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Page 1 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 **6560 -**  **50 -**  **P**
**ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52**  **[EPA -**  **HQ -**  **OAR -**  **2009 -**  **0517; FRL -**  **_________] RIN 2060**  **- A**  **Q62 Limitation of Approval of Prevention of Significant**  **Deterioration Provisions Concerning Greenhouse Gas Emitting**   ** Sources in State** **Implementation Plans; Final Rule**
**AGENCY:** Environmental Protection Agency (EPA).
**ACTION:** Final Rule.
**SUMMARY:** This action is another in a series of steps EPA is taking to implement the Prevention of Significant Deterioration (PSD ) program for greenhouse gas (GHG)

- emitting sources. EPA is finalizing its proposed rulemaking to narrow its previous approval of State Implementation Plan (SIP) PSD programs in 24
states that apply to GHG

- emitting sources. Specifically, EPA is withdrawing its previous approval of those programs to the extent they apply PSD to GHG

- emitting sources below the thresholds in the f inal 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 p art of its SIP that is no longer approved
. The states for whose SIPs EPA is narrowing approval

are: Alabama, California, Colorado, Georgia, Indiana, Iowa, Louisiana, M aine, Maryland, Mississippi, Missouri, New Deleted: **AP86**

Deleted: [ number ]

Deleted: **[ Note: This list is**  **tentative] :** *** E.O. 12866 Review

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Page 2 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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.g ov 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:** M r . Michael S. Brooks , Air Quality Policy Division, Office of Air Quality Planning and Standards (C504

- 01), Environmental Protection Agency, Research Formatted: Font: Times New Roman Field Code Changed

Formatted: Font: Times New Roman Field Code Changed

Deleted: Ms. Lynn Hutchinson*** E.O. 12866 Review

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Page 3 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 Triangle Park, NC 27711; telephone number: (919) 541

- 3 5 39 ; fax number: ( 919) 541

- 5509; e

- mail address: brooks
. michaels @epa.gov . **SUPPLEMENTARY INFORMATION:** For information related to a specific state, local, or tribal permitting authority, please contact the appropriate EPA regional office:
EPA regional office Contact for regional office (person, mailing address, 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

- 90 40
. 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. Deleted: 5795

Deleted: hutchinson.lynn

Formatted Table*** E.O. 12866 Review

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Page 4 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 Na tion; 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 s tates, 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*** E.O. 12866 Review

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Page 5 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 affected by this action are expected to be in the following groups: **Industry Group NAICS**  **a** 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 Formatted Table*** E.O. 12866 Review

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Page 6 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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*** E.O. 12866 Review

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Page 7 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 Gov ernments 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*** E.O. 12866 Review

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Page 8 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 J. Executive Order 12898

– Federal Actions to Address Environmental Justice in Minority Populations and Low

Income Populations K. Congressional Review Act L. Judicial Review VIII . Statutory Language
**II .**  **Overview of the Final Rule** This action finalize s EP A’s proposal to narrow the approval of state implementation plans ( SIPs ) that w e included in what we call the p roposed 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 , limit s PSD applicability for GHG emissions to larger sources
. The Tailoring Rule accomplished this purpose by set ting thresholds at wh ich 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 Deleted: limit*** E.O. 12866 Review

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Page 9 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 Rule thresholds 2

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 th ough the s tates would not have sufficient resources to implement the PSD program at those levels. Accordingly, the
p roposed 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 abo ve the higher thresholds established in the Tailoring Rule . When EPA finalized the Tailoring Rule, EPA , which are calculated on a carbon dioxide equivalent (CO 2 e) basis; and it emits GHGs at levels above the statutory 100/250 tons per year (tpy) mass

- based threshold generally applicable to all PSD

- regulated pollutants , and

– – if it is being modified

– – has or will have an emission increase on a mass basis
. The Tailoring Rule thresholds were designed to relieve the overwhelming administrative burdens and costs associated with the dramatic increase in permitting burden that would ha ve resulted from applying PSD at the statutory levels on January 2, 2011. Instead, the Tailoring rule established a phasing in of applicability for GHG sources , starting with the largest GHG emitters
.

2 The Tailoring rule thresholds establish applicability of the PSD permitting program to GHG

- emitting sources only if they emit GHG in amounts above the 75,000/100,000 tpy CO 2 e Deleted: alleviate

Deleted: regulating GHG emissions Deleted: threshold would place on PSD permitting authorities and*** E.O. 12866 Review

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Page 10 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 did not , however, finalize that part of the proposal. Instead, EPA waited to collect more information from the s tates to determine whether such action was necessary, and , if so, for which states. EPA is now finalizing that part of the Tailoring Rule proposal in 24 s tates. Thus, i n this action, EPA is narrowing its previous approval of th ose approved P SD 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 portion s 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 the se no - longer

- approved SIP PSD provisions
. The state may submit a SIP revision for EPA’s approval that incorporates the Tailoring Rule thresholds into the SIP. EPA will treat the approval of such a submission as removing these no

- longer

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Page 11 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 approved provis ions. 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 n either of these actions , EPA intend s to propose to disapprove those provisions
. The disapproval, if finalize d, will not result in the need to resubmit another SIP revision, sanctions, or a federal implementation plan ( FIP )
. This is because the provisions of the SIP that would be disapproved are not required for any purpose under the CAA or necessary to meet any CAA standard.
T his action ensures that the federal law applicable in the affected states does not require PSD permitting for GHG emissions below the f inal Tailoring Rule thresholds as of January 2, 2011. Once the s tates take acti on to amend their state law s , 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 comple ting these changes at the state level , and plan to complete chang es 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 in to SIP revisions to submit to EPA for approval. T he combination of this rule and state actions will, in the affected
states , eliminate , or at least greatly minimize , the time during*** E.O. 12866 Review

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Page 12 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 which GHG

- emitting sources that are below the Tailoring Rule thresholds w ill be subject to PSD in the state under either state or federal law while SIP revisions are being developed, submitted, and approved
. The states for whose SIPs EPA is narrowing approval are: Alabama, California 3 , Colorado, Georgia, Indiana, Iowa, Louisiana, Maine, Maryland, Mississippi, Missouri, New Hampshire, New Mexico 4

**III. Proposed Rule**  , North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, and Wisconsin.

We assume familiarity here with the statutory and regulatory background discussed in the preambles for the Tailoring Rule proposal and f inal 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

3 Specifically, EPA is narrowing its approval of the SIPs for 3 districts within California: Mendocino County, North Coast Unified, and Northern Sonoma County.
4 EPA is narrowing its approval of both the SIP for New Mexico, as well as the SIP for Albuquerque. Deleted: [ **Note: This list is tentative**  **]:***** E.O. 12866 Review

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Page 13 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 165(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 greenhous e 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 single final action, 5 the "Johnson Memo Reconsideration (also called the “Timing Decisi on”) ," 6 the "Light

- Duty Vehicle Rule (LDVR) ," 7 and the "Tailoring Rule." 8

5 "Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act." 74 FR 66 , 496 (December 15, 2009). 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

6 "Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs." 7 5 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" (commonl y referred to as the "Johnson Memo"), December 18, 2008. 7 "Light

- Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule." 75 FR 25 , 324 (May 7, 2010). 8 "Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule." 75 FR 31 , 514 (June 3, 2010).*** E.O. 12866 Review

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Page 14 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 emissions of these greenhouse gases from new motor veh icles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare under CAA section 202(a).” Id

Deleted: could be . The Endangerment Finding led directly to promulgation of the Vehicle Rule, also governed by CAA § 2 02(a), in which EPA set standards for the emission of greenhouse gases for new motor vehicles built for model years 2012

- 2016. 75 FR 25,324. The other two actions, the Johnson Memo Reconsideration and the Tailoring Rule, governed by the PSD and Title V
p rovisions 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 Reconsid eration provided EPA’s interpretation of a pre

existing definition in its PSD regulations delineating the “pollutants” that are taken into account in determining whether a source must obtain a PSD permit and the pollutants each permit must control. Regard ing 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 Tail oring Rule established a series of steps by which PSD and Title V permit requirements for greenhouse gases are phased in, starting with the largest*** E.O. 12866 Review

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Page 15 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 sources of greenhouse gas emissions. 75 FR 31,514. In addition, by Federal Register

In the p roposed Tailoring Rule , EPA proposed a major stationary source threshold of 25,000 tpy for GHG on a CO 2 e basis, for at least a specified period
. 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 issu e a “SIP call” under CAA section 110(k)(5) for those states that would require submission of a corrective SIP revision. 75 FR 53,892. At the same time, EPA proposed a FIP , under CAA §110(c), for those states. 75 FR 53,883.

Deleted: 9 EPA recognized that
even so, many SIPs with approved PSD programs would require PSD permitting of GHG

- emitting sources at the 100/2 50 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 s tate and f ederal law even after we finalized the Tailoring Rule. T his would result in the same problems of overw helming administrative burdens and costs that we designed the Tailoring Rule to*** E.O. 12866 Review

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Page 16 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 address. EPA also recognized that the solution to the se problem s lay in the form of SIP revisions that EPA would approve to raise the thresholds in approved state PSD permitt ing programs to conform
to the Tailoring Rule ( or, in the alternative, in the form of increased state resources )
. Until the states could develop and submit for approval such SIP revisions, and EPA could approve them, EPA proposed to narrow its approval o f the existing EPA

- approved SIPs that would regulate GHG emissions at levels below the Tailoring Rule thresholds. Specifically, EPA proposed to narrow its approval of the permitting threshold provisions , in c l uding the significance threshold provision s in the SIPs , to the extent those provisions required PSD permits for sources whose GHG emissions fall below the proposed Tailoring Rule threshold s. EPA based its proposed narrowing of approval on the fact that while the SIPs would require PSD to apply at the 100/250 tpy levels (and at the any mass increase level for modifications) , the states do not have the resources to implement the program at that level, and thus the SIPs were inconsistent with CAA section 110(a)(2)(E)(i), which requires th at states provide necessary assurances that they have adequate funding and personnel to implement their SIPs
. EPA proposed to rely, as the legal mechanisms for the proposed narrowing of approval , on CAA Deleted: limit

Deleted: limitations

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Page 17 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 section 301(a), which provides the EPA Ad ministrator 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 i n herent in the Administrative Procedures Act ( APA ) section 553
. In the alternative, EPA proposed to rely on the error correction provision of CAA section 110(k)(6). EPA did not propose to issue a SIP call under CAA section 110(k)( 5 ) for these SIP provisions. In the f inal Tailoring Rule, EPA established a schedule to
p hase

- in threshold levels of GHG emissions below which a source will not be required to obtain a PSD permit
. 10 EPA established the initial levels (which are higher than those in the p roposed Tailoring Rule ) in the first two steps of the phase

- in schedule,

c ommitted the agency to take future steps addressing smaller sources, and excluded the smalle st sources from PSD permitting for GHG emissions until at least April 30, 2016. In addition, i n the f inal Tailoring Rule, EPA chose revision of the definition of th e term “subject to regulation”

10 The final Tailoring Rule also established a threshold of 100,000 tpy CO2e for when a source would be considered a “major source” subject to title V permitting under 40 CFR part 70 and part 71. Today’s rule addresses issues related to adoption of the T ailoring Rule thresholds for state PSD programs only. EPA will promulgate a separate rule to address issues related to the adoption of the Tailoring Rule threshold for approved state operating permit programs. EPA notes, however, that some state title V programs are incorporated into SIPs and that further corrections of the SIP may be necessary in such cases.*** E.O. 12866 Review

