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)

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 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

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 Final Rule

◦ Same as interim final/proposal

◦ Rule becomes effective on May 1, or date of 

publication (if after May 1)

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 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

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 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 Act is 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. 

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 Sources can rely on the approved SIP to get 

permits (based on recent Cinergy case)

 Response:

 Based on a 7th 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.

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 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

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 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. 

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 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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