matter (PM) as a criteria pollutant (that is, a pollutant subject to a NAAQS) when identifying 

how to treat condensable PM emissions. By not including this revision, Feather River Rule 10.10, Great Basin Rule 

221 and Butte Rule 1107 are potentially more stringent than the requirements of 40 CFR 51.166. However, EPA 

believes that since the revisions were made to correct an inadvertent technical error, the Districts have the 

discretion to determine that PM is clearly not a criteria pollutant and to therefore implement the rule by not 

considering PM to include condensable PM. Either way, the next time the rule is open for revisions and a new 

incorporation by reference date is used, this discrepancy will be corrected. We consider this difference to be 

acceptable.

On January 15, 2013, EPA issued a final rule revising the NAAQS for PM2.5 for the annual averaging period,

lowering the level of the NAAQS from 15.0 to 12.0 mg/m3

, effective March 18, 2013 (see 78 FR 3086). This new 

NAAQS is required to be implemented through the PSD permitting process as of the NAAQS effective date. The 

Districts’ incorporation by reference of the air quality analysis requirements in 40 CFR 52.21, specifically including 

40 CFR 52.21(k), ensures that the Districts’ PSD programs will require PSD sources to demonstrate compliance 

with this revised NAAQS. We note that this EPA rulemaking action also added a provision at 40 CFR 52.21(i)(11)

that grandfathered certain sources from the requirement to demonstrate compliance with this revised NAAQS

where the source’s PSD permit application was determined complete on or before December 14, 2012 or where 

the EPA first published before March 18, 2013 a public notice that a draft PSD permit had been prepared. EPA 

added similar language to 40 CFR 51.166(i), but such language was an optional element for SIP-approved PSD 

programs. The District rules that incorporate 40 CFR 52.21 by reference before March 18, 2013 do not include this 

new grandfathering provision. However, this difference does not affect our ability to approve these rules because 

(1) this grandfathering provision is not a required element for SIP-approved PSD programs and (2) the provision 

has expired and would not be available to sources seeking permits in these Districts. 

 

On April 5, 2015, revisions related to the 2008 Ozone Implementation Rule became effective in 40 CFR 51.166 and 

40 CFR 52.21. (80 Fed. Reg. 12264, Mar. 6, 2015) The rule revisions added clarifying language to 40 CFR 

51.166(i)(2) and 52.21(i)(2). These revisions clarify that PSD requirements are not applicable to a specific pollutant 

if the area is in nonattainment for any current standard. That is, a revoked NAAQS, like the 1997 8-hr ozone 

standard, does not determine whether PSD applies to a specific pollutant. Although the Districts’ PSD rules do not 

yet include this clarifying language, it is not necessary for approval. Generally, States have 3 years to make 
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changes to their PSD programs per 40 CFR 51.166(a)(6). In addition, the revisions do not add new requirements to 

the PSD program, but merely add clarifying language for the existing requirements. We recommend that the 

Districts adopt these revisions at the time of the next rule revision by updating each rule’s incorporation by 

reference date. 

In Sections 5.7-5.9 below, we discuss portions of 40 CFR 51.166 and/or 52.21 that were vacated or changed as a 

result of a court decision within the timeframes relevant to this action.

5.7 PM2.5 Significance Impact Levels and Significant Monitoring Concentrations

On January 22, 2013, the U.S. Court of Appeals for the District of Columbia (Court) in Sierra Club v. EPA, 705 F.3d 

458, granted a request from EPA to vacate and remand to EPA the portions of two PSD rules (40 CFR 51.166(k)(2) 

and 40 CFR 52.21(k)(2)) addressing the SILs for PM2.5 so that EPA could voluntarily correct an error in these 

provisions. The Court also vacated the parts of these two PSD rules (40 CFR 51.166(i)(5)(i)(c) and 40 CFR 

52.21(i)(5)(i)(c)) establishing a PM2.5 significant monitoring concentration (SMC), finding that EPA was precluded 

from using the PM2.5 SMC to exempt permit applicants from the statutory requirement to compile and submit 

preconstruction monitoring data as part of a complete PSD application. On December 9, 2013, revisions to 40 CFR 

51.166 and 52.21 were published in the Federal Register to remove these vacated rule elements, effective as of 

that date. 78 Fed. Reg. 73698.