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Page 18 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 f inal Tailoring Rule, EPA defined the term “subject to regulation” so that GHG emissions from sources at or above specified threshold s ( depending on the circumstances, 75,000 and/ or 100,000 tpy on a CO 2 e basis) are treated as subject to regulation . T hus , 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. 11
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 i mplementation of the Tailoring Rule in this manner, or in any other manner, prior to January 2, 2011, obviate s the need fo r
EPA to narrow its approval of the state’s SIP. Thus, in the f inal Tailoring Rule, EPA delayed final action on its proposal
to narrow approval for any SIP

- approved PSD programs. EPA

11 Unlike the proposed Tailoring Rule, the final Tailoring Rule did not set significance levels for GHG emissions. Deleted: limit

Deleted: limit*** E.O. 12866 Review

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Page 19 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 deferred making any decision regarding whether to narrow its approval of any SIPs until after learning the process and time

line for states to implement the Tailoring Rule. Based on information it had received, EPA expected that many states w ould quickly adopt the interpretation of the term “subject to regulation” used in the f inal Tailoring Rule , and the r eby

o b viate the need for EPA to narrow its approval or take any other action with respect to the SIP. Thus, EPA asked states to submit information

– – in the form of letters due within 60 days of publication of the Tailoring Rule (which we refer to as the 60

- day letters)

-- that would help EPA determine whether it needed to narrow it s approval of any SIPs. Almost all s tates 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,
Am erican Samoa, Guam, Puerto Rico, the U.S. Virgin Islands , and Indian Territory , do es not have an approved SIP PSD permitting
program . I nstead, federal requirements apply . T hus , in these jurisdictions, the thresholds in the Tailoring Rule will appl y witho ut further action. The second category includes the states (or districts within states) whose SIPs d o not appear to apply the PSD program Deleted: limit*** E.O. 12866 Review

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Page 20 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 to GHG

- emitting sources . A s 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 finaliz ed ( at about the same time as this action) a SIP call in 1 3 states , including 4 districts within states
. The remaining 30 states and 6 districts within states , the third category, have approved SIPs that apply their PSD program
to GHG

- emitting sources
. I n those states, absent further action, sources emitting GHG s at or above the 100/250 tpy levels will be subject to PSD requirements as of January 2, 2011 , if they construct or modify . Of these localities, 6 states and 4 districts within states have indic ated 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
. All or part of
t wenty

- four states , including 4 di stricts , 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 Deleted: is finaliz ing
Deleted: for 1 2 Deleted: and

Deleted: 2

Deleted: Twenty

- three
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Page 21 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 these changes prior to January 2, 2011. Some states have completed their SIP revisions and submitted them to EPA, and EPA expects to take final action on them promptly. EPA has only signed SIP revision approvals for two states, Alabama and Mississippi, though neither of these approvals ha s yet been published as of the signing of this rule. T hese states

– – including those that have indicated that they would submit SIP revisions to EPA to incorporate the Tailoring Rule thresholds , but for which EPA has not approved such SIP revision as of the date of this rule

– – are included in this rule. It should be noted that this rule focuses on eliminating the PSD obligation s under federal law for sources below the Tailoring Rule thresholds in states in the third category, those with approved SIPs that do not incorpora te the Tailoring Rule
. The s ources 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 the ir state law to reflect the Tailoring Rule thresholds and will have done so by January 2, 2011 , or very soon thereafter. Deleted: To date , ( ## )

Deleted: [ If we have already taken final action to approve the Tailoring Rule SIPs of any states, note that here.] All of these ( ## )

Deleted: [ If we have already taken final action to approve the Tailoring Rule SIP for any state, then say here that this state is not included in this rule .]*** E.O. 12866 Review

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Page 22 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 I n their 60

- day letters , none of the states indicated either that they intended to regulate GHG

- emitting sources at a level below the Tailoring Rule thresholds , or that they could or would increase their permitting resources to do so.
**IV. Final Rule**  A. Action
EPA is taking final action to narrow its approval of the SIPs for certain states. In the f inal 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 emit s 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 t hat 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 th e 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 Deleted: It should also be noted that i n

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Page 23 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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

n ote that once SIP revisions incorporating the Tailoring Rule thresholds are approved after the issuance of this rule, they 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 Admin i strator. 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 Deterioratio n 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,*** E.O. 12866 Review

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Page 24 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 and are no longer before EPA for its approval or disapproval.

If a state does n ot 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 fut ure . Any disapproval of such SIP provisions

– – again, those applying PSD to GHG

- emitting sources that emit GHGs below the Tailoring Rule threshold

– – will not , if finalized, result in the need to resubmit another SIP revision, in sanctions, or in a FIP. This is because the relevant provisions are not necessary to meet any applicable CAA requirement
. See CAA sections 110(k)(3) (requirements for SIP disapproval), 179(a)(2) (sanctions). In the p roposed 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 J anuary 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 with out the need for further action , or completed taking any further action necessary to incorporate the Tailoring Rule thresholds
. This rule does not*** E.O. 12866 Review

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Page 25 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 include final action on the proposal to narrow EPA’s approval of SIPs for states that do not have approved PSD SIP programs (the first category previously described) , and states that have approved PSD SIP programs that do not apply to GHGs ( the second category previously described). This rule also does n o t take final action on the proposal to narrow EPA’s approval of SIPs for states that have PSD SIP programs that cover GHG emissions, and that have already incorporated the Tailoring Rule thresholds via interpretation, SIP revision, or any other mechanism. The language being used for this final narrowing rule reflects changes from the language proposed in the Tailoring Rule in order to clarify a nd reflect the decisions about permitting thresholds reached in the final Tailoring Rule. The states for who m EPA is narrowing its approval of the
SIP PSD program in this action include: Alabama, California, Colorado, Georgia, Indiana, Iowa, Louisiana, Maine, Maryland, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, and Wiscons in
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 . A s a result, EPA is rescinding its Deleted: limit

Deleted: limit

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Page 26 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 t he applicability provisions of the PSD program ( which determin ed 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

assura nces” provision under CAA §110(a)(2)(E)(i)

-- were available or for which a plan was in place to acquire. The part of PSD applicability that is broader than what the state assurances covered is the part that exceeds EPA requirements for PSD applicability. The following section discusses this basis in more detail, beginning with the PSD applicability provisions ; then the state assurances provisions ; and then how the two provisions, read together, gave rise to the flaw s in the SIP s . 1. PSD applicability Each of the states subject to this rule has an approved PSD SIP program that app lies to sources of pollutants subject to regulation under the CA A. Some states’ programs meet EPA’s PSD requirements as they read prior to promulgation of the 2002 NSR rulemak ing , which we refer to as the NSR Reform rule. 12 These

12 “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Baseline Emissions*** E.O. 12866 Review

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Page 27 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 pre - Reform SIPs, include a PSD applicability provision that provide s that PSD applies to “any air pollutant subject to regulation.” 40 CFR 51.16 6 ( b )(1)(i) (2001). Other states subject to this rule ha ve 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 51.16 6 ( b )(1)(i), and define d that latter term to include pol lutants regulated under specified provisions of the CAA as well as “any pollutant that is otherwise subject to regulation under [the CAA].” 40 CFR 51.16 6 ( b )(49)(iv) . This quoted provision is similar to the pre

Reform provision , as both include the phrase “subject to regulation” in reference to the types of air pollutants that will be subject to the PSD program . Thus, each of the states subject to this rule has an approved PSD program

– - whether pre

Reform or Reform

-- that app lies to any air pollutant th at 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

co vered under the PSD program as soon as EPA promulgates a rule regulating that pollutant under any other provision of the CAA. Determination, Actual

- to

- Future

- Actuals Methodology, Plantwide Applicability Limitations, Clean Units, Pollution Control Projects,” Final Rule, 67 FR 10816 (December 2, 200 2).*** E.O. 12866 Review

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Page 28 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 Depending on the pollutant and the number and size of sources that emit it, these applicability provisions could result in a sign ificant 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). Import antly, the states affected by this action, while including in their SIP s a PSD applicability provision that applies PSD to any pollutant “subject to regulation,” generally d o not interpret their applicability provision , or any other provision in their SIPs , to incorporate limits on PSD applicability with respect to a new pollutant and the SIPs do not contain any other mechanism that would allow the State to interpret applicability more narrowly. As a result, the affecte d 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*** E.O. 12866 Review

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Page 29 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 of carbon dioxide, me thane, 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, 201 1, treat GHGs as a pollutant “subject to regulation” and therefore apply PSD to GHG

- emitting sources.
A s previously discussed, these SIPs will apply PSD to new GHG

emitting sources at the 100/250 tpy levels and to modified GHG

emitting sources at the any

- mass - increase levels
. None of these
SIPs , as currently approved, permits the interpret ation of the PSD applicability more narrowly, to apply to only GHG

- emitting sources at or above the Tailoring Rule thresholds. In contrast,

as previously noted , several other states are able to interpret their SIPs more narrowly and, as a result, are not subject to this action. The scale of the administrative program needed to effectively permit all sources emitting GHGs at the 100/250 tpy levels has h ighlighted 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 appli cability, so that at the outset PSD applies to GHG

- emitting sources only if they also emit GHG Deleted: elsewhere*** E.O. 12866 Review

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Page 30 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 in amounts above the 75,000/100,000 tpy CO 2 e threshold s set out in that rule
. 13 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 c ontrast , each of these SIPs applies GHG PSD applicability more broadly

– - indeed, much more 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 accor dance with the provisions of section 110(a) of the CAA
. Similarly, there is nothing inherentl y problematic with a SIP failing to include an y measure s 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.

