### Summary of Rule and Significant Comments

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### Process  

### Issued Interim Final Rule and Proposal in December 2010  

### Proposed rule comment period ended February 14  

### Held Public Hearing in Dallas January 14  

### Interim Final will expire April 30  

### Final Rule to take effect May 1(or date of publication)

2 

### Proposal/Interim Final ◦ EPA erred in approving the Texas SIP in 1992 because Texas failed to ensure that they could regulate pollutants newly subject to regulation (including GHG) ◦ EPA is correcting that error using section 110(k)(6) of the Clean Air Act ◦ Texas’s SIP approval will be corrected to be a partial approval and partial disapproval ◦ A FIP will be issued to allow EPA to be the PSD permitting authority for GHG in Texas ◦ Interim Final Rule set to expire on April 30, 2011

3 

### Final Rule ◦ Same as interim final/proposal ◦ Rule becomes effective on May 1, or date of publication (if after May 1)

4 

### Received over 5,300 comments ◦ Vast majority from mass comment campaigns from Sierra Club, NWF, Greenpeace supporting EPA’s action ◦ 6 Industry Associations ◦ 3 Texas Government entities ◦ 2 Environmental/Public Interest Groups

5 

### PSD is not self-executing, so there is no need for this rule (no permit needed, so no need for permitting authority)  

### Response  We think the language in the Actis clear.  165(a)(1) No major emitting facility . . . may be constructed . . . unless a permit has been issued for such facility in accordance with this part setting forth emissions limitations for such facility which conform to the requirements of this part.

6 

### Sources can rely on the approved SIP to get permits (based on recent Cinergy case)  

### Response:  Based on a 7 th Circuit case for a source in a nonattainment area. The non -

attainment provisions are implemented through the SIP, which is different from the PSD issue here. Under PSD, sources are obligated by the statute [165(a)(1)] to get a permit before constructing.  Without this action, there would be no permitting authority for GHG, so sources can’t obtain permits that comply with all requirements.
7 

### EPA can not use § 110(k)(6) of the CAA to make this type of change ◦ Limited to correcting errors such as typos, other non-controversial changes ◦ Must use full notice and comment rulemaking to make this type of change ◦ EPA did not make an “error” at the time it approved the Texas SIP, it knew what it was doing

8 

### Response:  We think 110(k)(6) allows us to make this kind of correction when our previous action was “in error.”  We did know that the Texas SIP did not automatically update to include pollutants newly subject to regulation. However, Texas did not provide assurances that it had adequate authority to regulate these pollutants. Texas’s response to EPA regarding GHG (that it had neither the authority or intent to regulate GHG) has made clear that our previous approval was in error.

9 

### EPA is treating Texas differently from other states ◦ Other states do not automatically update to incorporate new requirements, but we are not correcting our approval of their SIPs  

### Response  All other states have taken steps to regulate GHG, either by revising their SIPs or accepting a FIP, so we have not looked at whether we made an error in approving those SIPs.

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