As discussed further below in Sections 5.7.1 and 5.7.2, EPA requested clarification from the some of the Districts 

concerning their interpretation of their PSD rules to the extent those rules adopted the PM2.5 SILs and SMC 

provisions in 40 CFR 52.21 that were later vacated by the Court.

5.7.1 PM2.5 SILs

Feather River Rule 10.10 incorporated 40 CFR 52.21 by reference as in effect on August 1, 2011, thus the District’s 

rule incorporates by reference an earlier version of 40 CFR 52.21 that contains the PM2.5 SIL provisions that were 

later vacated by the Court and removed from 40 CFR 52.21 by EPA. Accordingly, EPA requested clarification from 

Feather River concerning its interpretation of Rule 10.10 to the extent that it incorporates by reference these 

PM2.5 SIL provisions. 

Feather River Rule 10.10 incorporated by reference the federal regulation at 40 CFR 52.21(k)(2) as in effect on

August 1, 2011, which had established SILs for PM2.5 and read as follows: 

(k)(2) Significant impact levels. For purposes of PM2.5, the demonstration required in paragraph (k)(1) of 

this section is deemed to have been made if the emissions increase from the new stationary source alone 

or from the modification alone would cause, in all areas, air quality impacts less than the following 

amounts: 

Pollutant Averaging time Class I area Class II area Class III area

PM2.5

Annual 0.06 μ/m3 0.3 μ/m4 0.3 μ/m5

24-hour 0.07 μ/m3 1.2 μ/m5 1.2 μ/m6

Paragraph (k)(1) requires that sources applying for a new PSD permit demonstrate that any allowable emission 

increases from the proposed source or modification, in conjunction with all other applicable emissions increases 
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or reductions, will not cause or contribute to a violation of any NAAQS or any applicable increment. 40 CFR 

52.21(k)(1).

In the preamble to the 2010 final rule adding the (k)(2) provision, EPA advised that, “notwithstanding the 

existence of a SIL, permitting authorities should determine when it may be appropriate to conclude that even a de 

minimis impact will ‘cause or contribute’ to an air quality problem and to seek remedial action from the proposed 

new source or modification.” Prevention of Significant Deterioration (PSD) for Particulate Matter Less than 2.5 

Micrometers (PM2.5) – Increments, Significant Impact levels (SILs) and Significant Monitoring Concentration (SMC), 

75 Fed. Reg. 64,864, 64,892 (Oct. 20, 2010). In another passage of the preamble, EPA also observed that “the use 

of a SIL may not be appropriate when a substantial portion of any NAAQS or increment is known to be 

consumed.” Id. at 64,894. The Court’s decision in Sierra Club v. EPA held that, contrary to these statements in 

the preamble, the text of the (k)(2) provision “does not give permitting authorities sufficient discretion to require 

a cumulative air quality analysis” under such circumstances. 705 F.3d at 464.

Feather River affirmed in its letter dated December 18, 2014 that, consistent with the Court’s decision in Sierra 

Club v. EPA, EPA’s subsequent revisions to its PSD regulations consistent with that decision, and the statements by 

EPA in the preamble to the 2010 final rule discussed above, Feather River does not interpret section 52.21(k)(2), 

as incorporated by reference in Feather River Rule 10.10, to preclude the District from exercising discretion to 

determine when it may be appropriate to conclude that an impact below the PM2.5 SIL values in section 

52.21(k)(2) will cause or contribute to an air quality problem and to seek remedial action from the proposed new 

source or modification. Feather River noted that such discretion is necessary to ensure adherence to the 

requirement of the Clean Air Act that a PSD project not cause or contribute to a violation of any NAAQS or any 

applicable increment. Based on this interpretation, Feather River affirmed that it will not read section 52.21(k)(2), 

as incorporated by reference in Rule 10.10, as an absolute “safe harbor,” but will exercise discretion to determine 

whether a particular application of the PM2.5 SIL values is appropriate when a substantial portion of the PM2.5