13 In its first phase, starting January 2, 2011, PSD requirements for GHGs apply to sources that are required to seek a PSD permit for non

- GHG pollutants, and that also increase emissions of GHG by at least 75,000 tpy CO 2 e. In its second phase, start ing 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 CO 2 e and that undertake a modification that i ncreases net emissions of GHGs by at least 75,000 tpy CO 2 e.*** E.O. 12866 Review

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Page 31 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 2. State a ssurances 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 availabl e to the State and local agencies at the date of submission of the plan and any additional resources needed to carry out the plan during the 5

- year period following its submission. The description must include projections of the extent to which resources will be acquired at 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 ap proval, 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, t h e affected SIPs included expansive PSD applicability provisions for newl y 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*** E.O. 12866 Review

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Page 32 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 assurance s are “necessary” so that the state will have “adequate” resources. To be sure, EPA does not read the assurance s requirement to require that the state should somehow hold in reserve large amounts of resources to cover the possibility that the PSD
program would undergo such a large and rapid expansion. However, EPA does read the requirement to require that the state have a plan for acquiring the requisite additional amount of resources in the case of an expansion in PSD applicability
. Moreover, that plan should include an implementation schedule that would be consistent with the timing of expansion in PSD applicability
. PSD expansion may occur quite rapidly because PSD requirements apply immediately once they are triggered by subjecting a pollutant to reg ulation. 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 Jan ua ry 2, 2011

– - the pollutant

- em itting sources to which PSD then applies cannot*** E.O. 12866 Review

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Page 33 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 lawfully undertake construction or modification projects with out 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 permitti ng than currently do. As a result, EPA added, the administrative burdens associated with permitting small sources for affected state and local permitting authorities would overwhelm the authorities. For each state, EPA proposed to rescind approval of the part of the SIP that applies PSD to sources below the Tailoring Rule thresholds, unless the state demonstrated that it had adequate resources to permit at the lower levels. During the comment period on this proposal, no authority contested this understan ding 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 o f 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*** E.O. 12866 Review

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Page 34 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 inte nded to implement PSD for GHG

- emitting sources. 14 In those letters, none of the states claimed they could, or intended to, implement the Tailoring Rule at the statutory levels. From all this, it is clear that none of the states had included in their
state assurances an adequate plan to acquire resources to administer the PSD program for their GHG

- emitting sources at the 100/250 tpy level. It must be emphasized that there is nothing inherently problematic with a SIP whose state assurances do not include the previously

- described plan to acquire additional resources. Only
SIPs that lack any constraints to limit PSD applicability for new pollutants to match their resources must include such a plan. 3. Flaw in SIP Based on the previous analysis, it is clear that the SIPs subject to this action are flawed. They each are structured in a manner that may impose PSD applicability on new pollutants in an unconstrained manner, and yet they do not have a plan for acquiring resources to adequat ely administer any large new component s 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

14 The 60

- day letters are available at http://www.epa.gov/NSR/2010letters.html.*** E.O. 12866 Review

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Page 35 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 mism atched and therefore the SIP is flawed. As previously discussed, EPA’s recently promulgated GHG rules have highlighted this flaw. EPA notes that s ince the enactment of the PSD provisions,
EPA has periodically subjected pollutants to control for the firs t time, thereby triggering PSD applicability
. At the time the affected SIPs were submitted and approved, this structural flaw could have been recognized. That is, it could have been recognized that (i) the PSD applicability provisions were essentially un constrained, but that the resources the state assured would be available were constrained; and (ii) at some point in time, a pollutant could be come newly regulated that would expand PSD applicability to a point that would require

resources beyond what the state assured would be available
. It bears reiterating that EPA has discretion to interpret the CAA’s SIP requirements, 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 Deleted: be Deleted: and as a result Deleted: in Deleted: manner Deleted: a sizeable expansion o f*** E.O. 12866 Review

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Page 36 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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. Th e key provision s 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 a ny further submission from the s tate. With this action, EPA is determining that its action approving the PSD SIP provisions was “in error” due to the mismatch, previously*** E.O. 12866 Review

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Page 37 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 p rior 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 fu ture.

a. Type of e rror 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, C AA section 110(k)(6) provides EPA with the authority to correct its own “error , ” but nowhere does th is provision or any other provision in the CAA define what qualifies as “ error. ” Thus, the term should be given its plain language, everyday meaning. Webster’s II Dictionary defines an “error” as: “1) an act, assertion, or belief that unintentionally deviates from what is correct, right or true , 2) the state of having false knowledge . . . 4) a mistake . . .” Webster’s II New Riverside University Dictionary 442 (Houghton Mifflin Co. 198 8). Similarly, t he Oxford American College Dictionary 467 (2d ed. 2007) defines “error” as “a mistake” or*** E.O. 12866 Review

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Page 38 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 “the state or condition of being wrong in conduct or judgment.” These definitions are broad, and include all unintentional, incorrect or wrong actio ns or mistakes.
T he 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 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 i t s prior approval of the odor regulations without seeking approval of the change from Pennsylvania. Id
. at 779

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Page 39 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 overturn ing the Bridesburg opinion. This is apparent because CAA section 110(k)(6) both (i) authori zes 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 l imited to correction of typographical or similar mistakes; and (ii) provides that the error correction need not be accomplish ed via the SIP revision or SIP call process , which contrasts with the holding of Bridesburg requiring a SIP revision. Because Con gress 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 typo graphical or other similar mistakes
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Page 40 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 o f provisions from federally approved SIPs that are not related to the attainment or maintenance of NAAQS or any other CAA r e quirement. See , e.g ., “ Approval and Promulgation of Implementation Plans; Kentucky: Approval of Revisions to the State Implementati on 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 Plan s; New York, ” 63 FR 65557 (Nov. 27, 1998) (issuing direct final rule to correct SIP by removing a general duty “nuisance provision ” that had been approved in 1984 ); "Correction of Implementation Plans; American Samoa, Arizona, California, Hawaii, and Nevada State Implementation Plans," 63 FR 34,641 (June 27, 1997) ( correct ing five SIPs by deleting a variety of administrative provisions concerning variances , hearing board procedures, and fees that had been approved during the 1970s )
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Page 41 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 EPA ’s approval of t he 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) . U nder the familiar Chevron two

- step framework for interpreting administrative statutes , an agenc y must , under Chevron step 1, determin e 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

– 4 3 (1984).
As previously discussed, the PSD SIPs were flaw ed due to the mismatch between the PSD applicability provisions and the state assurances. EPA’s action approving the PSD SIPs in the face of that flaw was “in error” under CAA section 110(k)(6) in accordance with Chevron step 1. As previously discussed, “error” should be defined broadly to include any mistake, and approval of a flawed SIP is a mistake. Even if the term “error” i s not considered unambiguously to encompass the mistake that EPA made in approving the PSD SIPs under Chevron step 1, and instead i s considered ambiguous on this question , then under Chevron step 2 EPA has sufficient*** E.O. 12866 Review

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Page 42 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 discretion to determine that its approval action m eets the definition of “error.” That is, und er CAA section 110(k)(6), both the breadth of the term “error” and the authorization for EPA to “determin e[] ”

– - 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 th at mismatch as an error under that provision. b
. Narrowing of approval Under CAA section 110(k)(6), once EPA determines that its action in ap proving the PSD SIPs w as 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 “ a ppropriate” is open

- ended, and therefore confers broad discretion upon EPA to fashion a reasonable type of correction
. More generally , CAA section 110(k)(6) authorizes EPA to “determine[]” that its action was in error, and does not direct or constrain tha t determination in any manner. That is, the provision does not identify any factors that EPA must, or may not, consider in making the determination. This further indicates that this provision confers broad discretion upon EPA. EPA’s action corrects th e e rror by rescinding EPA’ s approval of the PSD threshold provisions to the extent they*** E.O. 12866 Review

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Page 43 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 apply PSD requirements to sources of GHG emissions below the f inal Tailoring Rule thresholds
. Correcting the error in this fashion is appropriate because it narrows the a pproval to the PSD requirements to the extent they apply to GHG

- emitting sources at or above the f inal Tailoring Rule thresholds. This approach (i) renders the PSD applicability provisions consistent with EPA regulations and (ii) solves the mismatch previ ously 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 threshold s . 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 applicability at the 100/250 tpy level and that it intends to acquire the additional resources to do so.*** E.O. 12866 Review

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Page 44 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 incorporat e new ly regulated pollutants in respects other tha n PSD applicability to GHG

emitting sources below the Tailoring Rule thresholds . As a procedural matter, EPA did not propose to do so in the Tailoring Rule proposal and EPA did not receive any comments indicating that it should do so
. In addition, CAA section 110(k)(6) gives EPA the authority to mak e corrections “as appropriate.” This language provides EPA with discretion to choose how to make corrections
. The current proble m resulting from EPA’s erroneous approvals of the SIPs in question is limited to the regulation of GHG emissions, and the current rule address es this problem. The scope of this action does not foreclose further action to address EPA’s error in the future
. An agency may properly address an issue in step

- by

- step fashion. See , e.g. , Grand Canyon Air Tour Coalition v. F.A.A. , 154 F.3d 455 (DC Cir. 1998), City of Las Vegas v. Lujan , 891 F.2d 927 (DC Cir. 1989). 75 FR at 31544
. In accordance with CAA section 110(k)(6), EPA has conducted this narrowing of approval through notice

- and

- comment rulemaking, which is the same manner as EPA conducted the prior approval. Deleted:

.
Deleted: give
Deleted: , when making Deleted: , to do so Deleted: when addressing an error in a SIP.

Deleted: involves
Deleted: addressing

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Page 45 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 2. Reconsideration under CAA section 301 and case law In the alternative to the e rror correction under CAA section 110(k)(6) discussed above , EPA is using its authority to reconsider its prior approval actions in order to narrow its approval of the SIPs at is sue. 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 19 9 0 CAA Amendments. Prior to the amendments, CAA section 110 (a)(2) authorized EPA to “approve or disapprove [a SIP], or any porti on thereof.” EPA

a pproved 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*** E.O. 12866 Review

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Page 46 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 reconsider its decisions, unless Congress specifically proscribes the agency's discretion to do so. See , e.g ., Gun South, Inc. v. Brady , 877 F.2d 858, 862 (11th Cir. 1989) (holding that agencies have implied authority to reconsider and rectify errors even though the applicable statute and regulations do not provide expressly for such reconsideration); Trujillo v. Gene ral 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 th e 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 find s further support for its authority to narrow its approval s 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 , " a nd CAA section 307(b)(1),*** E.O. 12866 Review

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Page 47 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 which expressly contemplates that persons may file a petition for reconsideration under certain circumstances (at the same time that a rule is under judicial review). These authorizations for other persons to petition EPA to amend or repeal a rule suggest that EPA has inherent authority , on its

own , to issue such amendment or repeal. This is because EPA may grant a petition from another person for an amendment to or repeal of a rule only if justified under the CAA, and if such an amendment or repeal is justified under the CAA, then EPA should be considered as having inherent authority to initiate the process on its own, even without a petition from another person
. EPA recently used its authority to reconsider prior actions and limit its prior approval of a SIP in connection with California conformity SIPs. See , e.g ., 68 FR 15720, 15723 (discussing prior action taken to limit approvals); 67 FR 69139 (taking final action to amend prior approvals to limit their duration); 67 FR 46618 (proposing to amend prior approvals to limit their duration, based on CAA sections 110(k) and 301(a)).
EPA had previously approved SIPs with emissions budgets based on a mobile source model that was current at the time of EPA's approval. Later, EPA updated the mobile source model. But, even though the model had been updated, emissions budgets would continue t o be based on the older, previously approved model in the SIPs, rather than the updated model. To rectify this*** E.O. 12866 Review

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Page 48 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 problem, EPA conducted a rulemaking that revised the previous SIP approvals so that the approvals of the emissions budgets would expire early, w hen the new ones were submitted by states and found adequate, rather than when a SIP revision was approved. This helped California more quickly adjust its regulations to incorporate the newer model. In this rule , EPA is using its authority to reconsider and narrow its prior approval of SIPs generally in the same manner as it did in connection with California conformity SIPs.
**V .**  **Comments and Responses** In this section, we provide responses to comments we received on the p roposed Tailoring Rule on narrowing EPA’s approval of some SIPs. Several industry commenters (4095, 4106, 4118, 4691, 4870, 5083, 5058, 5131, 5133, 5137, 5140, 5179, 5181, 5278, 5317, 5713, 6414, 16411) and state commenters (2729, 4019, 4866, 4989, 5039, 5084) object to ou r proposal to narrow our approval of pr eviously 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 accom pany its proposed actions with a SIP call.
A. Comments Regarding the Legal Mechanism for the Current Action Deleted: limit

Deleted: limiting

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Page 49 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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:

**•** 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 thre sholds 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

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Page 50 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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)

**•** The EPA is not proposing to correct any “error” “in the same manner” as it made its approval. The proposed Tailoring Rule in effect proposes a blanket narrowing on all past approvals; EPA is not issuing an individualized new proposed approval (or disapproval) action for each SIP that had been the subject of an individual EPA notice

- and

comment 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 wo uld justify a unilateral change in disregard of procedural requirements for SIP revisions. Some commenters state that in order to Deleted: limitation*** E.O. 12866 Review

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Page 51 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 be a mistake under Bridesburg , the original SIP approval must have been contrary to agency policy at the time of the SIP appr oval. One commenter also cited Detroit Edison Co.
v. EPA , 496 F.2d 244, 248

- 49 (6th Cir. 1974) in support of its argument that a substantive change to a SIP is a change in policy rather than a correction of an inadvertent mistake, and EPA cannot implement such a policy change in a SIP unilaterally (a proposed clarification by EPA of a SIP several months after promulgation was not in fact a clarification but a revision because it effected substantive change). (4870, 5080, 5140, 5181, 5278, 5317)

**•** 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 th at 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*** E.O. 12866 Review

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Page 52 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 undermines the carefully crafted federal

- sta te 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)

**•** 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 CA A 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 s eeking 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*** E.O. 12866 Review

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Page 53 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 section 553 do not apply to “the promulgation or rev ision of an implementation plan by the Administrator” under CAA section 110(c), which, in practical effect, is the action EPA proposes here. Even where section 553(e) applies, it merely directs agencies to allow parties to seek revisions of rules; it plai nly 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 correcti on authority under CAA section 110(k)(6) and , in the alternative, CAA section 301, read in light of EPA’s general authority to reconsider its actions , support the action EPA now takes to narrow it s 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 require ments. 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 EP A’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 Deleted: limit*** E.O. 12866 Review

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Page 54 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 reconsideration authority also applies to EPA’s reconsideration of its own actions.
S ections 110(k)(5) and (6) of the CAA are intended to address different types of problems with SIPs. Section 110(k)(6) targets “ error [ s ]” that EPA made at the time it approved the SIP. Thus, EPA may rely on CAA section 110(k)(6) when EPA’s own action

– – e.g., its original approval of a
state’s SIP

– – is erroneous. In contrast, s ection 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 co rrected 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*** E.O. 12866 Review

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Page 55 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 EPA from choosing to use the other one in the case of an overlap. Section 110(k)(6) of the CAA provides that “[w]hen e ver the Administrator determines that [a specified action] was in error, th e Administrator may ... revise such action....” This provision grants discretion to the Administrator to make the indicated determination (including the timing of the determination) and then grants the Administrator the discretion (“may”) to revise the action . No other provision in CAA section 110(k)(6), and none in section 110(k)(5), precludes that discretion in a situation in which the Administrator could have instead relied on section 110(k)(5). By the same token, CAA section 110(k)(5) provides that “[w]h enever 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]
. ”
T his provision also grants discretion to th e 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 th e 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

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Page 56 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 115(a) “ impl[ied] a degree of discretion ” in whether EPA had to make an endangerment finding). Inde ed, if, as commenters suggest, section 110(k)(5) wer e viewed as predominating over section 110(k)(6), then there would be very few circumstances under which secti on 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 require ments. Such a narr ow 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 i n “error . ” As previously noted, the term “error” should be defined broadly to includ e 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*** E.O. 12866 Review

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Page 57 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 provided a mechanism capable of rectifying mistaken actions . . . it is not reasonable to infer authority to reconsider agency action.” New Jersey , 517 F.3d at 583. In that case, the Court did find that Congress had, in fact, limited EPA's ability to remove sources from the list of HAP source categories, once listed, by requiri ng 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
11 0(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 d iscussed, 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 a ction carries out EPA’s functions, to reconsider its action under CAA section 110 in approving SIP*** E.O. 12866 Review

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Page 58 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 revisions , as authorized under the case law previously cited
. Likewise, EPA find s some support for its authority in APA section 553(e). However, EPA is not relying on APA section 553(e) as direct authority for this action, under which EPA is correcting an error. Rather, EPA considers APA section 553(e) to support the proposition

– – also supported by case law

-- that EPA has inherent authority to correct an error. Similarly to the APA, CAA section 307(b)(1) , which contemplates petitions for reconsideration by EPA of actions taken on SIP submissions , supports the proposition that EPA has inherent authority to reconsider prior decisions that were in error. Commenters’ concerns that EPA’s approach to this rule seriously undermines the CAA federal

- state partnership and the primary role given the states in the SIP development process are unfounded. This rule simpl y 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 th e submitted SIP provisions meet necessary requirements, and thus should be part of the SIP.
T his 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*** E.O. 12866 Review

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Page 59 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 exercise d its authority under CAA section 110(k)(6) very sparingly and judiciously. In the current case, EPA has taken this action after close communication with the states.
As previously discussed, t he 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 wit h the SIP without the need for s tate action, and because this approach provides the most efficient means for making the correction. Importantly, h owever, 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

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Page 60 of 15 3 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 110(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 1 1 0 (k)(6) in 1990 in fact indicated Congress’s intent to reinforce EPA’s broad authority to unilaterally correct any errors in SIP approvals, coming as it did after the Third Circuit adopted a narrow interpretation of error correction authority in Concerned
C itizens 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 a n 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 determ ination 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 Deleted: 100*** E.O. 12866 Review

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Page 61 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 do es 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 th e 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 com port 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 PS D to apply to GHGs, the existing thresholds contained in SIPs could be alleged by activist groups to become binding on GHGs under the anti

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Page 62 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 that these groups are currently advancing in various court

cases. Thus, even if a state wanted to revise its regulations similar ly to the federal Tailoring Rule and thereby relax the threshold, the anti

- backsliding provision might prevent it. (5140, 5181, 5278). One commenter was also concerned more generally that anti

- backsliding rules prevent E PA from “adjust[ing] greenhouse gas levels” under the Tailoring Rule. (5713). None of these comments raised objections to this action

narrow ing EPA’s prior approval of SIPs. Thus, it is not
necessary to address these comments here. However, to the extent the concern expressed in these comments could have been raised by changes to SIPs resulting from EPA’s narrowing of its prior approval, we choose to address the comments here in the interest of greater responsiveness
. While m any 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 sec tion 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 Deleted: limiting*** E.O. 12866 Review

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Page 63 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 of such air pollutant.” These provisions of section 193 apply to controls for pollutants for which an area is designated nonattainment. N o area of the country is designated nonattainment for GHGs
. This r ule prevents certain sources or modification projects that are not currently subject to PSD requirements from becoming subject to PSD due to their emissions of GHGs on January 2, 2010 when GHGs will become “subject to regulation” for purposes of the PSD pr ogram. GHGs are not currently subject to regulation under the PSD
program . Furthermore, the PSD program does not require emission offsets for new or modified major sources, and EPA does not consider the PSD program to achieve “emissions reductions” for
pur poses of section 193. Rather, the program merely limits future emissions growth. Thus, section 193 would not limit alteration of a PSD program because any revised program would meet the statutory test. Th erefore , 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 applic able requirement of this chapter.” CAA section 171 defines “reasonable further progress” as “such annual incremental reductions in emissions of the relevant air Deleted: In other wo rds, 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 other set attainment criteria. No ar eas of any states have been deemed to be nonattainment areas for GHGs. Thus*** E.O. 12866 Review

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Page 64 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 othe r 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 purs uant 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. 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*** E.O. 12866 Review

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Page 65 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 regul ated. (4019, 4095, 4866, 5080, 5083, 5084, 5131, 5133, 5140, 5179, 5278, 5317, 16411) After this action is published and becomes effective , federal law will not require affected states to issue PSD permits for GHGs emitted at levels below the Tailoring Ru le 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 responsibil ities under s tate law. However, most states affected by this rule have already begun the process of amending their state regulations to incorporate the Tailoring Rule thresholds. As previously noted, almost all states are on track to have changed their state law to incorporate the Tailoring Rule thresholds by January 2, 2011 or very shortly thereafter. EPA encourages states to continue to pursue this
process. Once states change their state law to incorporate the Tailoring Rule thresholds, then both the s tate law and f ederal law permitting requirements will be resolved. States can then*** E.O. 12866 Review

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Page 66 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 develo p ment processes ; those recommendations could be used here
. In the same proposal, EPA encouraged states to submit their SIP revisions for parallel processing, and th ereby speed EPA approval. EPA recognizes that it may take some months to receive EPA approval of the SIP revision, but during this time, the State and Federal law will already each have been changed. This rule thus helps ensure that sources emitting GHGs at below

Tailoring Rule levels will have relief from GHG permitting requirements as early as possible.
D. Comments on Preferred Alternative Courses of Action EPA received comments advocating alternate courses of action to address SIPs with the 100/250 tp y 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 tho se 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*** E.O. 12866 Review

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Page 67 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 secti on 105 grant funding on appropriate revisions to the PSD rules in SIP

approved states. (4691)

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

narrow or conform its prior approvals through CAA sections 301(a)(1) and 110(k)(6) with respect to ap plicability thresholds. However, the commenter believes EPA should take affirmative steps to ensure that states immediately either revise their regulations to raise existing lower thresholds or demonstrate that they have adequate resources and funding to manage their programs utilizing those existing lower thresholds. The commenter also believes that EPA should not finalize any action that would trigger GHG permitting until each state program has been amended (4298).

**•** An environmental group commenter (5306 ) believes that EPA and the states should collaborate on an expeditious, smooth transition in carrying out obligations to address GHGs under the PSD programs. The commenter believes it is reasonable for EPA to call for a SIP revision under section Deleted: limit*** E.O. 12866 Review

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Page 68 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 110(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 adopt ing 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 encourag ing states to amend their SIP requireme nts to conform to the PSD thresholds established in the f inal Tailoring Rule, and this rule is consistent with such action. In fact, many states have already begun the process of amending state regulations and submitting those changes to EPA for approval. EPA is working closely with many states to help complete this process as expeditiously as possible. This close interaction obviates the need for guidelines on how states might amend their laws. EPA’s narrowing of our prior approval of some SIPs is intended to assure that at least the federal law component of these SIPs will, in essence, reflect the Tailoring Rule thresholds, since not all states whose SIPs will cover GHGs on January 2, 2011 will be able to amend their SIP thresholds by that date
. EPA does not feel that a SIP call would provide any additional benefit over the current action. Since the affected Deleted: limiting*** E.O. 12866 Review

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Page 69 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 states are already making efforts to change their state laws and amend their SIPs, and have already in formed 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 R ule, in conjunction with the operation of the Clean Air Act, has already triggered the applicabili t y of PSD to GHG emitting sources. **VI. Effective Date** This rule is being issued under CAA § 307(d)(1)(V). CAA section 307(d) specifies that rules issued under its provisions are not subject to APA section 553. Thus, the 30

- day delay in effective date from the date of signature required under the APA does not apply. In addition, even if APA section 553 were to apply, AP A 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 beli eves that an immediate effective date is consistent with the purposes under APA section 553(d). EPA believes there is good cause for an immediate effective date due to the regulatory confusion that would result if states were federally required to impleme nt PSD GHG permitting at only the statutory thresholds starting on January 2, 2010
. In addition,*** E.O. 12866 Review