NAAQS or increment is known to be consumed. Feather River also stated that it retains the discretion to require 

additional information from a permit applicant as needed to assure that the source will not cause or contribute to 

a violation of any NAAQS or applicable increment pursuant to section 52.21(k)(1). Feather River further stated 

that it will consider the approach outlined in EPA’s Guidance for PM2.5 Permit Modeling released by EPA on May 

20, 2014 for determining the appropriate application of the PM2.5 SILs going forward.

The PSD rules submitted by Great Basin, Butte, and San Luis Obispo specifically excluded the PM2.5 SILs from their 

incorporation by reference of 40 CFR 52.21. Santa Barbara’s PSD rule incorporated by reference 40 CFR 52.21 as in 

effect after the PM2.5 SILs were vacated by the Court and no longer in effect, and thus does not include the PM2.5

SILs.

4

 

4 The Court’s mandate vacating the rule establishing the PM2.5 SILs was issued on March 19, 2013, as of which date the PM2.5

SILs in 40 CFR 52.21 were no longer in effect. Santa Barbara’s PSD rule incorporated 40 CFR 52.21 by reference as “in effect 

June 20, 2013,” after the Court’s March 19, 2013 mandate had issued. Accordingly, Santa Barbara has confirmed that its PSD 

rule does not incorporate the PM2.5 SILs that were vacated by the Court. See April 6, 2015 email from Michael Goldman, 

SBAPCD to Lisa Beckham, EPA. As noted above, on December 9, 2013, revisions to 40 CFR 51.166 and 52.21 were published in 

the Federal Register to remove these vacated rule elements, effective as of that date, consistent with the Court’s earlier 

vacatur. 78 Fed. Reg. 73698. 
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5.7.2 PM2.5 SMC

Feather River Rule 10.10 incorporated by reference 40 CFR 52.21(i)(5)(i) as in effect on August 1, 2011, Butte Rule 

1107 incorporated by reference 40 CFR 52.21(i)(5)(i) as in effect on June 28, 2012, and Great Basin Rule 221 

incorporated by reference 40 CFR 52.21(i)(5)(i) as in effect on July 1, 2012, at which times the PM2.5 SMC in 

52.21(i)(5)(i) remained in effect. The PM2.5 SMC provided that the District’s APCO may exempt a proposed major 

stationary source or major modification from the requirements of paragraph (m), with respect to monitoring for a 

particular pollutant, if the emissions increase or net emissions increase were below the applicable SMC. In their 

letters dated December 18, 2014, April 8, 2015, and April 15, 2015, respectively, Feather River, Butte and Great 

Basin confirmed that the language of section 52.21(i)(5)(i)(c) as incorporated into their PSD rules provides these 

Districts with the discretion to determine whether it is appropriate to apply the SMC for PM2.5 to exempt a permit 

applicant from the requirement to compile and submit preconstruction ambient monitoring data for PM2.5 as part 

of a complete PSD application. Consistent with the Court’s decision in Sierra Club v. EPA vacating the PM2.5 SMC, 

these Districts affirmed in their letters that they will not exercise their discretionary authority to use the PM2.5

SMC in order to exempt PSD permit applicants from the requirement in Clean Air Act section 165(e)(2) that 

ambient monitoring data for PM2.5 be included in applications subject to the PSD program for PM2.5. Accordingly, 

the APCO of each of these Districts will require all applicants requesting a PSD permit from the District to submit 

ambient PM2.5 monitoring data in accordance with Clean Air Act requirements when proposed increases of direct 

PM2.5 emissions or any emissions of a PM2.5 precursor equal or exceed a significant amount.

San Luis Obispo’s PSD rule specifically revised the PM2.5 SMC to be consistent with the Court’s decision. Santa 

Barbara’s PSD rule incorporated by reference 40 CFR 52.21 as in effect after the PM2.5 SMC was vacated by the 

Court and no longer in effect, and thus does not include the PM2.5 SMC.