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Page 70 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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
t his action.
B. Paperwork Reduction Act This action does not impose any new information collection burden. Instead, this action will significantly reduce costs incurred by sources and permitting authorities relative to the costs that would be incurred if EPA did not revise this rule. In the f inal 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 emi ssions threshold of 100/250 tpy using a CO 2 e metric. This was compared with the 280 PSD permits currently issued per year. Thus, without the f inal*** E.O. 12866 Review

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Page 71 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 Tailoring Rule, the administrative burden for permitting GHG emissions would increase 280

- fold, an unmanage able increase. The current action takes further steps to implement the burden

reduction implemented by the f inal 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 Flexi bility 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 sign ificant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this final action on small entities, small enti ty 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 distric t with a*** E.O. 12866 Review

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Page 72 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 entitie s, 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 substa ntial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. We have therefore concluded that this final rule will relieve the federal regulatory burden for most affected small entities associated with the major PSD permit programs for new or modified major sources that emit GHGs, including small businesses, in the affected states. This is because this rule

narrows its approval of SIPs in affected states so as to raise Deleted: limits*** E.O. 12866 Review

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Page 73 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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. U nfunded 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 increas ed burden as a result of this rule; any burden related to amending state SIPs to incorporate different GHG emissions thresholds resulted from the f inal Tailoring Rule, not the current rule. Thus, this rule is not subject to the requirements of sections 20 2 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 requirements that might significantly or uniquely affect small governments. This rule is expected t o 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*** E.O. 12866 Review

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Page 74 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 f inal 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 i ndividual states in developing this rule.
F. Executive Order 13175

– Consultation and Coordination With Indian Governments Subject to Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may not issue a regulation that has tribal implications, that i mposes 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*** E.O. 12866 Review

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Page 75 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 with tribal officials early in th e 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, no r 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 f inal 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 publish ed an advance notice of proposed rulemaking ( ANPR ) that included GHG tailoring options for regulat ing GHGs under the CAA. (73 FR 44354, July 30, 2008). As a result of the ANPR, EPA received several comments from tribal officials on differing GHG tailoring options presented in the ANPR which were considered in the
p roposed Tailoring Rule and f inal Tai loring Rule. Additionally, EPA also specifically solicited comment from tribal officials on the p roposed 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*** E.O. 12866 Review

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Page 76 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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

su pply, distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects because this action would not create any new requirements for sources in the energy supply, distribution, or
use sectors.
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.*** E.O. 12866 Review

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Page 77 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are devel oped 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 technica l 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 (Fe b. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addres sing, 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 practicabl e to determine whether there would be disproportionately high and adverse human health or environmental effects on minority and/or low income*** E.O. 12866 Review

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Page 78 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 populations from this rule. This rule is necessary in order to allow for the continued implementation of permitti ng 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 f inal Tailoring Rule, EPA is ensuring that the affected states’ CAA
pe rmitting programs continue to operate by narrowing their applicability to the maximum number of sources the programs can possibly handle. This approach is consistent with congressional intent as it phases in applicability, starting with the largest sources initially, and then other sources over time , so as not to overwhelm state permitting programs
. By doing so, this rule allows for the maximum degree of environmental protection possible while providing regulatory relief for the unmanage able 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

u nder this final rule , though we do believe that this rule will Deleted: limiting*** E.O. 12866 Review

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Page 79 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 re port 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 Section 307(b)(1) of the CAA specifies which Federal Courts of Appeal have jurisdiction to hear petitions for review of which final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) when the agency action consists of “nationally applicable regulations promulgated, or final ac tions taken, by the Administrator,” or Deleted: indicates
Deleted: venue for Deleted: of*** E.O. 12866 Review

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Page 80 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” This rule narrowing EPA’s previous approvals of SIPs in 24
states to correct a flaw in those SIPs is “nationally applicable” within the meaning of section 307(b)(1). The circumstances that have led to this rul emaking are national in scope and are substantially the same for each affected state. They include EPA’s promulgation of nationally applicable GHG requirements that , in conjunction with the operation of the CAA PSD provisions, have resulted in GHG

- emittin g sources becoming subject to PSD . Moreover, in this rule, EPA is applying uniform principles for each affected state in this rule. At the core of this rulemaking is EPA’s recognition that when it approved each of the affected SIPs’ PSD applicabi lity provisions , it did so in the face of a mismatch

– - common to each SIP

-- between the breadth of those provisions and the scope of the resource assurances the states provided. EPA is now addressing this flaw in numerous SIPs across the country through the CAA section 110(k)(6) error correction provisions
. EPA’s analytical approach for each SIP is the same, its determination that each SIP was flawed and therefore that EPA erred in its approval of each SIP is the same, and EPA’s remedia l action of rescinding Formatted: Adjust space between Latin and Asian text, Adjust space between Asian text and numbers Deleted: limiting Deleted: 24

Deleted: approval

Deleted: recognizing and

Deleted:*** E.O. 12866 Review

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Page 81 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 its previous approval of part of the SIP and thereby narrowing its approval of the SIP is the same. This rulemaking action is supported by a single administrative record, and does not involve factual questions unique to the differen t affected
states. In addition, this rule applies to multiple States in numerous judicial circuits across the country. For similar reas ons, this rule is based on determination s of nationwide scope or effect. EPA uses a uniform legal interpretation in all the affected States across the country; for the same reasons in each case, EPA is determining that each SIP was flawed and that EPA the refore erred in approving it. Similarly, EPA is determining that the appropriate remedial action is to rescind its approval in part and thereby narrow its approval, and this too is the same for each state. Because the states are spread across the nation, each of these determinations is nationwide in scope or effect. Moreover, EPA is making these determinations and promulgating this action within the context of nationwide rulemakings and interpretation of the applicable CAA provisions, as noted above. Thus , any petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by **[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 Deleted: T he 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 the CAA, Congress noted that the Administrator’s determination that an action is of “nationwide scope or effect” would be appropri ate 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 c orrections 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. ¶*** E.O. 12866 Review

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Page 82 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 pu rposes 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

n ot be challenged later in civil or criminal proceedings brought by us to enforce these requirements. Pursuant to section 307(d)(1)(V) of the Act, the Administrator determines that this action is subject to the provisions of section 307(d). Section 307(d)( 1)(V) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” This action finalizes elements of a previous proposed action

– the Prevention of Significant Deterioration and Title V Greenhouse Gas Ta iloring 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)).*** E.O. 12866 Review

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Page 83 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 **Page 8**  **4 of**  **1 54**  **- 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. Deleted: **81** Deleted: **142***** E.O. 12866 Review

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Page 84 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 . **Subpart B –**  **Alabama** 2. Section 52.53 is amended 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 Ac t. 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 adop tion 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 Formatted: Line spacing: Double Deleted: revised Deleted: ¶

Formatted: Not Highlight*** E.O. 12866 Review

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Page 85 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 regul ation if: (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major statio nary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of Deleted:*** E.O. 12866 Review

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Page 86 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 operation that will result in an emissions increase of 75,000 tpy CO 2 e 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, perfluorocarbo ns, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 po llutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in EPA

- approved Alabama Department of Environmental Management (ADEM) Rules 335

- 3

- 14

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

- 3

- 14

- .04(2)(u) ) and a significant net emissions increase ( as defined in EPA

- approved Alabama Department of Environmental Management (ADEM) Rule s 335

- 3

- 14

- .04(2)(c) and 335

- 3

- 14

- .04(2)(w) ) occur. For the pollutant GHGs, an emissions increase Formatted: Subscript

Formatted: Subscript

Deleted: [ cite the analogue to 51.166(a)(7)(iv)]

Formatted: Not Highlight Deleted: this section

Deleted: paragraphs [ cite the state analogue to 51.166(b)(3) and (b)(23)] Formatted: Not Highlight Deleted: this section )*** E.O. 12866 Review

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Page 87 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in Alabama Department of Environmental Management (ADEM) Rules 335

- 3

- 14

- .04(2)(w). **Subpart F –**  **California** 3. Section 52.223 is amended by adding paragraph s (f ) , (g), and (h ) to read as follows: **§ 52.223 Approval status.** 

* * * * * ( f )(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in North Coast Unified Air Quality Management District’s approved plan apply to stationary sources of greenhouse gas (GHGs) emissions, the Administrator approves that application only to the extent that GHGs are “subject to regulation", as provided in this subsection ( b ), and the Administrator takes no action on that applic ation to the extent that GHGs are not “subject to regulation.” (2) Beginning January 2, 2011, the pollutant GHGs is subject to regulation if: (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or Deleted: paragraph [ cite the analogue to 51.166(b)(23)(ii)] Deleted: this section.

Deleted: Deleted: paragraph

Deleted: this subpart

Deleted: f*** E.O. 12866 Review

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Page 88 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (ii) The stationary source is an existing major stationary source fo r a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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, perfluoroc arbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 th e pollutant GHGs, by the Deleted:

Deleted: f

Formatted: Subscript

Deleted: f
Deleted: (i)*** E.O. 12866 Review

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Page 89 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in the EPA

- approved North Coast Unified Air Quality Management District rules at R1

- 1

- 130(s2) ) and a significant net emissions increase (as defined in the North Coast Unified Air Quality Management District rules at R1

- 1

- 130(n1) ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy
CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in the EPA

- approved North Coast Unified Air Quality Management District rules at R1

- 1

- 130(s2)
. ( g )(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in Northern Sonoma County Air Pollution Control District’s approved plan apply to stationary sources of greenhouse gas (GHGs) emissions, the Administrator approves that app lication 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.”*** E.O. 12866 Review

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Page 90 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (2) Beginning January 2, 2011, the po llutant GHGs is subject to regulation if: (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary so urce is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this s ubsection (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*** E.O. 12866 Review

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Page 91 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 greenhouse gases: Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride
. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) shall represent an amount of GHGs emitted, and shall be computed as follows: (A) Multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph ( b )(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in the EPA

- approved Northern Sonoma County Air Pollution Control District rules a t R1

- 1

- 130(s2) ) and a significant net emissions increase (as defined in the Northern Sonoma County Air Pollution Control District rules at R1

- 1

- 130(n1) ) occur. For the pollut ant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in the EPA

- approved Northern Sonoma County Air Pollution Control District rules at R1

- 1

- 130(s2)
. Formatted: Subscript

Deleted: f

Deleted: [ cite the analogue to 51.166(a)(7)(iv)] of this section )

Deleted: paragraphs [ cite the state analogue to 51.166(b)(3) and (b)(23)] of this section )

Deleted: paragraph [ cite the analogue to 5 1.166(b)(23)(ii)] of this section.*** E.O. 12866 Review

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Page 92 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 ( h )(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in Mendocino County Air Quality Management District’s approved plan apply to stationary sources of greenhouse gas (GHGs) emissions, the Administrator approves that application only to the extent that GHGs are “subject to regulation", as provided in this subsection (b), and the Administrator takes no action on that applica tion 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 al so will emit or will have the potential to emit 75,000 tpy CO 2 e 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 pol lutant, and an emissions increase of 75,000 tpy CO 2 e 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 sour ce that will emit or have the potential to emit 100,000 tpy CO 2 e; or Deleted: 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) Deleted: this subpart

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Page 93 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operat ion that will result in an emissions increase of 75,000 tpy CO 2 e 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 CO 2 equivalent emissions (CO 2 e) 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 re sultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in the EPA

- approved Mendocino County Air Quality Management District rules at R1

- 1

- 130(s2) ) and a significant net emissions increase (as defined in the Me ndocino County Air Formatted: Subscript

Formatted: Subscript

Deleted: [ cite the analogue to 51.166(a)( 7)(iv)] of this section )

Deleted: paragraphs [ cite the state analogue to 51.166(b)(3) and (b)(23)] of this section )*** E.O. 12866 Review

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Page 94 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 Quality Management District rules at R1

- 1

- 130(m1) (1982) ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significan t” is defined as 75,000 tpy CO 2 e instead of applying the value in the EPA

- approved Mendocino County Air Quality Management District rules at R1

- 1

- 130(s2)
. **Subpart G –**  **Colorado** 4. Section 52. 323 is amended to read as follows: **§ 52. 323**  **Approval status.**

(a) With the exceptions set forth in this subpart, the Administrator app roves 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 exte nt 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.” Deleted: paragraph [ cite the analogue to 51.166(b)(23)(ii)] of this section.