5

5.7.3 Summary of PM2.5 SILs and SMC Issues

As discussed above, Feather River has clarified and confirmed that it intends to implement the PSD program with 

respect to the PM2.5 SILs consistent with the Sierra Club v. EPA Court’s decision, with EPA’s December 9, 2013 

revisions to the affected provisions of the PSD regulations, and with the statements by EPA in the preamble to the 

2010 final rule discussed above. In addition, as discussed above, Feather River, Butte and Great Basin have 

clarified and confirmed that they intend to implement the PSD program with respect to the PM2.5 SMC consistent 

with the Sierra Club v. EPA Court’s decision and EPA’s December 9, 2013 revisions to the affected provisions of the 

PSD regulations. Based on the clarifications provided by these three Districts, we find that these Districts’ PSD SIP 

submittals that include the PM2.5 SILs and/or SMC language that has been vacated by the Court are approvable 

and consistent with the Act and the requirements for a PSD program.

5.8 Biomass Deferral Rule

On July 20, 2011, EPA finalized a rulemaking entitled “Deferral for CO2 Emissions From Bioenergy and Other 

Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title V Programs (Biomass Deferral 

 

5 As with the PM2.5 SILs, the Court’s mandate vacating the rule establishing the PM2.5 SMC was issued on March 19, 2013, 

after which date the PM2.5 SMC in 40 CFR 52.21 was no longer in effect. Santa Barbara’s PSD rule incorporated 40 CFR 52.21 

by reference as “in effect June 20, 2013,” after the Court’s March 19, 2013 mandate. Accordingly, Santa Barbara has 

confirmed that its PSD rule does not incorporate the PM2.5 SMC that was vacated by the Court. See April 6, 2015 email from 

Michael Goldman, SBAPCD to Lisa Beckham, EPA.
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Rule)”. See 76 Fed. Reg. 43490. This rule excluded biogenic CO2 emissions6 until July 21, 2014 from the 

determination of CO2 emissions for bioenergy and other biogenic stationary sources under the PSD and title V 

programs’ definition of “subject to regulation” in 40 CFR 52.21(b)(49) and 40 CFR 70.2, respectively. The rule also 

allowed States the option to adopt the Biomass Deferral Rule into their SIPs and proceed accordingly. The Biomass 

Deferral Rule was effective on the same date that it was published, July 20, 2011. All of the District PSD rules that 

are the subject of this action, other than San Luis Obispo Rule 220, adopted the Biomass Deferral Rule exclusion 

by incorporating by reference the language in 40 CFR 52.21(b)(49)(ii)(a).

On July 12, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) in Center for 

Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013), vacated EPA’s Biomass Deferral Rule. On November 13, 

2013, however, the D.C. Circuit Court granted a motion to extend the deadline for rehearing petitions concerning 

its decision until 30 days after the United States Supreme Court’s (Supreme Court) decision in Utility Air 

Regulatory Group v. EPA, No. 12-1146, et al. After the Supreme Court issued that decision in June 2014, the D.C. 

Circuit Court further extended the deadline for rehearing petitions on the Biomass Deferral Rule decision until 

after further proceedings in Coalition for Responsible Regulation v. EPA, No. 09-1322, as the decision in the

Coalition for Responsible Regulation case was partially reversed by the Supreme Court in its Utility Air Regulatory 

Group v. EPA decision. Those proceedings ended on April 10, 2015 when the D.C. Circuit Court issued an amended 

judgment. Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322, (D.C. Cir. April 10, 2015) (Amended 

Judgment). Subsequently, on May 11, 2015, intervenors in the Center for Biological Diversity v. EPA case filed

petitions for rehearing. 

To ensure consistency with the D.C. Circuit Court’s decision to vacate the Biomass Deferral Rule, when adopting 

Rule 220, its PSD rule, San Luis Obispo revised the definition of the term “subject to regulation” at 

52.21(b)(49)(ii)(a) as incorporated by reference into Rule 220 to delete the biomass deferral provision – see 

Section C.2.c of Rule 220.