Deleted: 5.
Deleted: 572 Deleted: revised Deleted: **572**
Deleted: (a) Moved down [1]: 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. ¶ Formatted: Not Highlight*** E.O. 12866 Review

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Page 95 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (2) Beginning January 2, 2011, the pollutant GHGs is subject t o regulation if: (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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 Deleted:

Formatted: Subscript*** E.O. 12866 Review

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Page 96 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 greenhouse gases: Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbo ns, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 po llutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in paragraphs I.A.2. through I.A.3, and I.B of Part D of Colorado’s Air Qu ality Commission’s Regulation Number 3) and a significant net emissions increase (as defined in paragraphs II.A.26 and II.A.42.a of Part D of Colorado’s Air Quality Commission’s Regulatio n Number 3 ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in paragraph II.A.42.b of Part D of Colorado’s Air Quality Commission’s Regulation Number 3. **Subpart L –**  **Georgia** Formatted: Subscript

Deleted: [ cite the analogue to 51.166(a)(7)(iv)] of this section )

Deleted: [ cite the state analogue to 51.166(b)(3) and (b)(23)] of this section

Deleted: [ cite the analogue to 51.166(b)(23)(ii)] of this section.

Deleted: 6
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Page 97 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 5. Section 52. 572 is amended 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 stationa ry 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 exten t 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 w ill have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also Deleted: 773 Deleted: by adding paragraph (k) Deleted: **773** Moved (insertion) [1]

Formatted: Not Highlight

Deleted: * * * * * ¶ (k

Deleted: k*** E.O. 12866 Review

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Page 98 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 statio nary source that will emit or have the potential to emit 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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 greenhous e gases: Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) shall represent an amount of GHGs emitted, and shall be computed as follows: (A) Multiplyin g 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. Deleted:

Deleted: k

Formatted: Subscript

Deleted: k

Formatted: Subscript*** E.O. 12866 Review

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Page 99 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 40 CFR 52.21(a)(2)(iv) (2006) and the EPA

- approved Georgia Environmental Protection Division (EPD) Rules 391

- 3

- 1

- .02(7)(a)2.(I) thru (IV ) (2006)) and a significant net emissions increase (as defined in 40 CFR 52.21(b)(3) and (b)(23)(i) (2006) ) occur. 40 CFR 52.21 (2006) is pres ently incorporated by reference into Georgia’s approved plan at EPA

- approved Georgia EPD Rule 391

- 3

- 1

- .02(7)
. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR p ollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 40 CFR 52.21(b)(23)(ii). **Subpart P –**  **Indiana** 6. Section 52.773 is amended by adding paragraph (k) to read as follows: **§ 52.773 Approval status.**
* * * * * (k)(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in this subpart apply to stationary sources of greenhouse gas (GHGs) emissions, the Administrator approves that application only to the extent that Deleted: (B)*** E.O. 12866 Review

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Page 100 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 GHGs are “subject to r egulation", 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.” (2) Beginning January 2, 2011, the pollutant GHGs is subject to regulation if: (i) The stat ionary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regul ated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this subsection (k)

–*** E.O. 12866 Review

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Page 101 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (i) the term greenhouse gas shall mean the air pollutant defined in 40 CFR 86.1818

- 12(a) as the aggregate group of six greenhouse gases: Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) sh all represent an amount of GHGs emitted, and shall be computed as follows: (A) Multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (k)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in [ 326 IAC

- 2

- 2

- 2(d) of Indiana’s Administrative Code ) and a significant net emissions increase (as defined in 326 IAC

- 2

- 1, paragraphs (ii ) and ( ww) of Indiana’s Administrative Code ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calcula ted assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in paragraph 326 IAC 2

- 2

- 1(ww) (1)(V) of Indiana’s Administra tive Code
. Deleted: cite the analogue to 51.166(a)(7)(iv)] Formatted: Not Highlight Deleted: this section Deleted: [ cite the state analogue to 51.166(b)(3 Formatted: Not Highlight Deleted: b)(23)] Formatted: Not Highlight Deleted: this section

Deleted: [ cite the analogue to 51.166(b)(23)(ii)] of this section*** E.O. 12866 Review

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Page 102 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 **Subpart Q –**  **Iowa** 7. Section 52.822 is amended by adding paragraph (b) to read as follows: **§ 52.822 Approval status.**
* * * * * (b)(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in this subpart apply to stationary sources of greenhouse gas (GHGs) emissions, the Administrator approves that application only to the extent that GHGs are “subject to regulati on", 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 CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NS R pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e or more; and, Deleted:*** E.O. 12866 Review

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Page 103 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (3) Beginning July 1, 2011, in addition to the provisions in paragraph (b)(2) of this subse ction, the pollutant GHGs shall also be subject to regulation: (i) At a new stationary source that will emit or have the potential to emit 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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 CO 2 equivalent emissions (CO 2 e) 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 wa rming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph ( b )(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. Formatted: Subscript Deleted: (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 (CO 2 e) shall re present an amount of GHGs emitted, and shall be computed as follows: ¶ (A) Multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. ¶ (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. ¶ (iii ) t he 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 polluta nt GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e 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 regula tion", as provided in this subsection (c) , ... Formatted: Subscript Deleted: c*** E.O. 12866 Review

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Page 104 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 40 CFR 52.21 (a)( 2 )(iv )) and a significant net emissions increase (as defined in 40 CFR 52.21 (b)(3) and (b)(23 )(i)) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 40 CFR 52.21 (b)(23)(ii ) of this section. **Subpart T –**  **Louisiana** 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 Louisiana’s approved plan apply to stationary sources of greenhouse gas (GHGs) emissions, the Administrator approves that application only to the extent that GHGs are “subject to regulation", as provided in this subsection ( c ), and the Administrator takes no action on that applic ation to the extent that GHGs are not “subject to regulation.” (2) Beginning January 2, 2011, the pollutant GHGs is subject to regulation if: Deleted: [ cite the analogue to 51.166

Formatted: Not Highlight Deleted: 7 Formatted: Not Highlight Deleted: )] of this section )

Deleted: paragr aphs [ cite the state analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section )

Deleted: paragraph [ cite the analogue to 51.166 Formatted: Not Highlight Deleted: )] Deleted: 9
. Deleted: 1022 Deleted: revised Deleted: **1022 Approval status**
Deleted: (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 Deleted: this subpart

Deleted: b*** E.O. 12866 Review

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Page 105 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and a lso will emit or will have the potential to emit 75,000 tpy CO 2 e 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 po llutant, and an emissions increase of 75,000 tpy CO 2 e 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 so urce that will emit or have the potential to emit 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of
oper ation that will result in an emissions increase of 75,000 tpy CO 2 e 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. Deleted:

Deleted: b

Formatted: Subscript

Deleted: b*** E.O. 12866 Review

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Page 106 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (ii) the term tpy CO 2 equivalent emissions (CO 2 e) shall represent an amount of GHGs emitted, and shall be computed as follows: (A) Multiplying the m ass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph ( c )(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in the EPA

- approved Louisiana Administrative Code (LAC), Title 33, Part III, Chapter 5, Section 509, Subsection B) and a significant net emissions increase (as defined in LAC 33:III.509.B ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in the EPA

- approved definition of “significant” at LAC 33:III.509.B
. **Subpart U –**  **Maine** 9. Section 52.1022 is amended to read as follows: **§ 52.1022 Approval status.** Formatted: Subscript

Deleted: b

Deleted: [ cite the analogue t o 51.166(a)(7)(iv)] of this section )

Deleted: paragraphs [ cite the state analogue to 51.166(b)(3) and (b)(23)] of this section

Deleted: paragraph [ cite*** E.O. 12866 Review

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Page 107 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (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 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 sta tionary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e or more; and, (3) Beg inning July 1, 2011, in addition to the provisions in paragraph (b)(2) of this subsection, the pollutant GHGs shall also be subject to regulation: Formatted: Not Highlight Deleted: analogue

Formatted: Not Highlight Deleted: 51.166(b)(23)(ii)] of Deleted: section.*** E.O. 12866 Review

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Page 108 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (i) At a new stationary source that will emit or have the potential to emit 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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 CO 2 equivalent emissions (CO 2 e) 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 pollut ant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (ii i) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 06

- 096 1. of Chapter 100 of Maine’s Bureau of Air*** E.O. 12866 Review

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Page 109 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 Quality Control regulations) and a significant net emissions increase (as defined in 06

- 096, paragraphs 89 and 144 A of Chapter 100 of Maine’s Bureau of Air Quality Control regulations) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NS R pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 06

- 096, paragraphs 143 and 144 D of Chapter 100 of Maine’s Bureau of Air Quality Control regulations. **Subpart V –**  **Maryland** 10. Section 52.1073 is amended by adding paragraph (h) to read as follows: **§ 52.1073 Approval status.** 
* * * * * (h)(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in this subpart apply to stationary sources of greenhouse ga s (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:*** E.O. 12866 Review

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Page 110 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (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 em it 75,000 tpy CO 2 e 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 t py CO 2 e or more; and, (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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increa se of 75,000 tpy CO 2 e 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, hyd rofluorocarbons, perfluorocarbons, and sulfur hexafluoride. Deleted:

Formatted: Subscript*** E.O. 12866 Review

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Page 111 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 e ach gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that a net significant emissions increase (as defined in 40 CFR part 52.21(b)(3) (i) (2000) and the EPA

- approved Maryland rules at COMAR 26.11.06.14 ( state effective date 10/10/2001))
. For the pollutant GHGs, a net emissions increase shall be based on tpy
CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 40 CFR 52.21 (b)(23)(ii ) (2000)
. **Subpart Z –**  **Mississippi** 11. Section 52.1272 is amended 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 Formatted: Subscript

Deleted: both
Deleted: calculated using the procedures in [ cite the analogue to 51.166(a)(7)(iv)] of this section ) and a significant net emissions inc rease (as Deleted: paragraphs [ cite the Formatted: Not Highlight Deleted: analogue to 51.166(b)(3) and (b)(23)] of this section ) occur. Deleted: an

Deleted: paragraph [ cite the analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section. Formatted: Font: Helv, 10 pt, Font color: Black Deleted: revised
Formatted: Tab stops: 3.25", Centered

Formatted: Not Highlight*** E.O. 12866 Review

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Page 112 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 t he 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 provi ded 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 n ew major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR pollutant t hat is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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: Deleted:*** E.O. 12866 Review

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Page 113 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (i) At a new stationary source that will emit or have the potential to emit 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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, perfluorocarbo ns, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 po llutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 40 CFR 52.21 (a)( 2 )(iv ) (2007)) and a significant Formatted: Subscript

Formatted: Subscript

Deleted: [ cite the analogue to 51.166

Formatted: Not Highlight Deleted: 7 Formatted: Not Highlight Deleted: )] of this section )*** E.O. 12866 Review

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Page 114 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 net emissions increase (as def ined in paragraphs 40 CFR part 52.21 (b)(3) and (b)(23 )(i) (2007)) occur. 40 CFR 52.21 (2007) is presently incorporated by reference into Mississippi’s plan
at EPA

- approved Mississippi Commission on Environmental Quality Rule APC

- S

- 5
. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calcul ated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 40 CFR 52.21 (b)(23)(ii )(2007). **Subpart AA –**  **Missouri** 12. Section 52.1323 is amended by adding paragraph (n) to read as follows: **§ 52.1323 Approval status.** 
* * * * * (n)(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in this subpart apply to stationary sources of greenhouse ga s (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: Deleted: [ cite the state analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section ) Deleted:

Deleted: paragraph [ cite the analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section.*** E.O. 12866 Review

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Page 115 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (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 em it 75,000 tpy CO 2 e 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 t py CO 2 e 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: (i) At a new stationary source that will emit or have the potential to emit 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or chang e in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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, perfluorocarb ons, and sulfur hexafluoride. Deleted: Formatted: Subscript Deleted: (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 (CO 2 e) 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 re sultant value from paragraph (n)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. ¶ (iii ) t he 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 CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e 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 add ing 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

...*** E.O. 12866 Review

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Page 116 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (ii) the term tpy CO2 equivalent emissions (CO 2 e) 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 p ollutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph ( n )(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e . (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 40 CFR 52.21 (a)( 2 )(iv )) and a significant net emissions increase (as defined in 40 CFR part 52.21 (b)(3) and (b)(23 )(i)) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 40 CFR 52.21 (b)(23)(ii ). **Subpart EE –**  **New Hampshire**  13. Section 52. 1522 is amended by adding paragraph (c) to read as follows: **§ 52. 1522**  **Approval status.**
* * * * * Deleted: c

Deleted: [ cite the analogue to 51.166 Formatted: Not Highlight Deleted: 7 Formatted: Not Highlight Deleted: )] of this section ) Deleted: paragraphs [ cite the state analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section ) Deleted: paragraph [ cite the analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section. Deleted: 14
. Deleted: 1622 Deleted: revised Deleted: **1622** Deleted: (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 satisfies all requirements of Part D of the Clean Air Act, as amended in 1977, except as noted below. ¶ (b*** E.O. 12866 Review

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Page 117 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (c )(1) Insofar a s 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 pr ovided 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 CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR polluta nt that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to e mit 100,000 tpy CO 2 e, when such stationary Deleted: b

Deleted:

Deleted: b*** E.O. 12866 Review

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Page 118 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this subsection ( c )

– (i) the term greenhouse g as shall mean the air pollutant defined in 40 CFR 86.1818

- 12(a) as the aggregate group of six greenhouse gases: Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissi ons (CO 2 e) 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 publis hed at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph ( c )(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significa nt emissions increase (as calculated using the procedures in 40 CFR 52.21 (a)( 2 )(iv )) and a significant net emissions increase (as defined in paragraphs 40 CFR part 52.21 (b)(3) and (b)(23 )(i)) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR Formatted: Subscript

Deleted: b

Formatted: Subscript

Deleted: b

Deleted: [ cite the analogue to 51.166 Formatted: Not Highlight Deleted: 7 Formatted: Not Highlight Deleted: )] of this section ) Deleted: [ cite the state analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section )*** E.O. 12866 Review

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Page 119 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 pollutant, and “significant” is defined as 75,000 tpy CO 2 e in stead of applying the value in 40 CFR 52.21 (b)(23)(ii ).
**Su bpart GG**  **– New Mexico**  14. Section 52. 16 34 is amended by adding paragraphs (d) and (e ) to read as follows: **§ 52.**  **1634 Significant deterioration of air quality**  **.**

* * * * * ( d )(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in New Mexico’s approved plan apply to stationary sources of greenhouse gas (GHGs) emissions, the Administrator approves that application only to the extent that GHGs are “subject to regulation", as provided in this 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 CO 2 e or more;

or (ii) The stationary source is an existing major stationary source fo r a regulated NSR pollutant that is not GHGs, and also Deleted: paragraph [ cite the analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section. Deleted: 15
. Deleted: 1772 Deleted: paragraph (c Deleted: **1772 Approval status** 

Deleted: c
Deleted: this subpart

Deleted: c*** E.O. 12866 Review

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Page 120 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to em it 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this subsection ( b )

– (i) the term greenhouse ga s shall mean the air pollutant defined in 40 CFR 86.1818

- 12(a) as the aggregate group of six greenhouse gases: Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissio ns (CO 2 e) 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 publish ed at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. Deleted:

Deleted: c

Formatted: Subscript

Deleted: c

Formatted: Subscript*** E.O. 12866 Review

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Page 121 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (B) Sum the resultant value from paragraph ( b )(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significan t emissions increase (as calculated using the procedures in the EPA

- approved New Mexico Environment Department (NMED) rules at New Mexico Administrative Code (NMAC) 20.2.74.200 , Subsection D ) and a significant net emissions increase (as defined in the EPA

- approved NMED rules at NMAC 20.2.74.7, paragraphs (AK), (AV ), and ( A W) ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in the EPA

- approve d NMED rules at Table 2 of NMAC 20.2.74.502
. ( e )(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in Bernallilo County/City of Albuquerque’s approved plan apply to stationary sources of greenhouse gas (GHGs) emi ssions, 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 regulati on.” (2) Beginning January 2, 2011, the pollutant GHGs is subject to regulation if: Deleted: c

Deleted: [ cite Formatted: Not Highlight Deleted: analogue to 51.166(a)(7)(iv)] of this section

Deleted: [ cite the state analogue to 51.166(b)(3) Formatted: Not Highlight Deleted: b)(23)] of this section )

Deleted: paragraph [ cite the analogue to 51.166(b)(23)(ii)] Deleted: this section*** E.O. 12866 Review

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Page 122 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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, hydrofluorocarbo ns, perfluorocarbons, and sulfur hexafluoride.*** E.O. 12866 Review

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Page 123 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 greenhou se 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 co mpute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in the EPA

- approved Bernallilo County/City of Albuquerque rules at NMAC 20.11.61.11, Subsection D) and a signifi cant net emissions increase (as defined in the EPA

approved Bernanillo County/City of Albuquerque rules at NMAC 20. 11
. 61 .7, paragraphs ( OO ), ( YY ), and ( ZZ )) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calc ulated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in the EPA

- approved Bernallilo County/City of Albuquerque rules at Table 2 of NMAC 20.11.61.27. **Subpart II –**  **North Carolina** *** E.O. 12866 Review

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Page 124 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 r egulation", 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 stat ionary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regul ated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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:*** E.O. 12866 Review

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Page 125 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (i) At a new stationary source that will emit or have the potential to emit 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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 CO 2 equivalent emissions (CO 2 e) sh all represent an amount of GHGs emitted, and shall be computed as follows: (A) Multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (c)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii ) the term emissions increase shall mean that a significant net emissions in crease ( as defined in paragraphs 40 CFR 51.166(b)(3) (1996) and 40 CFR 51.166(b)(23)(i) (1996) )*** E.O. 12866 Review

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Page 126 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 occur s . 40 CFR 51.166 (1996) is presently incorporated by reference into North Carolina’s plan at EPA

- approved North Carolina Rule 15A NCAC 02D

- .544 . For the p ollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 51.166(b)(23)(ii) (1996). **Subpart KK –**  **Ohio** 16. Section 52.1873 is amended to read as follows: **§ 52.1873 Approval status.**  (a) With the exceptions set forth in this subpart the Administrator approves Ohio ’s plan for the attainment and maintenance of the National Ambient Air Quality Standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds the plan satisfies all the requirements of Part D, Title 1 of the Clean Air Act as amended in 1977, except as noted below. In addition, continued satisfaction of the requirements of Part D for the ozone portion of the SIP depends on the adoption and submittal of RACT requirements by January 1, 1981 for the sources covered by CTGs between January 1978 and January 1979 and adoption and submittal by each subsequent January of additional RACT requirements for sources covered by CTGs issued by the previous January. Deleted: revised

Formatted: Not Highlight*** E.O. 12866 Review

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Page 127 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (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 regul ation.” (2) Beginning January 2, 2011, the pollutant GHGs is subject to regulation if: (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e o r 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 100,00 0 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary Deleted:*** E.O. 12866 Review

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Page 128 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,00 0 tpy CO 2 e 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, hydrofluorocar bons, perfluorocarbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) shall represent an amount of GHGs emitted, and shall be computed as follows: (A) Multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 3745

- 31

- 01( III )(4) of Ohio’s Administrative Code) and a significant net emissions increase (as defin ed in paragraphs 3745

- 31

- 01, paragraphs ( SSS ) and ( LLLLL )(1) of Ohio’s Administrative Code) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be Formatted: Subscript

Formatted: Subscript

Deleted: (A)*** E.O. 12866 Review

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Page 129 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in paragraph 3745

- 31

- 01( LLLLL )(2) of Ohio’s Administrative Code. **Subpart LL –**  **Oklahoma** 17. Section 52.192 9 is amended to read as follows: **§ 52.1929**  **Significant deterioration of air quality.** 

* * * * * ( c )(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in Oklahoma’s approved plan apply to stationary sources of greenhouse gas (GHGs) emissions, the Administrator approves that application only to the extent that GHGs are “subject to regulation", as provided in this 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 subj ect to regulation if: (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also*** E.O. 12866 Review

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Page 130 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e or more; and, (3) Beginning July 1, 2011, in addition to the pro visions 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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 CO 2 equivalent emissions (CO 2 e) 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 wa rming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials.*** E.O. 12866 Review

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Page 131 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using EPA

- approved procedures in Oklahoma Air Pollution Control Regulation 1.4.4(b) ) and a significant net emissions increase (as defined in the EPA

- approved Oklahoma Air Pollution Control Regulation 1.4.4 (b)(3) and ( 22) , definiti ons for “net emissions increase” and “sign ificant ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 1.4.4 (b)( 22) of the EPA

- approved definition for

“ significant ” of Oklahoma’s Air Pollution Control Regulations
. **Subpart OO –**  **Rhode Island** 18. Section 52.2072 is amended 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 th e Clean Air Act. Furthermore, the Administrator finds the plan satisfies all requirements of Part D, Title I, of the Clean Air Act, as Deleted: the Deleted: [ cite the analogue to 51.166(a)(7)(iv)] of this section ) Deleted: paragraphs [ cite the state analogue to 51.166

Formatted: Not Highlight Deleted: b)(23)] of this section

Deleted: pa ragraph [ cite the analogue to 51.166 Formatted: Not Highlight Deleted: 23)(ii)] Deleted: this section. ¶ 17 . Section 52.1922 is revised to read as follows: ¶ **§ 52.1922 Approval status. ¶**  (a) With Deleted: 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 regulat ion", 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 s ource is a new major stationary source Deleted: a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more; or ¶ (ii) The stationary source is an existing major stationary sour ce