At this time, due to the ongoing legal proceedings, the Court has not issued a mandate to legally effectuate its 

decision to vacate the Biomass Deferral Rule. Nevertheless, it would be inconsistent with the express decision of 

the Court for a permit-issuing authority to rely on the Biomass Deferral Rule. Any permitting decision that relies 

on the Biomass Deferral Rule may be difficult to defend if challenged. 

The fact that the four District PSD rules incorporate by reference the Biomass Deferral Rule that was ordered 

vacated by the Court could potentially raise concerns about EPA’s approval of these rules. However, the exclusion 

in the Biomass Deferral Rule expired by its own terms on July 21, 2014. As the District rules in question 

incorporate the language in 40 CFR 52.21(b)(49)(ii)(a), the District rules likewise incorporate the July 21, 2014 

expiration date. Because the biomass exclusion in these District Rules does not apply after this date, our proposed 

approval of these rules into the SIP after the expiration of the Biomass Deferral Rule on July 21, 2014 is not 

inconsistent with the Court’s opinion concerning the Biomass Deferral Rule. 

 

6 Emissions of CO2 from a stationary source directly resulting from the combustion or decomposition of biologically-based 

materials other than fossil fuels and mineral sources of carbon (e.g., calcium carbonate) and biologically-based material 

(nonfossilized and biodegradable organic material originating from plants, animals or micro-organisms [including products, 

by-products, residues and waste from agriculture, forestry and related industries as well as the nonfossilized and 

biodegradable organic fractions of industrial and municipal wastes, including gases and liquids recovered from the 

decomposition of non-fossilized and biodegradable organic material]).
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5.9 Supreme Court Decision Related to Greenhouse Gases

The PSD permitting requirements applied to greenhouse gases for the first time on January 2, 2011. 75 Fed. Reg. 

17004 (Apr. 2, 2010). On June 3, 2010, the EPA issued a final rule, known as the Tailoring Rule, which phased in 

permitting requirements for GHG emissions from stationary sources under the CAA PSD and title V permitting 

programs. 75 Fed. Reg. 31514. Under its understanding of the Clean Air Act at the time, EPA believed the Tailoring 

Rule was necessary to avoid a sudden and unmanageable increase in the number of sources that would be 

required to obtain PSD and Title V permits under the CAA because the sources emitted greenhouse gas emissions 

over applicable major source and major modification thresholds. In Step 1 of the Tailoring Rule, which began on 

January 2, 2011, EPA limited application of PSD requirements to sources of GHG emissions only if the sources 

were subject to PSD “anyway” due to their emissions of pollutants other than greenhouse gases. These sources 

are referred to as “anyway sources.” In Step 2 of the Tailoring Rule, which began on July 1, 2011, EPA applied the 

PSD requirements under the CAA to sources that were then-classified as major, and, thus, required to obtain a 

permit, based solely on their potential GHG emissions and to modifications of otherwise major sources that 

required a PSD permit because they increased only GHG emissions above applicable levels in the EPA regulations. 

On June 23, 2014, the Supreme Court issued a decision in Utility Air Regulatory Group (UARG) v. Environmental

Protection Agency, 134 S. Ct. 2427, 189 L. Ed. 2d 372 (2014), holding that EPA may not treat GHGs as an air 

pollutant for purposes of determining whether a source is a major source (or a modification thereof) required to 

obtain a PSD permit. The Supreme Court’s decision also said that EPA could continue to require that PSD permits, 

otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions 

based on the application of BACT. The Supreme Court decision effectively upheld PSD permitting requirements for 

GHG emissions under Step 1 of the Tailoring Rule for "anyway sources" and invalidated PSD permitting 

requirements for GHG emissions for Step 2 sources. In accordance with the Supreme Court decision, on April 10, 

2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment 

vacating the regulations that implemented Step 2 of the Tailoring Rule, including 40 C.F.R. § 52.21(b)(49)(v), but 

not the regulations that implement Step 1 of the Tailoring Rule. Coalition for Responsible Regulation, Inc. v. EPA, 

No. 09-1322, (D.C. Cir. April 10, 2015) (Amended Judgment). 