... Deleted: net emissions increase (as defined in paragraphs [ cite the state analogue to 51.166(b)(3) and

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Page 132 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 amended in 1977, except as noted below. In addition, continued satisfaction of the requirements of Part D for the ozone p ortion 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 requiremen ts 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 CO 2 e or more;

or (ii) The stati onary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also*** E.O. 12866 Review

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Page 133 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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, perfluorocarbo ns, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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. Deleted:

Formatted: Subscript

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Page 134 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (B) Sum the re sultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 9.1.1 of Rhode Island’s Air Pollution Control Regulation No. 9 ) and a significant net emissions increase (as defined in 9.1.24 and 9.1.34 of Rhode Island’s Air Pollut ion Control Regulation No. 9 ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of app lying the value for “any other pollutant” in 9.1.34 of Rhode Island’s Air Pollution Control Regulation No. 9
. **Subpart PP –**  **South Carolina** 19. Section 52.2122 is amended by adding paragraph (c) to read as follows: **§ 52.2122 Approval status.** 
* * * * * (c)(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in this subpart apply to stationary sources of greenhouse ga s (GHGs) emissions, the Administrator approves that application only to the extent that GHGs are “subject to regulation", as provided in this subsection Deleted: [ cite the analogue to 51.166(a)( 7)(iv)] Formatted: Not Highlight Deleted: this section Deleted: paragraphs [ cite the state analogue to 51.166(b)(3) Formatted: Not Highlight Deleted: (b)(23)] Formatted: Not Highlight Deleted: this section

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Page 135 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (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 em it 75,000 tpy CO 2 e 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 t py CO 2 e 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 em it 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this subsection (c)

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Page 136 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (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, hydro fluorocarbons, perfluorocarbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 re sultant value from paragraph (c)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in Sout h Carolina Air Pollution Control Regulations and Standards (South Carolina Regulations) 61

- 62.5, Stan dard No. 7, paragraph (a)( 2 )(iv ) ) and a significant net emissions increase (as defined in South Carolina Air Pollution Control Regulati ons and Standards (South Carolina Regulations) 61

- 62.5, Standard No. 7, paragraphs (b)( 34 ) and (b)( 49)(i)) occur. For the pollutant GHGs, an emissions increase shall be based on tpy
CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 Formatted: Subscript

Deleted: [ cite the analogue to 51.166

Formatted: Not Highlight Deleted: 7 Formatted: Not Highlight Deleted: )] of this section )

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Page 137 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 tpy CO 2 e instead of applying the value in South Carolina Air Pollution Control Regulations and Standards (S outh Carolina Regulations) 61

- 62.5, Standard No. 7, paragraph (b)( 49 )(ii ). **Subpart QQ –**  **South Dakota** 20. Section 52.2172 is amended 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 requirement s 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 appl ication 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 pol lutant 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 Deleted: paragraph [ cite the analogue to 51.166

Formatted: Not Highlight Deleted: 23 Formatted: Not Highlight Deleted: )] of this section.

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Page 138 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary sou rce is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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, perfluorocarbo ns, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) shall represent an amount of GHGs emitted, and shall be computed as follows: Deleted:

Formatted: Subscript

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Page 139 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (A) Multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the po llutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 40 CFR 52.21 (a)( 2 )(iv )) and a significant net emissions increase (as defined in paragraphs 40 CFR part 52.21 (b)(3) and (b)(23 )(i)) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NS R pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 40 CFR 52.21 (b)(23)(ii ). **Subpart RR –**  **Tennessee** 21. Section 52.2222 is amended by adding paragraph (d) to read as follows: **§ 52.2222 Approval status.** 
* * * * * (d)(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in this subpart apply to stationary sources of greenhouse ga s (GHGs) emissions, the Administrator approves that application only to the extent that Deleted: [ cite the analogue to 51.166

Formatted: Not Highlight Deleted: 7 Formatted: Not Highlight Deleted: )] of this section )

Deleted: [ cite the state analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section )

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Page 140 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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 em it 75,000 tpy CO 2 e 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 t py CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increa se of 75,000 tpy CO 2 e or more. (4) For purposes of this subsection (d)

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Page 141 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (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, hyd rofluorocarbons, perfluorocarbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 re sultant value from paragraph (d)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in Tennessee Air Pollution Control Regulation 1200

- 03

- 09

- .01 (4) (c) ( 4 ) and a significant net emissions increase (as defined in Tennessee Air Pollution Control Regulation 1200

- 03

- 09

- .01, paragraphs (4) ( b )( 4 ) and ( 4) ( b)( 24 ) (i)) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in Tennessee Air Pollution Control Regulation 1200

- 03

- 09

- .01, paragraph (4) ( b)( 24 )(ii ). Formatted: Subscript

Deleted: [ cite the analogue to 51.166(a)( 7)(iv)] of this section

Deleted: [ cite the state analogue to 51.166(

Formatted: Not Highlight Deleted: 3 Formatted: Not Highlight Formatted: Not Highlight Deleted: 23)] of this section )

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Page 142 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 **Subpart TT –**  **Utah** 22. Section 52.2323 is amended 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) emi ssions, 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 regulati on.” (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 tp y CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also Deleted: revised

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Page 143 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75 ,000 tpy CO 2 e or more. (4) For purposes of this 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, hydrofluoro carbons, perfluorocarbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 gre enhouse 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. Deleted:

Formatted: Subscript

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Page 144 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 40 CFR 52.21 (a)( 2 )(iv )) and a significant net emissions increase (as defined in paragraphs 40 CFR part 52.21 (b)(3) and (b)(23 )(i)) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in 40 CFR 52.21 (b)(23)(ii ). **Subpart UU –**  **Vermont** 23. Section 52.2372 is amended to read as follows: **§ 52.2372 Approval status.**  (a) With the exceptions set forth in this subpart, the Administrator approves Vermont’s plan as identified in § 52.2370 for the attainment and maintenance of the national standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds the plans satisfy all requirements of Part D, Title I, of the Clean Air Act, as amen ded 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 betwee n January, Deleted: [ cite the analogue to 51.166

Formatted: Not Highlight Deleted: 7 Formatted: Not Highlight Deleted: )] of this section )

Deleted: [ cite the state analogue to 51.166 Formatted: Not Highlight Deleted: )] of this section )

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Page 145 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 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) provisi ons 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 CO 2 e 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 increas e of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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: Deleted:*** E.O. 12866 Review

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Page 146 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (i) At a new stationary source that will emit or have the potential to emit 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or chang e in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this 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 CO 2 equivalent emissions (CO 2 e) 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 t he resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in the definitions for “actual emissions” and Formatted: Subscript

Formatted: Subscript

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Page 147 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 “allowable emissions” under section 5

- 101 of Chapter 5, subchapter I of Vermont’s Air Pollution Control Environmental Protection regulations ) and a significant net emissions increase (as define d in the definitions for “significant” under section
5

- 101 of Chapter 5, subchapter I of Vermont’s Air Pollution Control Environmental Protection regulations ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in the definition of “major modification” under section 5

- 101 of Chapter 5, subchapter I of Vermont’s Air Pollution Control Environmental Protection regulations
. **Subpart VV –**  **Virginia** 24. Section 52.2423 is amended by adding paragraph (t) to read as follows: **§ 52.2423 Approval status.** 
* * * * * (t)(1) Insofar as the Prevention of Significant Deterioration (PSD) provisions found in this subpart apply to stationary sources of greenhouse ga s (GHGs) emissions, the Administrator approves that application only to the extent that GHGs are “subject to regulation", as provided in this subsection Formatted: Not Highlight

Deleted: paragraphs [ cite the state analogue to 51.166(b)(3) and (b)(23)] of this Formatted: Not Highlight

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Page 148 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (t), and the Administrator takes no action on that application to the extent that GHGs are not “subject to regulation.” (2) Beginning January 2, 2011, the pollutant GHGs is subject to regulation if: (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to em it 75,000 tpy CO 2 e 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 t py CO 2 e 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 em it 100,000 tpy CO 2 e; or (ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more. (4) For purposes of this subsection (t)

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Page 149 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (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, hydro fluorocarbons, perfluorocarbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 ea ch gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in 9 VAC 5

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- 1605 G of the Commonwealth of Virginia’s Administrative Code ) and a significant net emissions increase (as defined in in the definitions for “net emissions increase,” “significant” subparagraph a., and “significant

e missions increase” under 9 VAC 5

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- 1605 C of the Commonwealth of Virginia’s Administrative Code ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollu tant, and “significant” is defined as 75,000 tpy CO 2 e Formatted: Subscript

Deleted: [ cite Formatted: Not Highlight Deleted: analogue to 51.166(a)(7)(iv)] of this section Deleted: paragraphs [ cite Formatted: Not Highlight Deleted: state analogue to 51.166(b)(3) Formatted: Not Highlight Deleted: (b)(23)] of this section*** E.O. 12866 Review

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Page 150 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 instead of applying the value specified in the definition for “significant” subparagraph b. under 9 VAC 5

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- 1605 C of the Commonweal th of Virginia’s Administrative Code
. **Subpart YY –**  **Wisconsin** 25. Section 52.2572 is amended to read as follows: **§ 52.2572 Approval status.**  (a) With the exceptions set forth in this subpart, the Administrator approves Wisconsin’s plans for the attainment and maintenance of the National Ambient Air Quality Standards under section 110 of the Clean Air Act. Furthermore, the Administrator finds the plans satisfy all requirements of Part D, Title I, of the Clean Air Act as amended in 1977, except as noted below. In addition, continued satisfaction of the requirements of Part D for the Ozone portion of the State Implementation Plan depends on the adoption and submittal of RACT requirements on: (1) Group III Control Techniques Guidelin e 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 Sta te’s schedule contained in the 1982 Ozone SIP revision for Southeastern Wisconsin. Deleted: in paragraph [ cite the analogue to 51.166(b)(23)(ii)] of this section

Deleted: revised

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Page 151 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 (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 Adm inistrator 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) Begin ning January 2, 2011, the pollutant GHGs is subject to regulation if: (i) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more;

or (ii) The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e 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 CO 2 e; or ( ii) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary Deleted:*** E.O. 12866 Review

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Page 152 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or mo re. (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, perfluoroc arbons, and sulfur hexafluoride. (ii) the term tpy CO 2 equivalent emissions (CO 2 e) 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 th e pollutant GHGs, by the gas’s associated global warming potential published at Table A

- 1 to subpart A of 40 CFR part 98

– Global Warming Potentials. (B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this section for each gas to compute a tpy CO 2 e. (iii) the term emissions increase shall mean that both a significant emissions increase (as calculated using the procedures in NR 405.025 of Wisconsin’s Administrative Code ) and a significant net emi ssions increase (as defined in NR 405.02, paragraphs (24), (27)(a), and ( 27m) of Wisconsin’s Administrative Code ) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be Formatted: Subscript

Formatted: Subscript

Deleted: [ cite the analogue to 51.166(a)(7)(iv)]

Formatted: Not Highlight Deleted: this section

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Page 153 of 153 Deleted: Draft Deleted: AP86 Deleted: 2010111 8 calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in NR 405.02(27)(c) of Wiscons in’s Administrative Code. Deleted: paragraph [ cite the analogue to 51.166(b)(23)(ii)] Deleted: this section.

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