In light of the Supreme Court’s UARG decision, and consistent with the D.C. Circuit’s amended judgment, each of 

the five Districts with PSD rules under consideration in this action requested that ARB notify EPA that ARB and the 

respective Districts would like to withdraw from the respective Districts’ PSD rule SIP submittals the portion of 

each District PSD rule that incorporates by reference 40 CFR 52.21(b)(49)(v). ARB sent a letter to EPA dated June 

1, 2015 making this withdrawal request for the five District PSD submittals. These withdrawals were designed to 

ensure that EPA can act on the District’s SIP submittals consistent with the Supreme Court’s UARG decision 

concerning Step 2 of the GHG Tailoring Rule and the D.C. Circuit’s amended judgment.7 With this withdrawal 

request from ARB, EPA’s action on these PSD SIP submittals will not include the provisions of 40 CFR 

52.21(b)(49)(v) as incorporated by reference into the five PSD rules at the state/local level. This approach will 

ensure that EPA’s action is consistent with the Supreme Court’s UARG decision and the D.C. Circuit Court’s April 

10, 2015 amended judgment. 

EPA intends to revise the PSD rules at 40 CFR 52.21 and 40 CFR 51.166 as a result of the UARG decision and the 

D.C. Circuit’s amended judgment. However, in the meantime, EPA and the states will need to ensure that 

“anyway” sources obtain PSD permits meeting the requirements of the Clean Air Act. The Clean Air Act continues 

to require that PSD permits issued to “anyway sources” satisfy the BACT requirement for greenhouse gases. Based 

 

7 See letter dated June 1, 2015 from Richard Corey, Executive Officer, California Air Resources Board.
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on the language that remains applicable under 52.21(b)(49)(iv), EPA will continue to limit the application of BACT 

to greenhouse gas emissions to those circumstances where a source emits greenhouse gases in the amount of 

75,000 tons per year on a CO2e basis. The EPA’s intention is for this to serve as an interim approach until EPA can 

complete revisions to its PSD rules consistent with the Supreme Court decision. Each of the five Districts has 

confirmed that it intends to apply 40 CFR 52.21 as incorporated by reference into each rule at the local level in a 

manner consistent with EPA’s interpretation of the Supreme Court’s decision and EPA guidance and policy with 

respect to application of section 52.21 while revisions to the PSD regulations are pending.8 Although the Districts 

provided this information to EPA prior to the D.C. Circuit’s amended judgment, this confirmation is consistent

with the D.C. Circuit Court’s amended judgment vacating the relevant rule provisions.

6. Program Transfer and Implementation Issues

Each of the five Districts provided information regarding its authority, personnel, and funding to carry out the PSD 

program within the respective District pursuant to CAA Section 110(a)(2)(E)(i), and, if applicable, the District’s

request to implement the PSD program with respect to existing PSD permits issued by EPA.

9

Except for San Luis Obispo, each District has confirmed that, as part of, and concurrent with, EPA’s approval of its

PSD program into the SIP, the District is requesting approval to exercise its authority to administer the PSD 

program with respect to the existing sources located in the District that have an existing PSD permit issued by 

EPA.10 This would include authority to conduct general administration of these existing permits, authority to 

process and issue any and all subsequent PSD permit actions relating to these permits including, for example, 

modifications, amendments, or revisions of any nature, and authority to enforce such permits. San Luis Obispo is 

not requesting such authority because there are no active sources in San Luis Obispo County with EPA-issued PSD 

permits.

Consistent with section 110(a)(2)(E)(i) of the Act, the Districts’ SIP submittals and the discussion in their 2014 

letters make clear that each of the Districts has the authority under State statute and rule to administer the PSD 

permit program, including but not limited to the authority to administer, process and issue any and all permit 

decisions, and enforce PSD permit requirements within the District. This applies to PSD permits that the District 

will issue and to existing PSD permits issued by EPA that are to be transferred upon the effective date of EPA’s 

approval of the each of the Districts’ PSD SIP submittals.

The Districts’ SIP submittals and 2014 letters also demonstrate each District has adequate personnel and funding 

to administer, implement and enforce the PSD program.

EPA intends to provide a copy of the existing permits to the Districts prior to the effective date of the final SIP 

approval of their PSD rules. Upon approval of each District’s PSD SIP submittal, EPA will assume an oversight role 

of the Districts’ PSD permitting programs, as intended by the Act.

 

8 See letters dated November 13, 2014 from Butte, November 13, 2014 from Great Basin, November 25, 2014 from Santa 

Barbara, December 16, 2014 from San Luis Obispo, and December 18, 2014 from Feather River.

9 See letters dated November 13, 2014 from Butte, November 13, 2014 from Great Basin, November 25, 2014 from Santa 

Barbara, December 16, 2014 from San Luis Obispo, and December 18, 2014 from Feather River. See also each District’s SIP 

Submittal for these rules as identified in Table 1.

10 See letters dated November 13, 2014 from Butte, November 13, 2014 from Great Basin, November 25, 2014 from Santa 

Barbara, December 16, 2014 from San Luis Obispo, and December 18, 2014 from Feather River.
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Feather River, Great Basin, Butte, Santa Barbara and SLO PSD Rules

Technical Support Document

7. Sections 110(a), 110(l), and 193 of the Act

CAA section 110(a) requires, among other things, that the requirements of SIP rules be enforceable. Sources 

subject to these PSD rules are required to meet emission limits and other measures for the prevention of 

significant deterioration of air quality, which meets the enforceability requirement in section 110(a).

We have also evaluated these PSD SIP revisions to determine whether they would interfere with any applicable 

requirement concerning attainment and reasonable further progress (RFP) or any other applicable requirement of 

the Act (CAA section 110(l)) or whether they would modify, in a nonattainment area, any SIP-approved control 

requirement in effect before November 15, 1990 (CAA section 193).

We find that our approval of these SIP submittals would comply with CAA section 110(l), because the SIP, as 

revised to reflect the submitted revisions, would provide for RFP and attainment of the NAAQS, and the 

requirements of the PSD SIP revisions are essentially equivalent to, and at least as stringent as, those of the FIP 

codified in 40 CFR Part 52.21 and used to date by EPA to implement the required PSD program within the 

Districts. As described elsewhere in this document, approval of these SIP submittals would merely result in the 

transfer of authority for the PSD program from the EPA to the Districts, and therefore would not result in any 

substantive changes to the PSD program requirements, other CAA requirements, or air quality.

Further, section 193 of the CAA does not apply to this proposed action because these submittals to incorporate 

PSD requirements into the SIP do not address nonattainment pollutants. 

8. Recommendations

Pursuant to section 110(k)(3) of the Act, we recommend full approval of:

• Feather River Rule 10.10 – Prevention of Significant Deterioration – Federal Requirements

• Great Basin Rule 221 – Prevention of Significant Deterioration (PSD) Permit Requirements for New Major 

Facilities or Major Modifications in Attainment or Unclassifiable Areas 

• Butte Rule 1107 – Prevention of Significant Deterioration (PSD) Permits

• Santa Barbara Rule 810 – Federal Prevention of Significant Deterioration (PSD)

• San Luis Obispo Rule 220 – Federal Prevention of Significant Deterioration

We recommend approval based on our determination that the submittals comply with the applicable statutory 

and regulatory provisions requiring regulation of major stationary sources, in particular, part C of title I of the Act.

If we finalize this action as proposed, our action would be codified through revisions to 40 CFR 52.220 –

Identification of plan and 40 CFR 52.270 – Significant deterioration of air quality. Our determination is based, in 

part, on the clarifying letters provided by the Districts and discussed herein and identified in Section 2. 

9. Attachments

• Attachment 1 – Evaluation of 40 CFR 51.166 and Feather River, Great Basin, Butte, Santa Barbara and SLO

District PSD Rules, EPA Region 9, July 2015.